REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8982 OF 2010 (Arising out of SLP (Civil) No.1518 of 2008)

Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Regd.)  ..Appellant(s)

Versus  

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.  

6

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.  

16

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

19