GAJANAN JAIKISHAN JOSHI Vs. PRABHAKAR MOHANLAL KALWAR

JUDGEMENT

(1.) This is an appeal from a judgment and order of a learned single Judge of the Karnataka High court.

(2.) Only a few facts are necessary to appreciate the controversy raised before us.

(3.) The appellant herein was the plaintiff in Original Suit No. 103 of 1981 in the court of 2nd Additional Civil Judge, Belgaum. It was the case of the appellant in the plaint that on 16/07/1976 the respondent defendant entered into an agreement in his favour for sale of the suit property comprising a shop and a bhatti room situated at Kirloskar Road, belgaum City for a sum of Rs. 20,000. 00. The appellant paid to the respondent as part consideration a sum of Rs. 5,000. 00 and pursuant to the agreement for sale the appellant was put in possession of the suit property. The sale agreement provided that the registered sale deed was to be executed by the respondent after securing a 'no Objection Certificate or permission from the competent officer as required under the Karnataka urban Land Ceiling Act and within one month of the grant of such permission. The respondent received the No Objection or permission as aforesaid on 31/03/1981 but failed to execute the registered deed of sale as provided under the said agreement. Hence, on 30/06/1981, the appellant filed the present suit. It may be observed here that in the plaint, there was no specific averment that the appellant was and had always been ready and willing to perform his part of the said agreement. The respondent filed a written statement raising several contentions and inter alia raised the contention that the suit was not maintainable for non-compliance with the provisions of S. 16 (c) of the Specific relief Act, 1963. The issue as to whether the suit was not maintainable on the aforesaid ground was directed to be tried as a preliminary issue. At this stage, the appellant applied for leave to amend the plaint by incorporating an averment in the plaint that the appellant was and had always been ready and willing to perform his part of the said agreement. The learned Additional Civil Judge before whom the said application was made, rejected the same. A revision petition was preferred by the appellant against the judgment of the learned Additional Civil Judge to the high court of Karnataka but the said revision petition was dismissed by a learned Single Judge of the said High court as aforesaid. The learned judge took the view that the application for amendment was filed beyond the period of limitation and the application could not be granted as a vested right of the respondent would be disturbed by allowing the said amendment. It is the correctness of this decision which is challenged before us.