Case Note & Summary
The litigation originated from an agreement to sell agricultural land bearing Field Survey No. 161 of Mouza Wanoja-Devi, executed on 9 February 1975 between the plaintiffs (appellants herein) and the defendant (respondent). The agreed price was Rs.1800 per acre for 11 acres and 24 gunthas, with Rs.1000 paid as earnest money. The date fixed for execution of the sale deed was 15 July 1975. The defendant came into possession around that date, though the parties disputed whether possession was given voluntarily or taken forcibly. The defendant, suspecting a defect in the plaintiffs' title, issued a notice demanding clarification, which the plaintiffs replied to. Despite being satisfied about the title thereafter, the defendant remained silent for about ten years, continuing in possession without paying the balance consideration or seeking specific performance. On 13 September 1985, the plaintiffs issued a rescission notice demanding possession and mesne profits at Rs.1000 per year. The defendant replied on 10 October 1985 asserting readiness to pay the balance and denying liability for damages. The plaintiffs filed Regular Civil Suit No. 3 of 1987 (later renumbered as 154 of 1992) on 2 January 1987 for possession and damages. The defendant filed his written statement on 25 June 1987, but did not raise a counter-claim for specific performance. After trial, the trial court decreed the suit in favor of the plaintiffs on 28 July 1993, directing the defendant to hand over possession. The defendant appealed under Section 96 CPC (Regular Civil Appeal No. 118 of 1993). During the pendency of the appeal, on 15 July 1996, the defendant filed an amendment application seeking to add a counter-claim for specific performance, pleading that his earlier advocate had failed to take the plea and that without a counter-claim, the court could not grant specific performance. The amendment application was initially rejected on 1 April 1997, but the High Court in Civil Revision Application No. 658 of 1997 set aside the rejection and directed the application to be heard with the appeal. Subsequently, the Additional District Judge allowed the amendment and remanded the suit for fresh trial on 25 February 1999. The plaintiffs challenged that remand order in Appeal against Order No. 90 of 1999, which was allowed by the High Court on 24 July 2000, setting aside the remand and directing the appellate court to reconsider the amendment on merits. After the reconsideration, the Additional District Judge, by the impugned order dated 30 October 2001, again allowed the amendment application, consequently allowed the appeal, set aside the trial court's decree, and remanded the suit for fresh decision. The present Appeal against Order No. 13 of 2002 was filed against that order. The appellants contended that the counter-claim was hopelessly time-barred, the inordinate delay was unexplained, and the defendant had adopted a supine approach to the contract. The court heard arguments and reserved judgment on 29 November 2006, and pronounced judgment on 19 December 2006. The extracted portion of the judgment only contains the factual matrix and procedural history; the substantive analysis and final decision are not included in the provided text.
Headnote
A) Civil Procedure - Amendment of Written Statement - Counter-claim - Code of Civil Procedure, 1908, Order VI Rule 17 - The defendant, who was in possession under an agreement of sale, initially filed written statement without counter-claim; after suit was decreed, he sought amendment in appeal to add counter-claim for specific performance; the appellate court allowed the amendment and remanded the suit; appellants challenged this order on grounds of limitation and delay (Paras 12-14). B) Limitation - Counter-claim - Limitation Act, 1963, Article 54 - The counter-claim for specific performance, though arising out of same transaction, was reportedly barred by limitation as it was filed years after the cause of action accrued; appellants argued the delay was unexplained and the defendant's approach was supine (Para 15). C) Specific Performance - Readiness and Willingness - Specific Relief Act, 1963 - In a suit for possession by vendor, the defendant claimed readiness and willingness to perform the contract, but his plea of being satisfied about title after initial doubt, and his long silence and enjoyment of property without paying balance consideration, raised issues of his bona fides; however, these issues are subject to trial after remand (Paras 2-3).
Issue of Consideration
Whether the appellate court's order allowing amendment of written statement to introduce a counter-claim for specific performance and consequently remanding the suit was sustainable in view of the grounds of limitation, unexplained delay, and the defendant's supine conduct?
Law Points
- Specific performance
- counter-claim
- limitation
- amendment of written statement
- Order VI Rule 17 CPC
- Section 96 CPC
- Section 145 CrPC
- readiness and willingness
