KAMALA PADHAN Vs. HARIHAR MISHRA

JUDGEMENT

(1.) THE plaintiffs have filed this writ application challenging the order dated 18.1.2002 passed by the learned Civil Judge (Junior Division), Bargarh in Title Suit No. 85 of 2001 rejecting the petition filed by the petitioners under Order 6, Rule 17 of the Code of Civil Procedure (in short "C.P.C.) for amendment of the plaint as well as the judgment and order dated 13.8.2003 passed in Civil Revision No. 5 of 2002.

(2.) THE petitioners have filed a suit for injunction and compensation and also seeking relief in respect of right to discharge rain water. On perusal of the plaint it also appears that the plaintiff -petitioners have pleaded adverse possession over the suit land and have also set up an alternate case of right of easement by prescription. While filing the suit in the year 2001, no prayer was made for specific performance of contract. In an application filed under Order 6, Rule 17 C.P.C., the plaintiff -petitioners sought for amendment of the plaint and in the proposed amendment, they sought for adding some persons as defendants and including the prayer for specific performance of contract/compensation for non -performance of contract and also a change in the date of cause of action. The said petition was resisted by the defendant -opposite parties on the ground that the prayer for specific performance of contract was time -barred and the change in the date of cause of action would change the nature and character of the suit. The trial Court found that the prayer for specific performance of contract is time -barred and the change sought for in the date of cause of action would change the nature and character of the suit and accordingly rejected the petition.

(3.) SHRI Mohapatra, learned counsel appearing for the contesting opposite parties, on the other hand, submitted that the so -called agreement for sale having been executed much prior to the filing of the suit, there was no difficulty on the part of the plaintiff -petitioners to pray for specific performance of contract at the time of filing of suit. Having not done so, the plaintiffs cannot be allowed to include such a prayer by way of an amendment. It was also contended by Shri Mohapatra that the claim for specific performance of contract is time -barred as borne out form record and therefore a time -barred claim cannot be allowed to be incorporated by way of amendment.