KALLU RAM YADAV Vs. SAKUNTI DEVI

JUDGEMENT

(1.) This revision petition has been preferred by the above named plaintiff-petitioner against the order dated 20-8-1998 passed by the Munsif, Araria in Title Suit No. 414 of 1993. whereby and whereunder the prayer made by the plaintiff-petitioner for amendment of the plaint under Order VI, Rule 17 of the CPC has been rejected.

(2.) The planitiff-petitioner filed the above metioned suit for a declaration that the plaintiff had acquired valuable title by adverse possession and that the defendant had not subsisting title over the suit land. Originally the suit land belonged to the defendant. He made an agreement with the plaintiff for sale of the suit land for a consideration of Rs. 20,000/-. Although no time limit was fixed in the Zairbanama. but it appears that some formalities were to be done before sale, which the defendant undertook but ultimately he did not do it and according to the plaintiff he made request for execution of the sale-deed to the defendant in the year 1987, but the defendant did not pay need to it and as such plaintiff had to file the suit. That by lapse of more than 12 years the plaintiff had acquired title over the suit land by right of adverse possession. The suit was filed in the year 1993 but an application was filed in the year 1998 to add a more relief in alternative way in the suit. by which the plaintiff wanted to have specific performance of the contract based on the Zairbanama. The defendant O.P.raised vehement objection to the effect that the suit being a simplicitor suit on the basis of title and adverse possession the inclusion of further relief with proposed amendment would totally change the nature of the suit and that for non-compliance of specific performance of contract within the time limit as contemplated under Section 54 of the Limitation Act would make the amendment prayer rejectable. After hear ing the parties learned Court below came to the finding that the amendment prayer has been made belatedly in the plaint and that the same is going to change the nature of the suit and hence rejected the prayer of amendment. Learned Counsel appearing on behalf of the petitioner submitted that the impugned order is bad in the eye of law as on principle the plaintiff is entitled to take plea of even any inconsistent reliefs and when the crux of the dispute was based on the agreement, then a prayer made for specific performance on the basis of that agreement cannot be rejected, and for delay some cost may be allowed to the opposite party. Regarding limitation his submission is that such limitation matter should not be construed if by that time no right has been accrued to the adverse parties. In sup port of his submission, he has referred to judgments of the Apex Court as in AIR 1985 SC 817- AIR 1967 SC 96- and AIR 1957 SC 363 The principle of allowance or non-allowance of amendment of the pleadings under Order VI, Rule 17, CPC have been formulated by the Apex Court in AIR 1957 SC 363 (supra).

(3.) On the other hand, learned Advocate appearing for the opposite party has hammered on only one point that the amendment petition is wholly barred by limitation and as such the same was rightly rejected by the learned Court below. The refusal regarding specific performance as contemplated under Section 54 of the Limitation Act was mentioned in the plaint itself and the same was lying before the filing of the suit in the year 1993 and the cause of action for a suit for specific performance arises within three years from the date of refusal of specific performance by the adverse party. His contention is that even if there was no time limit mentioned in the Zairbanama, but the douse of action for specific performance being accrued on refusal that too as per the statement in the plaint was done long back and within this a decade had passed, then there remains no scope for adding of that prayer of specific performance in the year 1998. His further contention is that even if the cause of action is said to be accrued on the date of filing of the suit in the year 1993, then also the prayer for specific performance is barred in the year 1998 when the amendment petition was filed. In support of his contention, he has referred to the recent apex Court judgment as in AIR 1996 SC 642 and also a recent judgment of the Orissa High Court as in AIR 1998 Orissa 68. If we read the principles laid down by the Apex Court regarding allowance of amendment of pleadings under Order VI. Rule 17. CPC. as elaborated in AIR 1957 SC 363 (supra) with that of AIR 1996 SC 642 (supra), it can be found that the prayer of amendment for inclusion of relief under the Specific Relief Act has been hopelessly barred by limitation. When the amendment prayer was made in the year 1998 and when there already accrued by bar of limitation a right to the adverse party not to be dragged to litigation then injustice would be caused to the defendant-opposite party if such amendment is allowed at a belated stage. It is true that the crux of the dispute is the Zairbanama, in which there was no time limit fixed but in the cause of action as stated in the plaint and the statement made therein the refusal was made long back, then the bar of Section 54 of the Limitation Act must come into play and such bar definitely created right in favour of the adverse party, which cannot be infringed or taken away by amendment of the pleadings. In that view of the matter, I do not find that the learned Court below has committed any error of law in refusing the prayer of amendment, rather his refusal is proper and just. Hence, there is no force in this revision petition, and the same is hereby rejected, but in the facts and circumstances no order as to costs. Revision dismissed.