VAN VIBHAG KARAMCHARI GRIHA NIRMAN SAHKARI SANSTHA MARYADIT (REGD.)versusRAMESH CHANDER AND ORS.

                   [2010] 12 S.C.R. 1045


 VAN VIBHAG KARAMCHARI GRIHA NIRMAN SAHKARI                    A
           SANSTHA MARYADIT (REGO.)
                             v.
              RAMESH CHANDER AND ORS.
              (Civil Appeal No. 8982 of 2010)
                                                               B
                    OCTOBER 19, 2010

   [G.S. SINGHVI AND ASOK KUMAR GANGUL'., JJ.]
                                                .'   .
      Code of Civil procedure, 1908: 0. 2 r. 2 and 0. 6 r. 17 -
 Omission to sue for one of several reliefs and inclusion of C
omitted relief after long time - Cancellation of agreement of
 sale of suit land - Intimation of cancellation - Suit by vendee
 seeking declaration of ownership and permanent injunction
over suit land - Inclusion of relief of specific performance by
way of amendment after about 11 years of filing of the said D
suit - Held: The cause of action to file a suit for specific
performance arose on intimation of cancellation of agreement
of sale - Omission to include the relief of specific performance
in the suit for declaration would be considered as
relinquishment of that part of claim - Relief of specific E
performance was, therefore, hit by the provision of 0. 2 r. 2 -
Although the inclusion of relief was allowed by way of
amendment, it would not relatr back to the date of filing of the
original plaint, in view of the ciear bar under Article 54 of the
Limitation Act since such inclusion virtually altered the F
character of the suit - Urban Land (Ceiling and Regulation)
Act, 1976 - Land Acquisition Act, 1894 - Limitation Act, 1963
- s. 14; Schedule II, Article 54 - Specific performance - Cause
of action - Delay - Suit.

    The first respondent entered into an agreement of          G
sale of suit land with the appellant and received earnest
money and delivered the posse~sion of the land to the
appellant.

                           1045                                H
    1046   SUPREME COURT REPORTS             [2010] 12 S.C.R.


A      On 26.4.1985, the acquisition proceedings under the
  Land Acquisition Act, 1894 were initiated in respect of the
  suit land. The appellant filed a writ petition before the
  High Court for quashing the acquisition proceedings.
  The High Court stayed the acquisition proceedings.
B However, on 3.2.1991, the first respondent issued a
  public notice that he was the owner and in possession
  of the suit land, and any action taken by the appellant
  over such land would not affect his rights of ownership
  and possession over the land since the agreement to sell
c and power of attorney in favour of the appellant had been
  cancelled. Immediately, thereafter, the appellant filed a
  suit for declaration of ownership and for permanent
  injunction in respect of the suit land. The prayer for
  temporary injunction made by the appellant was
  dismissed. The said finding was affirmed by first appellate
0
  court and, thereafter, not challenged further by the
  appellant.

       On 14.1.1994, when the writ petition for quashing of
  the acquisition proceedings came up for hearing before
E the High Court, the authorities declared that it had
  withdrawn its scheme. The High Court allowed the writ
  petition and ordered that the land should be reverted to
  the original owner as the acquisition notification was
  quashed.
F
       On 16.12.2002, the appellant filed 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.
G 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.
  Immediately on 25.6.2003, the appellant presented the
  plaint in the District Court along with an application under
  Section 14 of the Limitation Act, praying for exclusion of
H
VAN VIBHAG K.G.N. SAHKARI SANSTHA MARYADIT1047
            v. RAMESH CHANDER
time spent in prosecuting the suit. The trial court             A
dismissed the suit and also the application under Section
14 of the Limitation Act. The High Court upheld the
decision of the trial court. The instant appeal was filed
challenging the order of the High Court.
                                                                B
     Dismissing the appeal, the Court

