DAMODARRAO Vs. MAINABAI

JUDGEMENT

(1.) THE petition is for revision of an order dated 10-4-1985 whereby, in civil suit No. 33-A of 1978 instituted by the petitioners against the respondents, Second additional District Judge, Vidisha, dismissed an application for amendment of the plaint.

(2.) THE case of the petitioners-plaintiffs was that, on 29-6-1972, the respondents defendants entered into an agreement to sell certain fields to them for a consideration of Rs. 38,332/- out of which a sum of Rs. 5000/- was paid at the time of the agreement and the balance was agreed to be paid by 6 annual instalments commencing from 30-7-1973. The last instalment of Rs. 4,381/- payable on 30-7-1978 was to be paid before the sub-Registrar at the time of registration of the sale-deed. The term No. 7 of the agreement provided that the petitioners would not be entitled to alienate the fields or incur loan on security thereof without consent of the respondents without getting the sale-deed executed in their favour and the respondents would also not be entitled to do so. Possession of the fields was also delivered to the petitioners. The first five instalments were paid by the petitioners as per terms of the agreement. In the month of july 1972, they called upon respondents to accept the amount of the last instalment before the Sub-Registrar and execute the sale deed as per terms of the agreement but, on 29-6-1972, they declined to do so unless the above-mentioned term No. 7 of the agreement was stated therein. Notices were also sent by them to the respondents, but in vain. The term No. 7 of the agreement was operative only for the period till execution and registration of the sale-deed, and therefore, it was not necessary to state it in the sale-deed. As the respondents were not prepared to execute the sale-deed, unless that term was incorporated therein, the petitioners claimed a declaration that the said term was binding only till execution and registration of the sale-deed and it was not necessary to incorporate it in the sale-deed. They further claimed a perpetual injunction restraining the respondents from interfering with their possession over the fields.

(3.) AT the stage of evidence, an application for amendment of the plaint was filed on behalf of the petitioners who thereby wanted to plead that they were and would ever be prepared to get the sale-deed executed and registered and that, in the alternative, they claimed specific performance of the agreement of sale. The Trial court was of the view that the claim for specific performance having become barred by time the amendment could not be allowed. Accordingly, it dismissed the application vide the impugned order.