Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit vs Ramesh Chander

Ramesh Chander & Others ..Respondent(s)

J U D G M E N T

GANGULY, J.

1. Leave granted.

2. The appellant, Van Vibhag Karamchari Griha Niraman

Sahkari Sanstha Maryadit, Indore (hereinafter

referred to as `the appellant'), was constituted and

registered under the Madhya Pradesh Cooperative

Society Act, 1960 on 26.5.1970, for the purpose of

1 providing residential plots to the employees of the

forest department of Madhya Pradesh Government.

3. On 28.3.1974, three farmers, namely Ramesh Chander

(hereinafter referred to as `the first respondent'),

Mahavir Singh and Chunni Lal, entered into an oral

agreement with the appellant to sell their

respective land measuring 2.039 hectares bearing

khasra No. 203/2, 1.019 hectares bearing khasra No.

203/1 and 1.602 hectares bearing khasra No. 204/1,

situated at village Chitawad tehsil and district

Indore, to the appellant at Rs.2 lacs per hectare.

On 25.1.1975, all the three farmers jointly received

Rs.2000/- as earnest money as per the agreement

dated 28.3.1974 and delivered possession of the said

land to the appellant. The agreement to sell was

executed and signed by all three farmers on

31.3.1976. The present dispute only concerns Ramesh

Chander, i.e. the first respondent.

4. The Urban Land (Ceiling and Regulation) Act, 1976

(hereinafter the Ceiling Act) was passed by the

Central Government and enforced by the Government of

Madhya Pradesh (MP) on 9.9.1976. The first

2 respondent filed details of the total vacant land

possessed by him before the competent authority

under the Ceiling Act on 24.12.1979 and also filed

an exemption application under Section 20 of the

Ceiling Act, in which he specified that land bearing

khasra No. 203/2 was sold to the appellant.

5. The first respondent also submitted his affidavit to

the appellant on 23.7.1982 that he had sold his

agricultural land bearing khasra No. 203/2 to the

appellant for consideration and that possession of

the same had been handed over. Full payment of the

sale consideration amounting to Rs.3,20,000/- was

made to the first respondent on 28.8.1984.

6. On 26.4.1985, the Indore Development Authority

declared a Scheme over including the disputed land.

Accordingly, the Government of M.P. issued a

notification under Section 4(1) of the Land

Acquisition Act, 1894 with respect to the said land.

On 17.6.1985, the first respondent filed an

application to the District Collector, Indore

stating that he had sold the disputed land to the

appellant and possession of the same had been handed

3 over to the appellant, and that the first respondent

did not have any right regarding the acquisition of

the said land or to get compensation for the same.

All proceedings regarding acquisition were to be

referred to the appellant and he prayed that the

said land be exempted from acquisition.

7. Thereafter, notification under Section 6 of Land

Acquisition Act was published on 11.6.1986.

8. The first respondent had filed another affidavit

dated 16.12.1986 stating that the appellant was in

possession of the land in question.

9. On 5.1.1987, the appellant filed a writ petition

(No.39/1987) along with the first respondent in the

High Court, for quashing the acquisition of the

disputed land. The High Court issued an ad-interim

injunction on 15.1.1987 staying further proceedings

before the Land Acquisition Officer.

10. The first respondent, on 3.2.1991, issued a public

notice in a local daily, called Dainik Bhaskar, that

he is the owner and in possession of the disputed

4 land, and any action taken by the appellant over

such land would not affect the rights of ownership

and possession of the first respondent over the

land. He also stated that the agreement to sell and

Power of Attorney in favour of the appellant stood

cancelled. Immediately, thereafter, the appellant

filed a suit on 11.2.1991 (COS No. 19A/1990) for

declaration of ownership of the appellant Society in

suit land and for permanent injunction in the court

of 3rd Civil Judge, Class II, Indore. The suit was

subsequently transferred to the 7th Civil Judge,

Class II, Indore as COS No. 603A/1992.

11. Appellant's prayer for temporary injunction made in

the suit was dismissed by the Trial Court on

8.10.1998 by a detailed reasoned order and in that

order it has been mentioned by the learned Trial

Judge, that the appellant (plaintiff in the suit)

failed to make out any strong prima facie case and

that the suit was not filed for relief of specific

performance. (Para 48 of the order).

12. On 14.1.1994, when the writ petition before the High

Court came up for hearing, the Indore Development

5 Authority declared that it had withdrawn its scheme,

and therefore, the High Court allowed the writ

petition and quashed the notification under the Land

Acquisition Act. The High Court ordered the land be

reverted to the original owner as the notification

under challenge was quashed.

13. On 3.1.2000, Samroj Khan, 7th Civil Judge, Class II

and Judicial Magistrate, 1st class, filed a complaint

before the Chief Judicial Magistrate (CJM), 1st

Class, Indore, under Section 340 of the Code of

Criminal Procedure, 1973, on the ground that the

first respondent had committed offences under

section 199/193 of the IPC, and requested the CJM to

prosecute him for such offences. The said complaint

is still pending.