      HELD: 1. The refusal by the first respondent to
 acknowledge the right of the appellant over the land in
 its public notice dated 3.2.1991 furnished the appellant
 with a cause of action to file a suit for specific C
 performance. The period of limitation prescribed in Article
 54 of Schedule II to the Limitation Act, 1963 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. D
 Admittedly, no date was 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 made its in~entions clear about. refusing the
 performance of the agreement and cancelling the E
 agreement. The appellant, on noticing the same, filed a
suit on 11.2.1991, but he did not include the plea of
specific performance. Th'' appellant defended non-
 inclusion of the plea of specific performance by referring
to the two facts that there was an acquisition proceeding F
over the said land under the Land Acquisition Act and in
view of the provisions of the Urban Land (Ceiling and
Regulation) Act, 1976, the appellant could not have made
the prayer for specific performance. The said purported
justification of the appellant was not tenable in law. If the G
alleged statutory bar referred to by the appellant stood
in its way to file a suit for specific performance, the same
would also have been a b~r to the suit wh.ich it had filed
claiming declaration of title and injunction. In fact, a suit
for specific performance could have been easily filed
                                                                 H
    1048     SUPREME COURT REPORTS              [2010) 12 S.C.R.


A subject to the provision of Section 20 of the Ceiling Act.
  The appellant had the cause of action to sue for specific
  performance in 1991 but he omitted to do so. The
  omission to include the relief of specific performance in
  the suit which it filed when it had cause of action to sue
B for specific performance is to be considered as
  relinquishment of that part of its claim. The suit filed by
  the appellant, therefore, was hit by the provisions of Order
  2 Rule 2, CPC. Though the appellant did not
  subsequently file a second suit, as to bring his case
c 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 were attracted in the facts of this case. 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
0
  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. In the instant case, the inclusion of the
   plea of specific performance by way of amendment
E virtually altered the character of the suit, and its pecuniary
  jurisdiction went up and the plaint was to be transferred
   to a different court. If as a result of allowing the
   amendment, the basis of the suit is changed, such
   amendment even though allowed, cannot relate back to
F the date of filing the suit to cure the defect of limitation.
   The plea of specific performance, which is a discretionary
   relief, cannot be granted to the appellant in the instant
   case. The court below and the High Court were correct
   in their reasoning in dismissing the suit and the first
G appeal respectively. (Paras 23, 24, 27, 28, 29, 30, 31, 33-
   37, 39) [1055-B-C-H; 1056-A-F, 1057-B-H; 1058-D]

           Shah Jitendra Nana/al v. Patel Lalfubhai lshverbhai AIR


H
VAN VIBHAG K.G.N. SAHKARI SANSTHA MARYADIT1049
            v. RAMESH CHANDER
1984 Guj 145; Vishwambhar & Ors. v. Laxminarayan & Anr.        A
(2001) 6 SCC 163; K. Raheja Constructions Ltd. & Anr. v.
Alliance Ministries & Ors. 1995 Suppl. (3) SCC 17 - relied
on.

     C. Beepathumma & Ors. v. V. S. Kadambolithaya & Ors.      8
(1964) 5 SCR 836; New Bihar Biri Leaves Co. & Ors. v. State
of Bihar & Ors. (1981) 1 SCC 537 - distinguished.

                    Case Law Reference:

    (1964) 5 SCR 836           distinguished       Para 22     c
    (1981) 1   sec 537         distinguished       Para 26

    AIR 1984 Guj 145           relied on           Para 31

    (2001) 6sec 163        relied on               Para 37
                                                               D
    1995 Suppl. (3) sec 17 relied on               Para 38

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
8982 of 2006.

    From the Judgment & Order dated 10.8.2007 of the High      E
Court of Madhya Pradesh at Indore in First Appeal No. 142 of
2005.

    Pallav Shisodia, P.O. Sharma, Dr. Naipal Singh for the
Appellant.                                                     F
    Jaideep Gupta, Niraj Sharma, L.P. Singh, Pradeep
Aggarwal, Deepam Borah, Himanshu Gupta for the
Respondents.

    The Judgment of the Court was delivered by                 G
    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     H
    1050    SUPREME COURT REPORTS                [2010) 12 S.C.R.


