Dhaniram Jagannath Shivhare vs Saraswati Devi Ratan Lal Shivhare and Others

T.S. Doabia, J.

The petitioner figures as the plaintiff in a suit filed by him. The suit was filed on 11-6-1992. Merely a declaration was sought. This declaration was to the effect that the sale-deed executed by the defendant in favour of her daughter be cancelled. Later on on 24-4-1995 an application was filed seeking amendment. This application was dismissed, as it was not pressed. Later on another application was filed. This is dated 5th July, 1996. The prayer was made that the petitioner/plaintiff be permitted to amend the plaint. He be permitted to seek specific performance of the agreement in question. This prayer has been declined by the Court below. This was declined on the ground that such prayer cannot be granted after period of limitation.

Some other facts, which are required to be taken note of, be also noticed.

In the agreement dated 10th May, 1992, there is a stipulation that the vendor would get permission from the competent authority under the Ceiling Laws. After the sanction is obtained the period of 12 months could begin for the purpose of getting the sale-deed executed. It is stated that the vendor never obtained such clearance from the Ceiling Authority and gave no information to the petitioner/plaintiff. It is in this situation it is stated that the clauses, which fixed the period of 12 months, never came into operation. As per the counsel, there is no question of the plea being barred by limitation.

For noticing the assertions made in the revision petition, it would also be worthwhile to notice that u/s 27 of the Urban Land (Ceiling and Regulation) Act, 1976 there is a prohibition of transfer of urban property unless and until there is previous permission in writing by the competent authority. It was precisely by taking note of this aspect of the matter the aforementioned condition was made part of the sale-deed.

The argument, which has been raised, is that the plea of limitation in this case was not relevant. It is also argued that if this plea was to be taken into consideration then this could have been decided only after evidence is recorded. This has also been pointed out that when second sale was made by the vendor in favour of his daughter then permission of the competent authority was obtained. This is said to have been obtained on 6-3-1992. Learned counsel for the respondents is placing reliance on a decision given by the Supreme Court in the case of Maharao Sahib Shri Bhim Singhji Ors. Vs. Union of India (UOI) and Others, . According to him, prior permission was not required, as section 27 of the Urban Land (Ceiling and Regulations) Act, 1976 was declared ultra vires of the Constitution. The other decisions on which, reliance is being placed is T.L. Muddukrishanan and another Vs. Smt. Lalitha Ramchandra Rao, and, Venkappa Gurappa Hosur Vs. Kasawwa c/o. Rangappa Kulgod, . On the basis of the aforementioned decisions, it is submitted that there was no need for prior approval.

It is also argued that as there was denial as to the existence of the agreement on the part of the vendor, the period of limitation would be three years. Reliance is also being placed on Muni Lal Vs. The Oriental Fire and General Insurance Company Ltd. and another, , Jagdish Prasad v. Moiyadin 1990 2 WN 117.

There can be no dispute with the legal proposition that in a suit for specific performance of the agreement no amendment can be permitted if it is established on record that this amendment is being sought after the period of limitation. However, if evidence is required to be gone into to establish that plea then it is not permissible to reject the prayer outright. In the present case, the case of the plaintiff is that in the agreement there was a stipulation that permission of the competent authority was to be obtained and information regarding this was to be given to the petitioner/plaintiff. It is his case that no such information has been given till today. The question as to whether any such information was given or not is a matter which can be decided only after the evidence is led. The question as to whether permission was in fact obtained by the vendor and whether the information regarding this was given to the present petitioner/plaintiff would again be a matter, on which the evidence has to be led. It may again be seen that merely because the Supreme Court of India had declared certain provisions as ultra vires, it would not prevent the parties from making stipulation in the agreement that the agreement would be executed only after clearance is obtained. Such a clause could be incorporated independently of the above statutory provisions. The fact, that such a permission was obtained cannot be ignored. The condition could be incorporated independently of section 27 of the Act itself. Whether it would extend period of limitation or not is a question which cannot be gone into at the stage of deciding application under Order VI, Rule 17 of Civil Procedure Code. The decision of the Supreme Court in case of Maharao Sahib Shri Bhim Singhji Ors. Vs. Union of India (UOI) and Others, , was given in 1981. The agreement has been executed in the year 1992. When the parties notwithstanding the decision of the Supreme Court in Maharao Saheb Bhim Singh Ji''s case (supra), agreed to obtain permission then they would prima facie be bound by it.

Learned counsel for the respondents has made a pointed reference to para 5 of the plaint. He submits that in view of the averments contained in para 5, an inference could be drawn that the plaintiff had notice of the fact that the defendant has refused to abide by the agreement in question. According to him, in these circumstances, the period of limitation is three years. He is placing reliance on Article 54 of the limitation Act.

A reading to para 5 of the plaint, it does not bring out that there was any denial by the defendant. In any case this is again a disputed fact on which evidence is required to be led.

As such, the Court below should have granted the application under Order VI, Rule 17 of the CPC with liberty to the defendant to raise a plea that the suit as framed on the date when the application under Order VI, Rule 17, CPC was filed, was barred by limitation.

As such, this revision petition is allowed. The petitioner is permitted to amend the plaint. The respondents/defendants would be at liberty to take the plea that the suit is barred by limitation. This petition is disposed of accordingly.