IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 5*" DAY OF SEPTEMBER, BEFORE THE HON'BLE MR. JUSTICE A.N. VEAi$iUGOP:fiLA':zCiOV\i'riDvA., 1' 2 WRIT PETITION NO.20265/zozo7(éM?Ci§'C)'"V[3,.._'~i._;A BETWEEN: Sri Anwar Pasha, Aged about 63 years, S/0. Sheik Mohiuddin, 1 No.28, Saunders Road, ' Bangaiore. ' . - I PETITIONER (By Sri AND: EEEE h _ 'V t A' V 1. Dr.?--EraCh ' Aged'ijVn'aj,or. " 2. Dr.(Mrsju"KevtayIim.'HeraFd Gouid, aged"maJ_o_r,. I f..Boi:h a.re:c'5'i':i!dren of Rustomji P.Talati, ' ._Pr*ese:3_ti»y'residing at No.2401, . "N_ort'i~.« (j»!«E_ve,r, Wichita, ' Kansas "-"£37220, U.S.A. Represented by their Power;of attorney hofder A. ,Mr. Nariman Framroze Poonegar, _ Residing at No.18, "Church Street, Bangalore --- 560 001. 3. T.Hormus3'i, aged major, S/o. not known to plaintiff Residing at No.1/1, Cunningham cresent, Bangalore -- 560 052. 4. Riyazul Hassan Sheriff, Aged 59 years, I ' S/o. M.H.Sheriff, residing at No.20, ' * _ ' i Cockburn road, Cleveland Town, " Bangalore. ' (By Sri R.I.D'Sa, Adv. for C/Ry1..t:o~.R3~)_,, This writ petitioriieis' filed ur,ide't.,'i.~..rti.+.-lies 226 and 227 of the Constitution of India praying-i«.toi-setf-aside the order passed in O.S.35.31/19.95,» on I;A;e,No.5,.,fiiied under Order 6 Rule 17 CPC _order'_rdat¥ed ..1...O6.'20'1(_i,..,\_/_i_dTe Annexure ~-- A by the 37"' Add,i§--._Cit'y'l Civil'3u'dge,._i.'3angalore City and to direct the Court belcjwto"all,o'Wfj1..,A.iNo.5-._fiied for amendment, as it will not ch.ange the _nature ofpthe suit and to dispose off the matter ion:i5meFi3iS- " Tiiis' petition.»Ajcoh*ii.ng~o'n for preliminary hearing this day, the C-0,_ui*tma-deitiie,foliowing: QRDER =.riiVAri--t, petition is directed against an order dated Ai"01';-oe..2oi,i'o,._,passed by the learned xxxvn Addl. City Civil Judge, viéangaiore City, in O.S.No.3531/95, whereby I.A filed by the plaintiff under Order 6 ._'R.ul'e 1;? read with Section 151 of C.P.C to amend the plaint if -was dismissed. \/ / ,1 R.Es«ii§oii~i.o'ENTs'i V C' 2. The facts ieading to the filing of the writ petition in brief are: Petitioner has filed suit on o3.o6.1995_;a*ga.i.:iatggli1'tae«_ respondents for relief of permanent injunctiieni suit v.
based on an agreement of sale:..,4gdate–d “:4.A29.40?’;i1_’_9«8.7.’
Defendants 1 & 2 have fiiedgtheir writvten stagtement
November, 2000. DefendaVntt._V’d’ No.3 ‘izfiled memo
adopting the said In written
statement flied by defendants 2;’*it.’ii~Vas.’been contended
that, they tiadf.;ig…issuea ;nt$tiae.i ‘diatea.t:A 09.06.1988 and
cancel.lied”thiéfeggasiiéerfieiit or-“Eadie on account of the
purchasers.continufedz”defa.u..E-t, despite which the plaintiff
has a_cl_opted~ s_cheming_ methods. According to the written
~._Astae.te’ine-nt,»..the sai’ci”‘a’greement of sale was cancelled and is
no and subsisting.
