BISHWANATH SHARMA Vs. MALBHOG BORUAH ESTATE PVT LTD

JUDGEMENT

(1.) Heard learned counsel for the parties. By this writ application, the petitioner seeks to challenge the order dated 7.2.04 passed by the learned Civil Judge (Junior Division) No. 1, Dibrugarh in Title Suit No. 139 of 1995 rejecting the prayer for amendment of the plaint.

(2.) Petitioner has filed the suit for permanent injunction restraining the defendants from making any negotiation for sale of the suit premises with nobody else other than the plaintiff. Mandatory injunction has also been prayed in the suit for a direction to the defendants to sell the suit premises to the petitioners by executing necessary document of sale. By filing a petition seeking amendment to the prayer made in the suit, the plaintiff-petitioners prayed for alternative relief suit for injunction, alternatively, for specific performance of contract. The defendants/respondents objected to the amendment of the learned Court below. By the impugned order dated 7.2.04 has rejected the prayer for amendment.

(3.) Mr. DR Gogoi, learned counsel appearing for the petitioners submitted that the prayer for amendment was in fact for change of nomenclature without any material change to the basic prayer made in the plaint. Mrs A. Bhattacharyya, the learned counsel appearing for the respondents submits that the prayer for amendment, if allowed would change the character of the suit. She places reliance on the decision of the Apex Court as reported in AIR 1995 SC 1768, K. Raheja Construction Ltd vs. Alliance Ministries & others, paragraph 4 of the said judgment is quoted below : "4. It is seen that the permission for alienation is not a condition precedent to file a suit for specific performance. The decree of specific performance will always be subject to the condition to the grant of the permission by the competent authority. The petitioners having expressly admitted that the respondents have refused to abide by the terms of the contract, they should have asked for the relief for specific performance in the original suit itself. Having allowed the period of seven years elapsed from the date of filing of the suit, and the period of limitation being three years under Article 54 of the Schedule of the Limitation Act, 1963 any amendment on the grounds set out, would defeat the valuable right of limitation accrued to the respondent."