Limitation for specific performance suits is a mixed question of law and fact, requiring evidence for determination; amendments to the plaint are permissible if necessary for resolving real issues.

JUDGMENT :

1. Rule. Rule made returnable forthwith and, with the consent of learned counsel for the parties, heard finally.

2. These petition and application arise out of the orders passed by the learned Civil Judge, Ichalkarnaji in Special Civil Suit No. 251 of 2005 and as the outcome of one may have a bearing on another, both the petition and the application were heard together and are being decided by this common judgment.

3. The background facts, leading to these proceedings, can be summarised as under:

3.1 Guruprasad Narayan Shetty, the deceased defendant, and the predecessor in title of the applicants/petitioners was the holder of property bearing revenue survey No. 575/ 2, admeasuring 35.02 R situated at Tal-Hatkanangale, District-Kolhapur. The deceased- defendant entered into a contract to sell 15 R land out of the said property at the consideration of Rs.150 per sq. ft.

3.2 An agreement for sale dated 18^th September 1996 came to be executed. Under the said agreement, the plaintiff claimed to have paid a part consideration of Rs.2,80,000/-. Balance consideration was to be paid at the time of the execution of the sale deed. The deceased defendant was to take requisite steps to have the record of rights corrected, get the property agreed to sold measured and obtain the consent of his heirs and execute the sale deed within a period of 11 months.

3.3 Asserting that the deceased-defendant did not take the requisite action and perform his part of the reciprocal promises, despite repeated requests, the plaintiff instituted the suit for specific performance of the contract. It was, inter alia, asserted that the plaintiff had addressed a notice on 2^nd September 1999 and, eventually, on 2^nd April 2003, the deceased-defendant flatly refused to perform the contract. Hence, the suit.

3.4 Initially, the suit proceeded ex-parte as the deceased- defendant did not appear despite the service of summons. By a judgment and order dated 14^th March 2006, the learned Civil Judge was persuaded to dismiss the suit observing, inter alia, that the suit was not within the period of limitation.

3.5 The plaintiff preferred an appeal before the District Court. By a judgment and order dated 31^st January 2020, the learned District Judge, Ichalkaranji reversed the judgment of the trial Court and passed a decree for specific performance of the contract. Aggrieved, the petitioners preferred second Appeal before this Court being Second Appeal No. 390 of 2022.

3.6 By an order dated 20^th September 2023, this Court was persuaded to allow the appeal, set aside the judgment and order passed by the First Appellate Court and restore the suit to the file of the trial Court for afresh decision after providing an opportunity to the petitioner to file written statement and adduce evidence.

3.7 Post remand, the petitioners/defendants preferred an application for rejection of the plaint under Order VII Rule 11(d) of the Code of Civil Procedure (‘CODE’) contending, inter alia, that the suit was ex-facie barred by law of limitation and to circumvent the bar of limitation the plaintiff had resorted to clever drafting. From the averments in the plaint, it would be abundantly clear that the plaintiff had knowledge of refusal of performance of contract more than three years prior to the institution of the suit. Therefore, the plaint was liable to be rejected.

3.8 The plaintiff, in turn, filed an application for amendment in the plaint asserting, inter alia, that on account of inadvertence and omission on the part of the advocate who earlier represented the plaintiff, the office copy of the notice dated 2^nd April 2003 was misplaced and certain averments with regard to the said fact could not be raised in the plaint.

3.9 The petitioners resisted the application for amendment.

3.10 By an order dated 8^th December 2023, the learned Civil Judge ruled that the application for amendment would be decided first and, thereafter, the application for rejection of the plaint would be decided.

3.11 Even