“the issues have been struck and affidavit
;”‘evl.d_en.ce of the plaintiff has been flied. Said argument has
marked as Ex.P–1. Plaintiff filed LA No.5 on
-~0–E§).12.2009 under Order 6 Rule 17 C.P.C seeking
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amendment of the plaint to incorporate additional pieading
and an additional prayer i.e., for specific perforrnaric_e”–of
the agreement of sale and to execute the sale’ *
suit property in his favour by re_ce.iv_i_ng the'”baivance’_’_isai~ell”
consideration amount of Rs.8,87,S.QO;?_};i. ‘i’ The ‘r’n_a:in:u
stated in the affidavit in sup’por-t. of nth-eh:applicati§on~w.i.s that, * l’
vdespite clueldiiigencefi the pla_i_lnt:f_f –3guid.’not,._AAha_ve raised
the proposed pleading”s..V:’and–. necessary to
amend the plair:t_,_ as and willing to
perform ,1″O’ia_V}”‘e”Vc’:V’tions were filed on
behalf .,4,é,I,ifl’,3,,f¢~*-tllriiliyling the claim of the
plaintiff that, the amendment sought
wouid aiterjthe ‘entire of the suit, the claim of
specific performance is barred several years ago and the
for the suit and the proposed amendment
A”are-f’_ci,early._different and the application being baseless, is
false, fri__voi~ous, untenable and mischievous.
if The trial court upon consideration of the
‘ rnatter has not found merit in the prayer ftgamendment of
K.
the plaint and has dismissed I.A No.5. Hence, the plaintiff
has filed this writ petition to grant the relief.
5. Sri S.A.Mujeeb, learned advocate
the petitioner contended that, th-e””e’xe,cutionV.”of.
not in dispute; that the vendors had
the statutory clearances anld-..:p’ermissV’ions’,..,w’hic’h”th’ey did”
not obtain within the’time,.—ad.r_e.ed»__andlithe time was
subsequently extended”as.’per_the made on
Ex.P~1 for the to obtain
permissions”«w.._t’l’a-eiiim of the contract.
Learned tttt even till today, the
not obtained the statutory
permi_ssions”-andclearances as agreed, to finalise the sale
,,._Atrari.Sac;i.on.._under’theagreement and hence, there was no
_’r:=ee_d’,.fo-rap’th’e..:::p:etitioner to have approached the Court
earlier selesidriilg relief of specific performance of the
“._,»contract.f. Learned counsel contends that, the said material
A of the matter has not been considered by the Trial
Court. By placing strong reliance upon the decisions in the
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cases of PANKAJA AND ANOTHER VS. YELLAPPA V(‘D_) BY
L.Rs AND OTHERS (AIR 2004 sc 4102), P,ANcE;o’E.o
NARAIN SRIVASTAVA vs. KM. JYOTI
ANOTHER (AIR 1983 SC 462) and ~3A:r. ;:A;{ RAI?I’VivNiAVi\ivC)iHAR V
LAL vs. NATIONAL BUILDING :’i’—1Ai*5eRrAL”~suiémvtf,j”(AiR._
1969 SC 1267), learned wouid co,nVtenudJth’at, the’
triai court has failed to,__exerciAseVt’he j’urisdi’ct’ion. vested in it
to advance the cause ifihof the meritorious
appiication has”been,'”‘d’i’sn?{isVs:e«d’vi»«.on of wrong
approach to.–the’ submits that, the
be involved, could be
made mereiy because there is deiay
in fiiingii the the reiief of specific
performance, V’th.eflapp:iication ought not to have been
Vrejected,?wi.thou_t taking into consideration the fact that the
, ,.F/i|_ai’nti«iAff”‘
.__ir’:~i:,”‘bossession and enjoyment of the suit
V V’ _ proberty-Q ‘Learned counsei submitted that, by rejecting I.A
the triai court has committed irrationaiity and
‘i:i.ega*ii’ty. \)
-.
