The trial court should have allowed the application for amendment and thereafter decided the issues regarding limitation after recording evidence. The trial court committed illegality in treating the suit as barred by limitation and in applying the provision of Order 2 Rule 2 of C.P.C.

JUDGMENT :

1. The appellant/plaintiff has preferred this first appeal under Section 96 of CPC being aggrieved by the judgment and decree dated 25-10-2005 passed by 2nd Additional District Judge, Raipur (CG) whereby the Civil Suit No. 15-A/2005 filed by the appellant has been dismissed.

2. For the sake of convenience parties would be referred to as per their status shown in the suit filed before the trial Court.

3. Brief facts as reflected from the plaint averments are that the plaintiff/appellant has filed a civil suit on 07-11-1999 before the Civil Judge, Class II, Raipur for declaration and injunction valued at Rs.400/- for declaration and Rs.400/- for permanent injunction, total valued at Rs.800/-. From the plaint the facts would reveal that plaintiff and defendant No.1 on 7-6-1998 executed an agreement for sale of land bearing Khasra No.188/1 and 271 total area 1.582 hectares at village Ghusera, Tahsil and District Raipur for which an advance of Rs.50,000/- was received by defendant No. 1 the remaining part of sale consideration was payable at the time of registration. It has also been pleased that the defendant No.2 Government of Madhya Pradesh has imposed ban on sale of land within 15 kms distance of Raipur District. This information was well within the knowledge of the plaintiff as well as defendant No.1 The defendant No.1 again received advance amount of Rs. 50,000/- on 02.07.1998 receipt of the amount was given in writing and it was agreed to execute the sale deed. Thereafter, the plaintiff has made efforts to perform his part of contract but defendant has not taken any steps to perform his part of contract. The plaintiff is in possession of the land and continued with its agricultural operation. Defendant No.1 has raised objection which has compelled the plaintiff to lodge FIR to Police Station Abhanpur on 10.08.1999. The defendant to cause damages to the standing crop has started illegal cutting the same, which has necessitated the plaintiff to file the civil suit. It has also been contended that defendant has refused to perform his part of contract therefore by this suit declaration for performance of contract is sought. The plaintiff has also prayed that the declaration to fulfill the contract by defendant No. 1 be kindly directed, permanent injunction to use the suit land against defendant No. 1 be also granted.

4. The learned Civil Judge Class II has issued notice to the defendant, thereafter, the plaintiff has moved an application for amendment in the plaint on 31-10-2002 wherein he has prayed for amendment in the cause title and sought to incorporate valuation of suit at Rs.1,38,510/- for grant of declaration for performance of the contract. In para 2 following prayers were made to be permitted to add.

“Plaintiff is ready and willing to pay Rs.1,38,510/- to perform his part of contract, it be declared that the defendant after receiving the same will fulfill the agreement dated 07-06-1998.”

In para 11 of the plaint, following be permitted to add :-

“For specific performance of contract the valuation of the court fee is at Rs.1,38,510/-and accordingly the court fee of Rs. 16,480/- has been affixed.”

5. Since by way of proposed amendment valuation of the suit land is beyond pecuniary jurisdiction of the Civil Judge, Class 1, therefore, the trial court returned the said application and plaint with permission to file it before appropriate court vide its order dated 27-3-2003. In pursuance of the return of the said application, the plaintiff has filed a suit before the learned 5th Additional District Judge, Raipur as reflected from the order sheet dated 7-5-2003 reiterating the same pleading which has been made before Civil Judge Class-I, Raipur in Civil Suit. It has been further contended that the learned trial Court has returned the plaint to file before the Court having jurisdiction it, as such, this amended plaint has been filed. It has also been clarified that the cause action has been arose because of the agreement da