The main legal point established in the judgment is that the failure to avail the remedy of specific performance and the belated nature of the amendment can impact the court's decision in allowing the conversion of the suit from mandatory injunction to relief of specific performance.

Amit Rawal, J.

This revision petition is against the order dated 15.3.2012 whereby application filed at the instance of respondent-plaintiff seeking amendment of the plaint converting the suit for mandatory injunction into relief of specific performance, has been allowed.

2. Learned counsel appearing on behalf of the petitioners submits that amendment sought by the respondent-plaintiff was highly belated but the suit is also liable to be dismissed as per the provisions of Order 2, Rule 2 CPC inasmuch as agreement to sell is dated 3.1.2006 and stipulated date was 28.2.2006 whereas suit for mandatory injunction has been filed in March 2006. Application seeking amendment of the plaint by converting the suit from mandatory injunction to specific performance of the agreement was filed on 18.9.2010 beyond three years but amendment sought is beyond law of limitation. In support of his contention, he has relied upon judgment of the Hon'ble Supreme Court in Van Vibhag Kramchari Griha Nirman Sahkari Sanstha Maryadit (regd.) v. Ramesh Chander and others 2011 AIR (SC) 41.

3. Mr. Amit Jain, learned counsel appearing on behalf of respondent-plaintiff submit that there is no illegality or perversity in the order allowing the amendment otherwise amendment is allowed it relate back to the filing of the suit. The petitioner can press the framing of issue of limitation as it is a mixed question of fact and law.

4. I have heard learned counsel for the parties and appraised the paper book.

5. It is settled law where there is breach of the agreement before stipulated date for the execution and registration of the sale deed, the vendor is entitled to invoke the jurisdiction of the Civil court by seeking injunction. After expiry of the stipulated date or breach can seek the specific performance. Since the respondent-plaintiff invoked the jurisdiction of the civil court under Section 9 of the Code of Civil Procedure by filing suit for mandatory injunction in March 2006, breach was already there and was not prevented to seek specific performance. However, the plaintiff did not avail remedy of specific performance. In my view, even the plaintiff had also given up the right to claim specific performance by filing suit for mandatory injunction. The amendment application has been moved beyond period of three years, therefore, as per Article 54 of the Limitation Act, specific