Order
1. Leave granted.
2. This appeal by the defendant is directed against the order of the Patna High Court allowing amendment of the plaint in a suit filed by the respondent. The said suit is based on an agreement dated 25-3-1985 executed by the appellant for sale of land belonging to him for a sum of Rs 3,01,000. A sum of Rs 501 was deposited as earnest money by the respondent. Under the said agreement the parties agreed that the balance amount of consideration would be paid and the sale deed would be executed and registered within a period of three months. On 21-12-1990, the respondent filed the suit in question wherein he sought the following reliefs:
“(a) That it be declared that the contract dated 25-3-1985 for the sale of Schedule ‘A’ land to the plaintiff by the defendant is still subsisting and the defendant by the agreement dated 25-3-1985 is bound to execute and register the sale deed in respect of the Schedule ‘A’ land in favour of the plaintiff.
(b) That the defendant be injuncted for transferring the Schedule ‘A’ land to any other person except the plaintiff, either by sale, gift, mortgage or in any other way.
(c) That the cost of the suit be awarded to the plaintiff.
(d) That any relief or reliefs to which the plaintiff be bound entitled be given to her.”
In the said suit the appellant has raised the plea that the suit was barred by limitation. One of the issues that has been framed [Issue No. 3] is whether the suit is barred by limitation. During the pendency of the said suit the respondent, on 16-4-1993, submitted an application for amendment of the plaint whereby he sought the following amendment in relief (a) in the plaint:
“In relief (a) of para 16 of the plaint the ‘full stop’ be deleted and after the words ‘the plaintiffs’ the words, ‘and after receiving consideration the defendant be directed to execute and register sale deed in favour of the plaintiff within a period fixed by the court failing which the sale deed be executed and registered by the court’ be added.”
The said amendment was refused by the trial court by order dated 27-8-1993. The High Court, in revision, by the impugned judgment dated 17-4-1995 has allowed the said amendment. The only question which arises for consideration in this appeal is whether the High Court was justified, in law, in allowing the said amendment in the plaint.
3. Shri Rajeev Dhavan, the leaned Senior Counsel appearing for the appellant, has submitted that on the date of filing of the application for amendment a suit for specific performance of the contract was barred by limitation in view of the provisions contained in Article 54 of the Limitation Act, 1963 and the High Court was in error in allowing the amendment and to convert a suit for declaration into a suit for specific performance after the expiry of the period of limitation prescribed for filing of the suit for specific performance. In support of his submission Shri Dhavan has placed reliance on the decision of this Court in Muni Lal v. Oriental Fire & General Insurance Co. Ltd. (1996) 1 SCC 90 wherein this Court has upheld the order disallowing amendment of the plaint and has laid down that under Order 6 Rule 17 CPC an amendment cannot be allowed in cases after the suit was barred by limitation during the pendency of the proceedings.
4. In the instant case the High Court appears to have proceeded on the basis that in the plaint the plaintiff-respondent has made out a case for specific performance and nothing new had been sought for by way of amendment. We have perused the plaint. We are unable to agree with the said view of the High Court. It is no doubt true that in the plaint the plaintiff-respondent has made a reference to the agreement and his having requested the appellant to execute the sale deed. But there is nothing in the plaint to show that the plaintiff-respondent was seeking specific performance of the contract. The suit, as framed, is a suit for declaration and injunction only. It was sought to be converted into a suit for specific performance by the plaintiff-respondent by way of amendment in the plaint in 1993 when the claim for specific performance had become barred by limitation. The submission of Shri Dhavan is that even on the date of the filing of the suit, the claim for specific performance was barred by limitation. We do not propose to go into that question.
5. In our opinion, therefore, the impugned order of the High Court allowing the amendment of the plaint cannot be sustained and has to be set aside.
6. The appeal is accordingly allowed, the impugned judgment of the High Court dated 17-4-1995 in CR No. 373 of 1993(R) is set aside and the order passed by the trial court disallowing the amendment is restored. No orders as to costs.