Van Vibhag K.G.N.Sahkari ... vs Ramesh Chander & Ors

2. The appellant, Van Vibhag Karamchari Griha Niraman Sahkari Sanstha Maryadit, Indore (hereinafter referred to as `the appellant'), was constituted and registered under the Madhya Pradesh Cooperative Society Act, 1960 on 26.5.1970, for the purpose of 1 providing residential plots to the employees of the forest department of Madhya Pradesh Government.

3. On 28.3.1974, three farmers, namely Ramesh Chander (hereinafter referred to as `the first respondent'), Mahavir Singh and Chunni Lal, entered into an oral agreement with the appellant to sell their respective land measuring 2.039 hectares bearing khasra No. 203/2, 1.019 hectares bearing khasra No. 203/1 and 1.602 hectares bearing khasra No. 204/1, situated at village Chitawad tehsil and district Indore, to the appellant at Rs.2 lacs per hectare. On 25.1.1975, all the three farmers jointly received Rs.2000/- as earnest money as per the agreement dated 28.3.1974 and delivered possession of the said land to the appellant. The agreement to sell was executed and signed by all three farmers on 31.3.1976. The present dispute only concerns Ramesh Chander, i.e. the first respondent.

4. The Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter the Ceiling Act) was passed by the Central Government and enforced by the Government of Madhya Pradesh (MP) on 9.9.1976. The first 2 respondent filed details of the total vacant land possessed by him before the competent authority under the Ceiling Act on 24.12.1979 and also filed an exemption application under Section 20 of the Ceiling Act, in which he specified that land bearing khasra No. 203/2 was sold to the appellant.

6. On 26.4.1985, the Indore Development Authority declared a Scheme over including the disputed land. Accordingly, the Government of M.P. issued a notification under Section 4(1) of the Land Acquisition Act, 1894 with respect to the said land. On 17.6.1985, the first respondent filed an application to the District Collector, Indore stating that he had sold the disputed land to the appellant and possession of the same had been handed 3 over to the appellant, and that the first respondent did not have any right regarding the acquisition of the said land or to get compensation for the same. All proceedings regarding acquisition were to be referred to the appellant and he prayed that the said land be exempted from acquisition.

9. On 5.1.1987, the appellant filed a writ petition (No.39/1987) along with the first respondent in the High Court, for quashing the acquisition of the disputed land. The High Court issued an ad-interim injunction on 15.1.1987 staying further proceedings before the Land Acquisition Officer.

15. Thereafter, appellant by a legal notice dated 4.6.2000 called upon the first respondent to execute and register the sale deed of the disputed land in favor of the appellant and failing which the appellant threatened to file a suit for specific performance. The first respondent, by a legal notice dated 17.6.2000, refused to act in terms of the notice of the appellant dated 4.6.2000. In the meantime the appeal filed by the appellant against the order dated 8.10.1998 passed by the Trial Court refusing to grant temporary injunction, was also dismissed by the order dated 15.5.2002, and the findings reached by the Trial Court in its order dated 8.10.1998 were affirmed by the First Additional District Judge, Indore. The appellant did not carry the challenge any further against such concurrent refusal of its prayer for temporary injunction.

17. The first respondent filed an application under Section 114 and Order 47 Rule 1 CPC for a review of the order dated 10.3.2003. The same was dismissed by Court on 23.6.2003. The plaint was returned to the appellant for filing the same in the Court of competent jurisdiction as the suit exceeded the pecuniary jurisdiction of the Civil Court (category II).

18. Immediately on 25.6.2003, the appellant presented the plaint in the Court of 6th Additional District Judge, Indore along with an application under Section 14 of the Limitation Act, praying for exclusion of time spent in prosecuting the suit in the Court of 7th Civil Judge Class II, Indore (i.e. from 11.2.1991 to 23.6.2003). The plaint was transferred to the 19th Additional District Judge, Indore and was registered as COS No. 6A/2003.

19. Before the trial court, the appellant contended that on 11.2.1991, while instituting the suit, it had not 8 sought the relief of specific performance in view of the fact that no exemption under Section 20 of Urban Land Ceiling Act (hereinafter, `the Act') was obtained in respect of suit land. However, the said contention was rejected by the Trial Court on 23.8.2004 by a detailed order and the suit was dismissed. The trial court also dismissed the application under Section 14 of the Limitation Act filed by the plaintiff (appellant herein) praying for exclusion of time from 11.2.1991 to 23.6.2003.

34. Though the appellant has not subsequently filed a second suit, as to bring his case squarely within the bar of Order 2 Rule 2, but the broad principles of Order 2 Rule 2, which are also based on public policy, are attracted in the facts of this case.

32. We are in respectful agreement with the views of the Full Bench in the abovementioned decision and the principles decided therein are attracted here.

33. This Court is, therefore, of the opinion that the appellant had the cause of action to sue for Specific Performance in 1991 but he omitted to do so. Having done that, he should not be allowed to sue on that cause of action which he omitted to include when he filed his suit. This Court may consider its omission to include the relief of Specific Performance in the suit which it filed when it had cause of action to sue for 15 Specific Performance as relinquishment of that part of its claim. The suit filed by appellant, therefore, is hit by the provisions of Order 2 Rule 2 of the Civil Procedure Code.

Laxminarayan & Anr. reported in (2001) 6 SCC 163, if as a result of allowing the amendment, the basis of the suit is changed, such amendment even though allowed, cannot relate back to the date of filing the suit to cure the defect of limitation. (Para 9 at pg. 168-9) Those principles are applicable to the present case.

39. For the reasons aforesaid, this court is of the view that the plea of specific performance, which is a discretionary relief, cannot be granted to the appellant in this case. The Court below and the High Court were correct in their reasoning in dismissing the suit and the first appeal respectively.

40. The appeal, therefore, is dismissed. The parties are left to bear their own costs.