KAHINI DEVELOPERS PVT. LTD Vs. MUKESH MORARJI PANCHAMATIA

JUDGEMENT

(1.) This appeal arises from a decision of a Learned Single Judge dated 6 March 2012 by which an amendment has been allowed to the plaint in a suit for specific performance. By the amendment, the Plaintiff seeks to claim, in addition to specific performance, damages at the rate of Rs.500/- per day together with interest. The amendment also seeks to set up an alternate plea that in the event the Court holds that specific performance cannot or ought not to be granted, then in that event, the Defendant be directed to refund the amount paid by the Plaintiff together with interest and an award of compensation be passed in lieu of specific performance.

(2.) The suit for specific performance instituted by the Plaintiff is of 1988. The Plaintiff claims specific performance of an agreement to sell dated 7 July 1976 in respect of the premises of a shop in a Shopping Complex. The suit which was instituted on 6 July 1988 is to be tried. A Chamber Summons for amendment of the plaint was taken out by the Plaintiff-Respondent inter alia seeking to raise a claim for the following reliefs :

(3.) On behalf of the Appellant-Defendant, it has been urged that an application for amendment of a Plaint is governed by Article 137 of the Schedule to the Limitation Act, 1963 and ought to have been filed within a period of three years when the right to apply accrued. Reliance was sought to be placed on the judgment of a Learned Single Judge of this Court in Harinarayan G.Bajaj vs. Vijay Agarwal, 2012 2 MhLJ 106 which adopts the position that though Order 6 Rule 17 of the Code of Civil Procedure, 1908 allows either party to alter or amend its pleading at any stage of the proceedings, this would be subject to the provisions of the Limitation Act and the remedy would be barred after the period prescribed under Article 137 of the Schedule elapses. In the present case, it was hence urged that the application for amendment which was filed in the form of a Chamber Summons on 23 June 2009, nearly 21 years after the institution of the suit, was barred by limitation and the Learned Single Judge consequently erred in allowing the amendment.