6. Sri R.I.D’Sa, learned advocate appearing for
the respondents 1 to 3, on the other hand, submittetfthat,
though the agreement is dated 29.o7.1s9§37s..gri’d’lits
cancellation on 09.06.1988, thet.suat.rnedgdi’o:3.o:s.i99vs V
was only for permanent injunctioniafid not for«.sp:ecifi’c._
performance of the contrawcti—..,,fie subnoaittfed seven’
after filing of the written stat.erner1t”‘an_d den’y*ing,.’the claim
of plaintiff, relief of was not sought,
within the three” year.sVV’peri1od_::atifealst the date the
defend ants ,.a_i,,¢_-49 _-Zfgiedit w.rittenVV_s_t’a:tement. Learned
counsel __ of specific performance
is ex~f*acie 0!-lie submitted that, triai has
commenced’_4 andV”‘h:eiic_e proviso of Rule 17 of Order 6
C.P.,C_§f:A’is attract’ed,.fiLea:rned counsel further submitted that,
thvlefirecord it is ciear that there was no due diligence
“of ‘w_’riat’so’ever”V~f..ri’a.ture on the part of the plaintiff and hence
the”‘t«rialv’..V:c.o’u’r’t is justified in dismissing I.A No.5. He drew
.j”my,.atte’ntion to the observations in the judgment of this
e.”‘cofu’rt*”‘dated 23.09.2008 passed in MFA No.8323/2005 and
-submitted that, the injunction order granted on
‘r/
s.
03.06.1995 was vacated. Learned counsel’.–made
submissions in support of the findings and conclVu’si”¢dV”~vof
the trial court in the impugned order.
7. Having heard the learned :.<:4oAunsel":4.at–.'i'e~n:gth,1tI
have perused the writ papers, Thel"poi'nt for'con.'s_ideriation::";
is, V
Whether the imp;u'gned_'_'io'r'dei':.i,.$\~'».iVr'rationala illegal?
8. The g.C0urt:_.w~d_u:id granting the
prayer for :$ma:d’e’ prior to the
commencersnreriitllogli is of the view that if
such a party, who has prayed
for such”a_n’ suffer irreparable loss and
injury’. There.’ is no’ absolute rule that in every case where a
. i°’relie’f«V’ig:,,,”iUaFred because of limitation, amendment should
t–not_r-be An amendment can be allowed to avoid
further __l’itiga’tion and to decide the real questions in
3″‘~.__V”controi)e.rsy between the parties.
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decide the same, keeping in View the iaw laid down–in the
gudgment reported at AIR 1957 SC 357.
10. In the case of PANCHDEO NARA.:..Ai,7’sR1v2isTAvA–«r.
(supra), the appellant/plaintiff
withdrawal of certain; amount d.epris,i:ted
defendant/respondent in himself as
‘uterine brother’. Thv~.=.¥:4″‘iTrial{Courteaimlowed application
but in revision, the amendment
observing ‘dele_tion’::of ‘th:ei”wovrd:V~iiuterine’ has some
significance of either side to a very
great uwwasivchailenged, ailowing the
3i3Deal:dand«’. impugned judgment, it was
held that, ifV’.the*. Court was justified in holding
ivdgeletion’ “” “of the word ‘uterine’ has some
g_’sig:ni’fican_ce».’andjnay work in favour of either side to a very
g.reat e;<teni_:ii:;yet that itself would not provide any
'2__jurisdictio'n for rejecting the amendment in exercise of its
A ":i.re\g/jisional jurisdiction. The said decision and the ratio of
ialw laid down, has no appiication to the case on hand.
