BHAGWATI PRASAD JALAN Vs. PREM LATA DEVI KEDIA

JUDGEMENT

(1.) The important question involved in this civil revision application is whether the plaintiff seeking a decree for specific performance of contract would be entitled to amend the plaint by inserting an alternative relief of refund of money even at the stage where such relief become barred by limitation.

(2.) The plaintiff-petitioner filed Title Suit No. 101 of 1992 in the Court of the subordinate Judge, Ranchi against the opposite parties claiming a decree for specific performance of contract and for a direction to the opposite parties to execute and register the sale deed in his favour. The said suit was instituted by filing a plaint on 5-2-1992. According to the plaintiff, one Ghisu Lal Jain acting as an agent and broker on behalf of Ram Narain Kedia father- in-law of defendant No. 1, entered into an agreement for sale of 4 Kathas of land out of Municipal Survey plot No. 1598 for a sum of Rs. 16,000/- and on receipt of Rs. 5,000/- as advance on 14-1-1980 besides Rs. 5.000/- as commission on 19-5-1981, the defendant No.1 executed an agreement in favour of the plaintiff on the death of his father in respect of 4 Kathas of land out of M.S. plot No. 1598/B and the plaintiff was put in possession thereof. The sale deed was to be executed within three months from the date of agreement. It is alleged that inspite of repeated requests, the sale deed was not executed and a suit being Title Suit No. 115 of 1984 was filed by the plaintiff against Prem Lata Devi Kedia and Ghisu Lal Jain which was decreed on the basis of compromise on 13-5-1991. Consequent upon such compromise decree, an agreement was executed by defendant No.1 on 13-5-1991 in favour of the plaintiff for the sale of 3 1/2 kathas of plot No. 1598 for a sum of Rs. 1,50,000/- out of which, the defendant No.1 received Rs. 2,500/- as advance on 13-5-1991. According to the terms of agreement, the plaintiff deposited with defendant No. 3 a sum of Rs. 1,26,000/-. Inspite of repeated requests no sale deed was executed and consequently legal notice was served on behalf of the plaintiff on 2-11-1991. On these facts, the plaintiff petitioner filed the aforesaid, inter alia, for specific performance of contract dated 13-5-1991. During the pendency of the suit, after about four years, the plaintiff- petitioner filed a petition for amendment of the plaint on 13-5-1996 praying for inclusion of an alternative relief for a decree of refund of a sum of Rs.1,26,000/- and Rs. 2,500/- plus cost of boundary together with 20 percent interest from 13-5-1991. By the impugned order, the learned Court below refused the prayer for amendment of the plaint and rejected the petition on the ground that the relief sought for become barred by limitation and, therefore, such amendment cannot be allowed.

(3.) Mr. A.K. Sahani, learned Counsel for the petitioner assailed the order as being illegal and wholly without jurisdiction. Learned Counsel submitted that the learned Court below has completely misconstrued the provision of Section 22 of the Specific Relief Act, 1963 (hereinafter to be referred to as 'the Act'). Learned Counsel submitted that in a suit for specific relief of contract, the plaintiff seek a relief for refund of earnest money at any stage of proceeding and the question of limitation does not arise. On the other hand, Mr. A Sahay, learned Counsel for the opposite parties submitted that the provision of Section 22 of the Act is subject to the law of limitation Learned Counsel submitted that the learned Court below was fully justified in holding that such relief on the date of filing of the amendment petition was barred under the law of limitation. Learned Counsel has relied on a decision of the Supreme Court in the case of Muni Lal v. the Oriental Fire & General Insurance Company Limited and another (AIR 1996 Supreme Court 642).