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PETITIONER: TARLOK SINGH

       Vs.

RESPONDENT: VIJAY KUMAR SABHARWAL

DATE OF JUDGMENT:       25/03/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (4)   245        1996 SCALE  (3)558

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      Shorn of  all the details regarding diverse litigations that went  on between  the parties, suffice it to state that the appellant  is the  owner of the lands. The respondent is successor-in-interest. The  respondent’s  father  admittedly had an  agreement of  sale on  December 21, 1984 executed by the appellant  to alienate the lands. In view of the pending proceedings time  for conveyance  was  further  extended  by agreement  dated   August  18,  1984  stipulating  that  the appellant shall  be required to execute the sale deed within 15 days  from the  date of the order vacating the injunction granted in  a suit.  We  are  informed  that  the  suit  was initially dismissed and thereafter a review application was  also   dismissed  as   withdrawn  on  March  22,  1986. Initially,  the   respondent  had  instituted  the  suit  on December 23,  1987 for perpetual injunction. The application under Order  6, Rule 17, CPC came to be filed for converting the suit  into one  for specific  performance  of  agreement dated August  18, 1984.  That application  was filed on July 17, 1989.  By order  dated August 25, 1989 the amendment was allowed. The appellant carried the matter in revision to the High Court in C.R. No.2724/89. The High Court by order dated November 29, 1989 had held thus:      "I do  not find  any illegality  or      irregularity in the order passed by      the  trial   Judge.  However,   the      vendor will be at liberty to take a      specific  plea   in   the   written      statement  which   he   will   file      pursuant to the amended plaint that      the suit  is beyond  limitation and      that  the   suit  was  even  beyond      limitation on  the  date  when  the      application   for   amendment   was

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    filed. After  the  amended  written      statement is  filed the trial Judge      will  frame   proper   issues   ind      dispose of  the same  according  to      law.      In view  of the  above directions,  the  appellant  has pleaded that  the suit  was barred  by limitation. The trial Court negatived  it and  decreed the suit. On appeal, it was confirmed. Second  appeal No.RSA  No.2485/93 by  order dated July 6,  1994, the Punjab & Haryana High Court dismissed it. Thus, this appeal by special leave.      The only  question is:  whether the  suit is  barred by limitation? Pursuant  to the  agreement dated  December  21, 1984, time  was  extended  for  specific  performance  which started running  after 15  days from  the date  the stay was vacated. It  is now  admitted position  that review petition was dismissed  on March 22, 1986. Thus, the limitation began to run  on April  6,  1986.  The  question,  therefore,  is: whether the  suit for  specific performance  is  within  the limitation? Article 54 of the Schedule to the Limitation Act 21 of 1963 reads thus:      "For  specific   performance  of  a      contract the  period of  limitation      is 3  years. The  limitation begins      to run  from the date fixed for the      performance, or, if no such date is      fixed,  when   the  plaintiff   has      notice that performance is refused.      Shri Prem Malhotra, learned counsel for the respondent, contended that  since the respondent had refused performance the suit  must be  deemed to have been filed on December 23, 1987 and,  therefore, when  the amendment  was  allowed,  it would relate  back to  the date of filing the suit which was filed within  three years  from the  date  of  the  refusal. Accordingly, the suit is not barred by limitation. Shri U.R. Lalit, learned  senior counsel  for the appellant, contended that in  view of  the liberty  given by  the High  Court the appellant is  entitled to  raise the plea of limitation. The suit filed  after expiry  of 3  years from 1986 is barred by limitation. The question is: as to when the limitation began to run?  In view  of the admitted position that the contract was to  be performed within 15 days after the injunction was vacated,   the limitation  began to run on April 6, 1986. In view of  the position that the suit for perpetual injunction was converted  into one  for specific  performance by  order dated August  25, 1989, the suit must be deemed to have been instituted on  August 25,  1989 and  the  suit  was  clearly barred by  limitation. We  find force  in the  stand of  the appellant.  We   think  that   parties  had,  by  agreement, determined the date for performance of the contract. Thereby limitation began  to run from April 6, 1986. Suit merely for injunction laid  on December  23, 1987  would not  be of any avail nor  the limitation  began to run from that date. Suit for perpetual injunction is different from suit for specific performance. The  suit for  specific performance in fact was claimed by way of amendment application filed under Order 6, Rule 17  CPC  on September 12, 1979. It will operate only on the application  being  ordered.  Since  the  amendment  was ordered on  August 25,  1989 the  crucial date  would be the date on  which the  amendment was  ordered  by  which  date, admittedly, the  suit is  barred by  limitation. The  courts below, therefore, were not right in decreeing the suit.      The appeal  is accordingly  allowed.  The  suit  stands dismissed. No costs.

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