IMPORTANT POINTS
Suit for specific performance filed after three years of last date fixed for performance of obligations would be time barred.
Suit for mandatory injunction filed with fixed court fee cannot be converted into suit foe specific performance simply by permitting the plaintiff to deposit court fee ad velorem.
Suit for mandatory injunction can be converted into one for specific performance by amending under Order VI, Rule 17 which even if allowed would not relate back to date of the suit for mandatory injunction as filed.
For specific performance the petitioner must show his continued readiness and willingness.

JUDGMENT :

V. RAMASUBRAMANIAN, J.

1. The holder of an agreement for the purchase of an immovable property, whose suit for a mandatory injunction (construed by the Trial Court as a suit for specific performance) was decreed by the Trial Court, but which decree was upset by the First Appellate Court and confirmed on second appeal by the High Court, has come up with the present Special Leave Petition.

2. We have heard Shri R Basant, learned senior counsel appearing for the petitioner and Shri Soumen Talukdar, learned counsel appearing for the respondent.

3. The brief facts essential for the disposal of the special leave petition are as follows;

(i) On 12.10.1994, an agreement was entered into by the petitioner with the respondent. By this agreement, the respondent agreed to sell to the petitioner, the land and factory premises at Plot No.90, Sector-21, Industrial Area, Bhiwani, with the land measuring about 1250 sq. yards. The total sale consideration fixed under the agreement was Rs.4,38,000/-. An earnest money of Rs.1,00,000/- was paid by the petitioner to the respondent at the time of execution of the agreement. The date for performance of the contract was fixed under the agreement as 07.10.1996.

(ii) The petitioner issued a legal notice dated 12.11.1996 claiming that when the date fixed for specific performance arrived, he approached the respondent for the completion of the transaction, and that at that time, the respondent disclosed about the pendency of some civil litigation with a third party, as an impediment for the execution of the sale deed. Therefore, the petitioner claimed in the legal notice that the respondent should furnish the details of all the litigation pending in respect of the said property and that if no litigation was pending, the respondent should come forward to execute the sale deed within 15 days.

(iii) As there was no response to the legal notice, the petitioner filed a civil suit in CS No.240 of 1999 in the Court of the Additional Civil Judge, Senior Division, Bhiwani. The prayer made in the suit was for a mandatory injunction to direct the respondent to execute all documents of transfer of the property in question after receiving the balance sale consideration. It is relevant to note here that since the suit was filed only for the relief of mandatory injunction, the petitioner valued the suit only at Rs.250 and paid a fixed court fee of Rs.25.

(iv) The respondent filed a written statement denying everything including the execution of the agreement. He also questioned the maintainability of the suit in the form in which it was filed. The respondent further claimed that the suit was barred by limitation.

(v) On the basis of the pleadings, the Trial Court framed eight issues for consideration on 12.10.2002. These issues were as follows:

“(1) Whether the plaintiff agreed to purchase the suit property from the defendant for a sum of Rs.4,38,000/-and paid Rs.1,00,000/- as earnest money on 12.10.1994 as alleged? OPP

(2) Whether the plaintiff is entitled to relief of mandatory injunction as prayed for? OPP

(3) Whether the plaintiff has no locus-standi to file the suit? OPD

(4) Whether the plaintiff has no cause of action to file the suit? OPD

(5) Whether the suit is not maintainable in the present form? OPD

(6) Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD

(7) Whether the plaintiff is estopped by his own act and conduct from filing the suit? OPD

(8) Relief.”

(vi) After filing the written statement, the respondent also took out an application for the dismissal of the suit on the ground that a suit for mandatory injunction was not maintainable for enforcing specific performance of an agreement of sale. The said application was disposed of by the Trial Court by a very curious order, dated 09.08.2003, holding that the suit was in fact one for specific performance of an agreement of sale and that the technical objection regarding the maintainability could be overcome by directing the petitio