14. The Parliament enacted the Urban Land (Ceiling and

Regulations) Repeal Act, 1999 and the Legislative

Assembly of Madhya Pradesh adopted it by a

resolution dated 17.2.2000. Accordingly, the Ceiling

Act stood repealed in Madhya Pradesh with effect

from 17.2.2000.

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15. Thereafter, appellant by a legal notice dated

4.6.2000 called upon the first respondent to execute

and register the sale deed of the disputed land in

favor of the appellant and failing which the

appellant threatened to file a suit for specific

performance. The first respondent, by a legal notice

dated 17.6.2000, refused to act in terms of the

notice of the appellant dated 4.6.2000. In the

meantime the appeal filed by the appellant against

the order dated 8.10.1998 passed by the Trial Court

refusing to grant temporary injunction, was also

dismissed by the order dated 15.5.2002, and the

findings reached by the Trial Court in its order

dated 8.10.1998 were affirmed by the First

Additional District Judge, Indore. The appellant

did not carry the challenge any further against such

concurrent refusal of its prayer for temporary

injunction.

16. Then the appellant moved on 16.12.2002 an

application for amendment of the pleadings under

Order 6 Rule 17 of CPC in the pending civil suit for

inclusion of the relief of specific performance of

contract. The same was allowed by the order dated

7 10.3.2003 and the amendment was accordingly

incorporated on 17.3.2003.

17. The first respondent filed an application under

Section 114 and Order 47 Rule 1 CPC for a review of

the order dated 10.3.2003. The same was dismissed by

Court on 23.6.2003. The plaint was returned to the

appellant for filing the same in the Court of

competent jurisdiction as the suit exceeded the

pecuniary jurisdiction of the Civil Court (category

II).

18. Immediately on 25.6.2003, the appellant presented

the plaint in the Court of 6th Additional District

Judge, Indore along with an application under

Section 14 of the Limitation Act, praying for

exclusion of time spent in prosecuting the suit in

the Court of 7th Civil Judge Class II, Indore (i.e.

from 11.2.1991 to 23.6.2003). The plaint was

transferred to the 19th Additional District Judge,

Indore and was registered as COS No. 6A/2003.

19. Before the trial court, the appellant contended that

on 11.2.1991, while instituting the suit, it had not

8 sought the relief of specific performance in view of

the fact that no exemption under Section 20 of Urban

Land Ceiling Act (hereinafter, `the Act') was

obtained in respect of suit land. However, the said

contention was rejected by the Trial Court on

23.8.2004 by a detailed order and the suit was

dismissed. The trial court also dismissed the

application under Section 14 of the Limitation Act

filed by the plaintiff (appellant herein) praying

for exclusion of time from 11.2.1991 to 23.6.2003.

20. Aggrieved thereby, the appellant filed a writ

petition before the High Court, which was treated as

Appeal No. 142/2005. The High Court, vide its

impugned judgment dated 10.8.2007, dismissed the

appellant's appeal.

21. Assailing the judgment of the High Court, the

learned Counsel for the appellant urged that the

agreement for sale, dated 31.3.1976, was acted

upon by all the vendors including the first

respondent. It was specifically urged that the

first respondent participated and cooperated

with the appellant in all legal proceedings in

9 respect of the said land wherein the first

respondent took the stand that the land in

question has been agreed to be sold to the

appellant for valuable consideration and that

the appellant has been put in possession of the

same. This Court therefore, should not allow the

appellant to approbate and reprobate by taking a

completely different stand in the public notice

which was published by him in Dainik Bhaskar. In

support of such contention, the learned counsel

relied on a few judgments.

22. Reliance was first placed on the judgment of

this Court in the case of C. Beepathumma & Ors.

v. V.S. Kadambolithaya & Ors., reported in

(1964) 5 SCR 836. The learned Counsel relied on

the doctrine of election, by referring to

Maitland's Lectures on Equity, as also on

Leading Cases on Equity by White and Tudor,

considered by this Court in page 850 of the

report. In the aforesaid case, this Court was

explaining the doctrine of election that

prohibits a person from taking inconsistent

10 stand in connection with certain documents. It

may be noted that neither before the Trial Court

nor the High Court, did the appellant advance

this argument. Apart from that, in the notice

dated 3.2.1991, the first respondent clearly

stated that the agreement of sale between him

and the appellant stood cancelled and the first

respondent asserted his title over the plot of

land in question.

23. Under the aforesaid circumstances, the crucial

question is whether the appellant has a cause of

action to file a suit for specific performance.

In our judgment, the refusal by the first

respondent to acknowledge the right of the

appellant over the land in its public notice

dated 3.2.1991 definitely furnishes the

appellant with a cause of action to file a suit

for Specific Performance.

24. If the appellant had filed such a suit, it could

in the said suit, have questioned the action of

the first respondent as blowing hot and cold.

11 But it has not filed such a suit within the

period of limitation prescribed for filing such

a suit.

25. Therefore, the principles of the law of

election, discussed in C. Beepathumma (supra) in

a totally different factual context, is of no

assistance to the appellant in this case.