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11. The decision in the case of JAI RAI.,jR_AM
MANOHAR (supra) does not also aid the
petitioner. In the said case, piaintiff sued_i.n,’V_h’iisVV ._
name on March 11, 1950. On 3,uiy:’1i8,;, £952,
leave to amend the plaint togsue asA’a,p:-‘oprieto-.i=V l~l;in.du
Joint Family business. was “‘no:_’l:repl”3:?f, to the
applicationto amend and the
Trial Court granted the.%«f’i%;vl;=.,’_’.~def%ndant in a
supplement writteVn~statenjei’it that, the plaintiff
was not as his 2 brothers
were ja’lS6 in any event, the
amendm.ent’_ from July 18, 1952 and on
that a_c_count,-. 1.’l’IeVVS”V.1..EitA7VVV3″”S:lV barred by limitation. The Trial
th’e”claim, but in appeal, it was held that,
gtheactioani..vva:sjinstituted in the name of non–»existing
person and’ut_hé plaintiff having failed to aver that action
fjwas sought in his individual name on account of some
A i~.l_bona””~«fide mistake or omission, the Trial Court was not
V____””.”co’mpetent to grant leave to amend the plaint and the
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amendment of the plaintiff couid not take retrospectively
and on the date of amendment, the action was barred by
law iimitation. In the appeai filed their again..st_,’_»t?i’on’fble_
Supreme Court has held that, a party cannot..:bei,’_irefu’sed:
just relief mereiy because of someé’mis’take-«, n.egi,i”g’e_r1ce,”in¥’«
advertance or even infraction of th__e’°.ruies o’f,p’rocedurve.”–..L
Noticing that, the name in whi’ch”‘-t.he plaintiff, the V
action was merely mis¥’+d,_escript’iorij,of”‘t.ifa,e o’ri’g’i’na’lV4 plaintiff,
no question of limitation..’ari’sieis::’an<dFthVel'_'piaint must be
deemed an h-ay"e"_j_vbee'nf'instituted in the
name of the date on which it was
instituted,__thellap-pea!pywasvvaliiowed. The said decision also
has no applyication t"o.VAthe'""case on hand, since in the instant
case,;"it,is Vnotuthle description which is sought to be
liamjeridedi, but an- addition of a substantial prayer
A"conyertivn'g..,,'ttawe;'suit from the permanent injunction to the
one'"for ..s"peci'fic performance of the contract.
if The question is, whether the amendment of
the plaint, which was prayed after more than 14 years of
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filing this suit and after 8 years of filing the written
statement, if the claim was already barred b_y-ij”elajw,”‘–of
limitation, can be allowed?
13. The piaintiff ciaims hismrégyht
based on the agreement dated
The suit was instituted a’ftei*-….abodtg’?. _years__'”i.»e.,’ on * ‘
03.06.1995. Defendants 1 g&_u:2.__h’a_ve “nimyeythyéi written
statement during Noverntaer”:{OVOC,”‘WhEeh–.,was adopted by
the defendant _No._.3 in the written
statement, _ .the have speoificaily denied the
ciaim ofV’th’e.:’:p!_ain:t}iff isfiétvivproperty and they also
stated Vthatthe. ag};een1en*t,:’was cancelied by issuing iega!
noticeoni”09;’O6,E.9A8–8″and is not enforceabie. The
suit ha\/’i’n-gbeen based on the said agreement
“in”t.he stand taken by the defendants in the
vslrittein sta’it:e_n.i;ent, the piaintiff ought to have sought the
ixhyrelief of’ds;.pecEfic performance of the contract, immediateiy
A “:f”afte”r”~«the written statement was filed or atieast within three
years period from the date thereof. Instead, I.A.No.5 for
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amendment was filed on 09.12.2009, though this____court
while allowing MFA f\io.8323/2005 fiied by the deferifdan-ts
has observed that, the piaintiff has failed to .
