Hon’ble Mr. Justice B.L.Hansaria Mr. N.S.Hegde, Sr. Adv. Mr.P.P.Singh and Mr. G.V.Chandrasekhar, Advs. with him for the Petitioners. Mr. A.T.M. Sampath, Adv. for the Respondents The following Order of the Court was delivered:
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO.9397 OF 1995 K. RAHEJA CONSTRUCTION LTD. & ANR. .....PETITIONERS V. ALLIANCE MINISTRIES & ORS. .....RESPONDENTS
The petitioners admittedly filed O.S.No.213/93 (subsequently numbered as O.S.251/87) for relief of permanent injunction restraining the respondents from alienating, encumbering, selling, disposing of, or in any way dealing with the said property, more particularly described in Schedule ’A’ to the plaint or any portion thereof. In paragraph 13 of the plaint it was stated thus:
"The said defendants after a lapse of a
month, through a letter dated 29th
April, 1987 sent by defendant No.4 to
plaintiff No.1 blandly intimated that
the offers of plaintiff No.1 were not
being accepted by the trustees of
defendant No.1, a copy of the 4th
defendant’s said letter dated 29th
April, 1987 is annexed hereto and marked
as document No.4. By his letter dated
4th May, 1987 addressed to defendant
No.4, the plaintiff No.1 set out the
correct position and reiterated that a
definite and concluded contract for sale
of the said property in favour of
plaintiff No.1 had been confirmed by the
said defendants to allege that the
offers had not been accepted. The 1st
plaintiff by their said letter also
reiterated their readiness and
willingness to perform their part of the
contract and pay the balance purchase
price in accordance with the terms and
conditions agreed upon. A copy of the
said letter dated 4th may, 1987 is
annexed hereto and marked as document
No.5".
Pursuant to the letter dated April 29, 1987 addressed by the plaintiff, the defendants in their reply dated 4.5.87 rejected the offer of the petitioners. Therein the petitioners themselves have expressly set out that there is a concluded contract of sale between the petitioners and the respondents and that they are ready and willing to perform their part of the contract paying the balance consideration in the terms and conditions of the said letters. In paragraph 28 of the plaint, April 29, 1987 is one of the dates set out to give them cause of action. On November 25, 1994 application under Order 6 Rule 17 was filed in I.A. 745/94 seeking to amend the plaint for the grant of the relief of specific performance. The averments made in support thereof is that they subsequently, discovered that the Charity Commissioner had granted permission for the sale of the Trust Property and, therefore, the petitioners are entitled to the decree of specific performance. That application was dismissed by the trial Court on January 20, 1995 and by the High Court on February 21, 1995 in CRP No. 510/95. Thus, this petition for leave.
Shri Santosh Hegde, learned senior counsel for the petitioners, has contended that the petitioners have not come forward with any new plea. They have set out all the material allegations and their claims in the plaint. What they are seeking for is only a formal relief which, though not originally asked for, the omission does not preclude the petitioners to file the application under Order 6 Rule 17 seeking for the amendment of the plaint. The relief is really founded upon the facts set out in the plaint and it is the subsequent knowledge about permission granted by the Charity Commissioner for alienation, which required the amendment. We find that the contention is not tenable.
It is seen that the permission for alienation is not a condition precedent to file the suit for specific performance. The decree of specific performance will always be subject to the condition to the grant of the permission by the competent authority. The petitioners having expressly admitted that the respondents have refused to abide by the terms of the contract, they should have asked for the relief for specific performance in the original suit itself. Having allowed the period of seven years elapsed from the date of filing of the suit, and the period of limitation being three years under Article 54 of the Schedule to the Limitation Act, 1963, any amendment on the grounds set out, would defeat the valuable right of limitation accrued to the respondent.
Shri Hegde placed strong reliance on the judgment of this Court in A.K.Gupta vs. D.V.C. reported in 1966 (1) SCR 796. In that case, the petitioners had expressly reserved the right to claim the amount of Rs.65,000/- in the original plaint, valuing it accordingly. Since, the relief of injunction was confined to a limited point, subsequently, he filed an application for the alternative relief of recovery of the amount of Rs.65,000/-. In that view, this Court held that since the petitioners have already reserved the right in the plaint, the relief of injunction, as originally prayed for, did not preclude the appellant to file the application under Order 6 Rule 17 to claim the relief for the amount which he originally sought for. The ratio therein has no application to the facts in this case.
On the facts, we hold that the application for amendment was barred by limitation. The petition is, accordingly, dismissed.