Case Note & Summary
The petitioner, original plaintiff, filed a suit on 6.3.1996 for an injunction restraining the respondents from obstructing his peaceful possession over land survey no.49/2 at village Karanjgaon, taluka Maval. On 22.3.1999, he applied for amendment to incorporate the relief of specific performance of a contract. The trial court rejected the amendment on the ground that it was barred by limitation under Article 54 of the Limitation Act, 1963, which requires a suit for specific performance to be filed within three years from the date fixed for performance, or if no date is fixed, when the plaintiff has notice that performance is refused. The trial court found that the petitioner had notice of refusal on 28.2.1996, the date of a notice served by the petitioner calling upon the respondent to comply with the contract within one month. The High Court held that this finding was unsustainable because the notice itself gave the respondent one month to perform; therefore, the petitioner could only have notice of refusal after the expiry of that month. Consequently, the limitation period would run from the date of refusal, which would be at the earliest one month after 28.2.1996. The amendment application filed on 22.3.1999 was within three years from that date. The High Court set aside the impugned order and allowed the amendment.
Headnote
A) Limitation Act - Specific Performance - Article 54 - Amendment of Pleadings - The petitioner sought to amend the plaint to add a prayer for specific performance of contract - The trial court rejected the amendment holding it barred by limitation under Article 54 - The High Court held that the notice dated 28.2.1996 called upon the respondent to perform within one month, so the plaintiff had notice of refusal only after that period expired - The amendment application filed on 22.3.1999 was within three years from the date of notice of refusal - The impugned order was set aside and the amendment allowed (Paras 3-6).
Issue of Consideration
Whether the amendment seeking to incorporate the relief of specific performance of a contract is barred by limitation under Article 54 of the Limitation Act, 1963.
Final Decision
The impugned order below exh.40 in Regular Civil Suit no.34/96 is set aside. The amendment application is allowed.
Law Points
- Amendment of pleadings
- Limitation for specific performance
- Article 54 Limitation Act
- 1963
- Notice of refusal
- Computation of limitation
Case Details
2005 LawText (BOM) (01) 8
Writ Petition No.7560 of 2003
Mr.S.V.Pitre for the petitioner. None for the respondents though served.
Shri Natha Haribhau Deshmukh
Shri Vasant Nivrutti Ragade & Anr.
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Nature of Litigation
Civil writ petition challenging rejection of amendment application in a suit for injunction.
Remedy Sought
Petitioner sought to amend the plaint to add a prayer for specific performance of contract.
Filing Reason
The trial court rejected the amendment application on the ground of limitation under Article 54 of the Limitation Act, 1963.
Previous Decisions
The trial court rejected the amendment application (exh.40) in Regular Civil Suit no.34/96.
Issues
Whether the amendment seeking to incorporate the relief of specific performance is barred by limitation under Article 54 of the Limitation Act, 1963.
Submissions/Arguments
Petitioner argued that the notice dated 28.2.1996 gave one month to perform, so the limitation period started only after the expiry of that month, and the amendment filed on 22.3.1999 was within three years.
Ratio Decidendi
For the purpose of Article 54 of the Limitation Act, 1963, when a notice calls upon the opposite party to perform within a specified period, the plaintiff has notice of refusal only after the expiry of that period. The limitation for filing a suit for specific performance runs from the date of such notice of refusal, not from the date of the notice itself.
Judgment Excerpts
The petitioner who made an application for amendment by which he sought to incorporate the relief of specific performance of a contract has approached this Court in view of the rejection of his amendment.
This finding is not sustainable in view of the fact that the petitioner served the notice dated 28.2.1996 calling upon the respondent to comply with the terms of the contract within one month of the receipt of the notice.
In this case, it must be construed that the petitioner had notice of the refusal of the contract within one month of 28.2.1996 i.e. the date of the notice or longer i.e. within one month from the date of receipt of the notice.
Procedural History
The petitioner filed a suit on 6.3.1996 for injunction. On 22.3.1999, he applied for amendment to add specific performance. The trial court rejected the amendment. The petitioner filed this writ petition on 12.8.2003, which was admitted for final disposal. The High Court heard and allowed the petition on 17.1.2005.
Acts & Sections
- Limitation Act, 1963: Article 54