the suit schedule house was delivered to’hih%:::.’_t;.nd’e,r’_they it
agreement dated 29.07.1987 and ‘thatgme piaimfrr
filed the suit for specific pe’:’toi*:nance- to -‘said = L’
agreement. In my opinion, thVe.té’ivi.s absolLite!y_no_diligence
on the part of the pV!a*initiff.’–., ‘§Th.eu”‘i”-e’asons stated in the
affidavit filed in 5-uvpp0:ft'”orI,A.!\Eo.’;e5_ i:e’.b§j,idi and hence, has
rightiy beennot the tjria:
of ,§ett_l’e’dVflprincip!es of law, in the
matteryzof a!!ow.ing’.”‘o.r_’i’r’eiecti.i«Iig the prayer for amendment
of pleading”, as._’a rule, the courts decline to aiiow
C’
-“‘~..,_Aamvejndr,n.erats, if ‘a”i=resh suit on the amended claim would
‘Vi. itilm-itation on the date of the appiication.
15.” reading of the written statement fiied by
J’drefenda’rits 1 & 2 would show that, the case pieaded by the
-_’petitioner/plaintiff has been stoutly denied. It has been
-coriizended that, agreement of sale has been cancelied, the
‘e
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piaintiff has no right over the suit property and the
agreement is no ionger vaiici or subsisting. Hence~~.ii’-..st;.ch
stand was taken in the written statement ~
open for the piaintiff to have kept qiiite till’.U9′.”1.2′.:2lCJ’t:39′.and: “‘ it
seek relief of specific performa’nce:.f=..:’The_’
limitation is certainly one gevs*nia_ne for. consicie-ratio.nVVof the –. ‘
matter.
16. In the case of’ .x_gil;Iig1iAR GOEL VS.
KUSUM aHuw.A.iiiA.. reported;in«,l(*i_99?)V:1i sec 457, it has
been held ass ‘i 5 V.
leaned Senior Counsel
appearinglvfor-.Atl”ie ‘appellant, has submitted that on the
dateoffilinglof”the~..application for amendment a suit
for sple’cii’ictpe–rfo’rrnlance of the contract was barred by
~ ‘5,lin_riitation irimew of the provisions contained in Article
, , .theVLimitation Act, 1963 and the High Court was
VinT’err(;rp”i~in..~~allowing the amendment and to convert a
suit declaration into a suit for specific performance
after the expiry of the period of limitation prescribed
for “filing of the suit for specific performance. In
it lrfsupport of his submission Shri Dhavan has placed
reliance on the decision of this Court in Mani La! V.
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Oriental Fire & General Insurance Co. Ltdi wherein
this Court has upheld the order disallowing
amendment of the plaint and has laid down that under
Order 6 Rule 17 CPC an amendment cannot be
allowed in cases after the suit was barred by limitation
during the pendency of the proceedings.
4. In the instant case the lfligh Court. to
have proceeded on the basis that «gin«__the’
plaintiff-respondent has made;_out_ Ala caselfor
performance and nothingizew had :beenl’isought..for by = L’
way of amendment. We pperusedithe plaint. We
are unable to agree viewloflvthe High
Court. It is no _the plaint the
pla1’ntiff–responden~t«has’–.ma;3e.”v_a;”.reference to the
agreement. It-is”‘havi_ng requested the appellant to
eirecutel But there is nothing in the
plaint to Vshow ” the plaintiff–respondent was
; ‘s”eeking specific performance of the contract. The suit,
‘:’ag¢,–t..framed. 1;-ya’ suit for declaration and injunction
ikwas sought to be converted into a suit for
V”l…’py«spe?5tfic’perfonnance by the plaintiff~respondent by
way’ amendment in the plaint in 1993 when the
claim for specific performance had become barred by
A’ ‘ limitation. The submission of Shri Dhavan is that even
–*on the date of the filing of the suit, the claim for
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specific performance was barred by limitation. _We do
not propose to go into that question.
