The court ruled that a suit for specific performance was barred by limitation as the cause of action arose in 1988, and the amendment to change the suit's nature was improperly allowed.

JUDGMENT

The matter is languishing to see its fate since 2002. Earlier, Advocate Shri R.D. Hoondikar and Shri Himanshu Rai filed Vakalatnama on behalf of respondent No.1, but did not appear on behalf of respondent No.1. Moreso, notices were also issued and served on the legal heirs of respondents No.4, 5 and 6. Notably, this Court on 28.01.2024 had made it clear that the appeal would be heard on the next date because the contesting respondent was represented through counsel. Again, on 28.03.2025, the matter was fixed for hearing in motion stage for 02.04.2025 under caption ‘top of the list’ and such order was passed only because the counsel for the contesting respondent did not appear when the cases of final-hearing were taken-up and therefore this appeal was listed in motion stage for bringing this old matter to its logical end. Unfortunately, Shri Hoondikar breathed his last but still Shri Himanshu Rai, Advocate should have appeared but he did not. Therefore, this appeal was heard on 02.04.2025. Albeit, Shri Ankit Saxena, Advocate appeared for respondent No.12, but he supported the submissions made on behalf of the appellant.

2. By the instant appeal filed under Section 96 of the Civil Procedure Code, the appellant-defendant is challenging the validity of the judgment and decree dated 25.07.2002 passed in Civil Suit i.e. RCS No.8-A/2001 by learned 11^th Additional District Judge, Bhopal.

3. Shri Ravish Agrawal, learned Senior Advocate submitted that though the issue with regard to limitation was framed, but the court without considering the facts of the case properly had decided the issue saying that the suit was within the limitation whereas as per the existing factual position, the same is apparently barred by time. He has submitted that from the averments made in the plaint i.e. from paragraphs-10, 11 and 14, it can be clearly seen that the cause of action pleaded in the plaint starts from 1988 and even otherwise according to him if the date of filing of suit i.e. 23.04.1991, considered to be the date of cause of action, the amendment application which had been moved on 25.08.1995 to change the nature of suit and claiming decree for specific performance of contract, then also it was apparently barred by time because as per Article 54 of Limitation Act, the suit for specific performance of contract can be moved within the limitation of three years from the date of cause of action but it was beyond the said period.

Ergo, the issue decided by the court below with regard question of limitation and finding given is perverse whereas the suit could have been dismissed only on the ground of limitation. The second limb of challenge was that initially the suit was filed by the plaintiff for declaration and permanent injunction saying that the plaintiff had not violated any of the terms of the agreement dated 09.07.1988 and as such, the defendants should be restrained from interfering in the peaceful possession of the plaintiff and they should also be restrained from creating any third party interest over the suit property. He has further submitted that initially the present appellant was not made a party in the suit, but later on, by way of amendment, a decree for specific performance of contract was claimed. The court not only allowed the application, but returned the plaint for its presentation before the appropriate court because after allowing the amendment, the particular Civil Court did not have pecuniary jurisdiction to try the said suit. He has further submitted that application of amendment could not have been allowed by the Civil Court because allowing the application would amount to entertaining the suit which is beyond the pecuniary jurisdiction of the Court. He has also submitted that the plaint was returned and it was presented before the competent Court having pecuniary jurisdiction, the same suit cannot be treated to be in continuation of the earlier suit, but it would be a fresh suit. The limitation of specific performa