Hon’ble Manoj Kumar Gupta, J.—The core issue in this petition is whether an amendment in the plaint seeking a relief which is alleged to be barred by limitation, should be allowed or not; should a plea relating to bar of limitation be decided at the stage of dealing an application for amendment; or should it be left for being decided in the suit, after allowing the amendment application.

2. The petitioner had instituted Original Suit No. 835 of 1988 against the deceased defendant Roshan Singh (for short ‘defendant’) for restraining him from alienating the suit property in favour of any person during subsistence of agreement for sale dated 26.5.1986 in favour of the plaintiff. It was alleged that defendant No. 1 had executed a registered agreement for sale in favour of the petitioner in respect of the suit property. One of the conditions of the agreement was that the defendant will obtain requisite permission from the competent authority under the Ceiling Act and clearance certificate from the Income Tax authorities and thereafter, inform the petitioner, who will within three years of receipt of the intimation, obtain a sale-deed. It was alleged that the deceased defendant had failed to obtain the requisite permission. On the contrary, he had executed an agreement for sale in favour one Sri Raj Narayan Goel, which thus is wholly illegal. It was claimed that during subsistence of agreement for sale in favour of the plaintiff, the deceased defendant was not entitled to execute sale-deed in favour of any person and consequently, relief for prohibitory injunction was claimed. During pendency of the suit, the deceased defendant had transferred the suit property in favour of respondent No. 2 by sale-deed dated 21.9.1991 registered on 24.9.2002. The heirs of the deceased defendant have made further alienations dated 28.5.2001, 8.7.2002 and 1.3.2007, all of which were subjected to challenge by seeking amendment in the plaint with consequential relief for declaration of the aforesaid sale-deeds as null and void.

3. The suit was contested by the deceased defendant by taking a categorical plea that by notice dated 30.1.1987, he avoided the agreement contending that it was obtained by fraud and misrepresentation. Thereafter, he was free to negotiate for sale of the property and he could not be injuncted from doing so. It was also specifically pleaded that after refusal by the defendant to execute sale-deed, the only remedy open to the plaintiff was to bring a suit for specific performance and suit for injunction simplicitor was not maintainable.

4. During the pendency of the suit, the petitioner instituted Original Suit No. 861 of 2008 against the heirs of the deceased defendant and their transferrees seeking relief of specific performance of the agreement for sale dated 26.5.1986. The plaint of the said suit was rejected by the trial Court by an order dated 21.3.2013 holding that the suit is barred by limitation and provisions of Order II Rule 2 C.P.C. The petitioner claims to have filed an appeal against the order of the trial Court rejecting the plaint and the appeal is stated to be pending.

5. Simultaneously, the petitioner filed an application for amendment of the plaint of the instant suit No. 835 of 1988 seeking to incorporate relief of specific performance of the sale agreement. The trial Court rejected the amendment application by order dated 11.7.2013 holding that the relief for specific performance has since become barred by limitation and thus, such an amendment could not be allowed. Revision preferred against the said order has also been dismissed by District Judge, Agra by order dated 29.4.2015. The aforesaid orders are subject-matter of challenge in the instant petition.

6. Sri M.A. Qadeer, learned Senior Counsel appearing on behalf of the petitioner contended that the trial Court acted with material irregularity in exercise of its jurisdiction in rejecting the amendment application. It is submitted that the power to