26. The other decision on which reliance was placed

by the learned Counsel for the appellant was

rendered in the case of New Bihar Biri Leaves

Co. & Ors. v. State of Bihar & Ors. reported in

(1981) 1 SCC 537. The same principles of

approbation and reprobation have been discussed

in paragraph 48. In the said case, this Court

invoked the said principles to disapprove the

actions of the petitioner who participated in a

public auction by accepting its terms but later

on sought to impugn them as violative of

Articles 14 and 19(1)(g) of the Constitution. In

the present case, the factual situation is

12 totally different and the appellants have not

filed any suit for Specific Performance against

the first respondent within the period of

limitation.

27. In this context, the provision of Article 54 of

the Limitation Act is very relevant. The period

of limitation prescribed in Article 54 for

filing a suit for specific performance is three

years from the date fixed for the performance,

or if no such date is fixed, when the plaintiff

has notice that performance is refused.

28. Here admittedly, no date has been fixed for

performance in the agreement for sale entered

between the parties in 1976. But definitely by

its notice dated 3.2.1991, the first respondent

has clearly made its intentions clear about

refusing the performance of the agreement and

cancelled the agreement.

29. The appellant, on noticing the same, filed a

suit on 11.2.1991 but he did not include the

13 plea of Specific Performance. The appellant

wanted to defend this action by referring to two

facts- (i) there was an acquisition proceeding

over the said land under the Land Acquisition

Act and (ii) in view of the provisions of the

Ceiling Act, the appellant could not have made

the prayer for Specific Performance.

30. The aforesaid purported justification of the

appellant is not tenable in law. If the alleged

statutory bar referred to by the appellant stood

in its way to file a suit for Specific

Performance, the same would also be a bar to the

suit which it had filed claiming declaration of

title and injunction.

31. In fact, a suit for Specific Performance could

have been easily filed subject to the provision

of Section 20 of the Ceiling Act. Similar

questions came up for consideration before a

Full Bench of Gujarat High Court in the case of

Shah Jitendra Nanalal v. Patel Lallubhai

Ishverbhai [AIR 1984 Guj 145]. The Full Bench

14 held that a suit for Specific Performance could

be filed despite the provisions of the Ceiling

Act. A suit for Specific Performance in respect

of vacant land in excess of ceiling limit can be

filed and a conditional decree can be passed for

Specific Performance, subject to exemption being

obtained under Section 20 of the Act. (Paras 11-

13)

32. We are in respectful agreement with the views of

the Full Bench in the abovementioned decision

and the principles decided therein are attracted

here.

33. This Court is, therefore, of the opinion that

the appellant had the cause of action to sue for

Specific Performance in 1991 but he omitted to

do so. Having done that, he should not be

allowed to sue on that cause of action which he

omitted to include when he filed his suit. This

Court may consider its omission to include the

relief of Specific Performance in the suit which

it filed when it had cause of action to sue for

15 Specific Performance as relinquishment of that

part of its claim. The suit filed by appellant,

therefore, is hit by the provisions of Order 2

Rule 2 of the Civil Procedure Code.

34. Though the appellant has not subsequently filed

a second suit, as to bring his case squarely

within the bar of Order 2 Rule 2, but the broad

principles of Order 2 Rule 2, which are also

based on public policy, are attracted in the

facts of this case.

35. Even though the prayer for amendment to include

the relief of specific performance was made

about 11 years after the filing the suit, and

the same was allowed after 12 years of the

filing of the suit, such an amendment in the

facts of the case cannot relate back to the date

of filing of the original plaint, in view of the

clear bar under Article 54 of the Limitation

Act.

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36. Here in this case, the inclusion of the plea of

Specific Performance by way of amendment

virtually alters the character of the suit, and

its pecuniary jurisdiction had gone up and the

plaint had to be transferred to a different

court.

37. This Court held in Vishwambhar & Ors. v.

Laxminarayan & Anr. reported in (2001) 6 SCC

163, if as a result of allowing the amendment,

the basis of the suit is changed, such amendment

even though allowed, cannot relate back to the

date of filing the suit to cure the defect of

limitation. (Para 9 at pg. 168-9) Those

principles are applicable to the present case.

38. In K. Raheja Constructions Ltd. & Anr. v.

Alliance Ministries & Ors. reported in 1995

Suppl.(3) SCC 17, this court held that an

application for amendment filed 7 years after

the filing of the suit to include the plea of

Specific Performance, would not defeat the

17 valuable rights of limitation accruing to the

other side. In that case, the factual position

was somewhat similar to the present case and

this Court held that when a plea for Specific

Performance was not included in the original

suit, it could not be included after a period of

7 years having regard to Article 54 of the

Limitation Act. (Para 4 at pg.18-19).

39. For the reasons aforesaid, this court is of the

view that the plea of specific performance,

which is a discretionary relief, cannot be

granted to the appellant in this case. The

Court below and the High Court were correct in

their reasoning in dismissing the suit and the

first appeal respectively.

40. The appeal, therefore, is dismissed. The parties

are left to bear their own costs.

.....................J. (G.S. SINGHVI)

18 .....................J. (ASOK KUMAR GANGULY)

New Delhi October 19, 2010

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