The court clarified that an amendment to incorporate specific performance in a suit does not invalidate claims already made if they imply specific performance.

ORDER

Heard Sri Sailesh S. Katarey, learned counsel for the petitioner and Sri R.B.Sadasivappa, learned counsel for caveator/respondent No.1.

2. Sri R.B.Sadasivappa, learned counsel also undertakes to file vakalath on behalf of respondent Nos.3 and 4. Respondent No.2 was not represented before the trial Court. Hence, notice to respondent No.2 is dispensed.

3. This petition is filed by the petitioner who was the plaintiff in the original suit in O.S.No.5968/2017 challenging the order dated 02.08.2024 passed by the LX Additional City Civil and Sessions Judge at Bengaluru, on I.A.No.10.

4. Parties to the proceedings shall be referred to as plaintiff and defendants.

5. The plaintiff filed suit against the defendants for the following reliefs:

“1. Direct the defendants to HAND OVER VACANT POSSESSION of suit schedule property to the plaintiff as existed before date of illegal dispossession.

2. Be pleased to direct the defendants by way of mandatory injunction to register the suit schedule property in favour of plaintiff.

3. Further be pleased to direct the defendants to construct/put up the existed car garage which was existed at the time of illegal dispossession at their own cost.

4. Direct the defendants to pay loss of income of Rs.1,000/- per day from the date of the illegal dispossession i.e., 13-5-2015 and till the date of disposal of suit.

5. Grant costs of the suit.

6. Grant such other relief/s as this Hon'ble Court deems fit to grant in the circumstances of the case, in the interest of justice.”

6. When the matter was at the stage of commencement of trial, the plaintiff filed an application in I.A.No.10 under Order VI Rule 17 of the Code of Civil Procedure to incorporate certain amendments. The proposed amendment that was sought reads as under:

“ADD PRAYER 1A. Pass a judgment and decree for specific performance in favor of the plaintiff by directing the defendants to execute a registered sale deed and on their failure to do so, direct the registry of this Hon'ble Court to execute sale deed in favor of the plaintiff and also deliver vacant physical possession of the suit schedule property.”

7. This application filed by the plaintiff was seriously objected to by the defendants on the ground that the same is barred by the law of limitation. The suit was filed in the year 2017 and the application was filed in the year 2023, beyond a period of six years and therefore, the same is barred by the law of limitation.

8. On consideration of the application and on hearing the learned counsel for both parties, the learned trial Judge rejected the application filed by the plaintiff.Aggrieved by which the plaintiff is before this Court.

9. It is the vehement contention of learned counsel for the plaintiff that the impugned order passed by the trial Court is perverse, arbitrary, illegal and the same deserves to be set aside. Further, it is contended by the learned counsel that the trial Court has misconstrued the petitioner’s possession from 28.04.1986 till his ejectment in 2015. It is also contended that over a period of thirty years petitioner was in possession of the scheduled property in part performance of the agreement of sale. Indeed, the question whether the agreement is proved or not is a question of fact and by depriving the petitioner to seek the option of specific performance, the learned trial Judge has virtually pre-decided the matter. It is also contended by learned counsel that the application for amendment was filed prior to commencement of trial and therefore, there was no impediment for carrying out the amendment. As the plaintiff is not making out a new case for the reason that he had alrea