A   Madhya Pradesh Cooperative Society Act, 1960 on 26.5.1970,
    for the purpose of 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
8
  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
C 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 28.3.197 4 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
D 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
E Government and enforced by the Government of Madhya
  Pradesh (MP) on 9.9.1976. The first 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
F 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
G 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
H declared a Scheme over including the disputed land.
VAN VIBHAG K.G.N. SAHKARI SANSTHA MARYADIT1051
v. RAMESH CHANDER [ASOK KUMAR GANGULY, J.]
Accordingly, the Government of M.P. issued a notification            A
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 over to the appellant, and that the         B
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.                                                         c
    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       D
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        E
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 land, and any action        F
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/    G
1990) for declaration of ownership of the appellant Society in
suit land and for permanent injunction in the court of 3rd Civil
Judge, Class 11, Indore. The suit was subsequently transferred
to the 7th Civil Judge, Class 11, Indore as COS No. 603A/1992.
                                                                     H
    1052     SUPREME COURT REPORTS                  (2010] 12 S.C.R.


A       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
B 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 lrdore Development Authority
  declared that it had withdrawn its scheme, and therefore, the
C 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.

D      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
E 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
F   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.

       15. Thereafter, appellant by a legal notice dated 4.6.2000
G 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
H
VAN VIBHAG K.G.N. SAHKARI SANSTHA MARYADIT1053
v. RAMESH CHANDER [ASOK KUMAR GANGULY, J.]
dated 4.6.2000. In the meantime the appeal filed by the               A
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        B
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         C
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 10.3.2003 and the amendment was accordingly
incorporated on 17.3.2003.

     17. The first respondent filed an application under Section      D
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).              E

     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
                                                                      F
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      G
11.2.1991, while instituting the suit, it had not 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          H
    1054     SUPREME COURT REPORTS                [2010] 12 S.C.R.


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
8
    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
C 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 respect of the said land wherein the
D 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 first respondent to approbate and reprobate by taking a
E 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 en the judgment of this Court
  in the case of C. Beepathumma & Ors. v. V. S.
F 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
G explaining the doctrine of election that prohibits a person from
  taking inconsistent 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
H that the agreement of sale between him and the appellant stood
VAN VIBHAG K.G.N. SAHKARI SANSTHA MARYADIT1055
v RAMESH CHANDER (ASOK KUMAR GANGULY, J.]
cancelled and the first respondent asserted his title over the plot     A
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
                                                                        B
respondent to acknowledge the right of the appellant over tl1e
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   C
suit, have questioned the action of the first respondent as
blowing hot and cold. 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,              D
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.            E
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       F
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 totally different and the appellants have not filed any
suit for Specific Performance against the first respondent within
the period of limitation.                                               G
      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
                                                                        H
    1056     SUPREME COURT REPORTS                 [2010] 12 S.C.R


A   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
B 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
C 11.2.1991 but he did not include the 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
D 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
E 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 befo~e a Full
F Bench of Gujarat High Court in the case of Shah Jitendra
   Nana/al v. Patel Lal/ubhai /shverbhai [AIR 1984 Guj 145]. The
   Full Bench 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
G 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

H
VAN VIBHAG K.G.N. SAHKARI SANSTHA MARYADIT1057
v. RAMESH CHANPER [ASOK KUMAR GANGULY, J.]
Full Bench in the abovementioned decision and the principles            A
decided therein are attracted here.

      33. This Court is, therefore, of the opinion tha~ 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             8
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 Specific
Performance as relinquishment of that part of its claim. The suit       C
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         D
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            E
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.

     36. Here in this case, the inclusion of the plea of Specific       F
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.                        G
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.
                                                                        H
    1058    SUPREME COURT REPORTS                [2010] 12 S.C.R.

A   (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
8
  filing of the suit to include the plea of Specific Performance,
  would not defeat the 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
C 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,
D 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
E   left to bear their own costs.

    D.G.                                        Appeal dismissed.