5. in our opinion, therefore, the impugned, V’
the High Court allowing the amendm_£”n’t= plaint ‘*
cannot be sustained and hasvto set”aside7?_i ” it
17. In the case of.__T.L.rV§!4f5DUKRiS’ijia;$tA_T§\?S..:ii»
LALITHA RAMCHANDRA RAO,’V’Vl’r’eborted “at..Vt(1’é97j) 2 scc
611, it has been held
“7. Under theseHcircunista,nc’e’s,’ be held that
for the purpose material is that
the to runjffrorn the date the parties
have of the contract. The
tolble filedllyyithin three years from the
date’ under the contract. Since the
applic_ationlV’for’Alatnendrnent of the plaint came to be
it filed ai’ter the expiry of three years. certainly it
‘5clj.anged the icausve of action as required to be specified
‘ ” » invdgtheplaint. The suit for mandatory injunction is filed
yarrd”‘theiAVs’pecific performance was sought for by way of
it aI1V.E.3’1’:Il.’l:§t?l’AiKtIlI’I1€I’lT.. The cause of action is required to be
stated initially in the plaint but it was not pleaded. It
b * 4_ was sought to be amended, along with an application
itfor specific performance which, as stated earlier, was
rejected. Under these circumstances, even by the date
of filing of the application, nan’1ely\:–1l-1992. the suit
4.
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questioned before the l-ion’ble Supreme Court, it has:-___been
held that, the Court would as a rule decline”.to:.f”,al:l’ow
amendments, if a fresh suit on the amended.,”:claiirri:
be barred by limitation on thevdate.Aofffthellfaippllilcation-.é
When by an amendment, an appaireritly:$tim’e1barred”
is introduced for the first tlinfieV,,_there.__w’o.uld: to bet”?
some explanation and the Qla.i–nti,ff~.w’o.uld .ha’ve..toV§show his
bonafides, particularly by way of an
amendment wo;;’id,_’ha\.fe’defeating the rights
created in:_,-they of time. The
of the plaintiffs would
not the plaint, more particularly
when theflaim’ become barred by time.
Noticiynlgttthat thendefendant having set up a rival title on
V,tl”I€,xl3&S.lAS:A.O?€I§.i’E¥,l¢ deed dated 4-10-1985, the same having
ui2ot”.beenilfchalhjnped, it was held that, plaintiffs cannot be
V V _ permitted. to”; introduce a time barred claim, since there
.,,.’wtaSi_.towVering delay of more than 15 years. The appeal was
“t~_’aE.low’ed. The decision squarely applies to ‘the case on
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19. Considering the facts of the case, the in
I.A No.5 and the principles laid down in
noticed supra, I am of the view that, if the~’su-it:w:as:fi’led
the amended claim, it is an Ul’l(:.:l”lSi’.ll.4.i.’,(A3A.(‘1 ‘4p.osit’io-n”th-art’the
said claim was clearly barred py lirriitation L=.n’der,,AVrtiple
of the Limitation Act and hevncefthye allowing
the amendment the “facts and
circumstances of the all. Hence,
the trial court’isA;~jost.ifi.ed€ d.i_srni”s.s’in-gr:the application for
amendmerit, dleslpite the plea raised in
the 1 & 2, steps were
not tavkenll seek the relief of specific
performance’, Vatlea-st”wit”hin 3 years period commencing
. ,,rrorhi’ithe..dalie therefrom.
of the applicability of the proviso to
_ Rule””17v¥:of”€5rder 6 C.P.C, and plaintiff also not showing
.V.,’due._dilioence and also in view of the bar of limitation, the
-_t’ria’l’ ‘court is justified in dismissing LA No.5. There is
if -neither any procedural impropriety nor irrationality on the
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part of the trial court in dismissing LA No.5.___ The
impugned order is sound. Keeping in view the
circumstances of the case, the trial
refused to exercise the discretion__v.ested _-init'{:f;*:der,4_”_Rui’eV in
17 of Order 6 CPC.
In the result, the writ pe’tition filed Aitticllle 227
of the Constitution is” ‘zievoi’dW_of~:’;Ifne’ri_t. anttushvvali stand
dismissed with cost quanti:f_iec[l”:at Rsl}’:?t§.Q,Q(i/-, payable to
res pond ents to ~
0 » ” V
Zl’fi’d§5