- (1.) The core issue in this petition is whether an amendment in the plaint seeking a relief which is alleged to be barred by limitation, should be allowed or not; should a plea relating to bar of limitation be decided at the stage of dealing an application for amendment; or should it be left for being decided in the suit, after allowing the amendment application.
(2.) The petitioner had instituted Original Suit No.835 of 1988 against the deceased defendant Roshan Singh (for short 'defendant') for restraining him from alienating the suit property in favour of any person during subsistence of agreement for sale dated 26.5.1986 in favour of the plaintiff. It was alleged that defendant no.1 had executed a registered agreement for sale in favour of the petitioner in respect of the suit property. One of the conditions of the agreement was that the defendant will obtain requisite permission from the competent authority under the Ceiling Act and clearance certificate from the Income Tax authorities and thereafter, inform the petitioner, who will within three years of receipt of the intimation, obtain a sale deed. It was alleged that the deceased defendant had failed to obtain the requisite permission. On the contrary, he had executed an agreement for sale in favour one Sri Raj Narayan Goel, which thus is wholly illegal. It was claimed that during subsistence of agreement for sale in favour of the plaintiff, the deceased defendant was not entitled to execute sale deed in favour of any person and consequently, relief for prohibitory injunction was claimed. During pendency of the suit, the deceased defendant had transferred the suit property in favour of respondent no.2 by sale deed dated 21.9.1991 registered on 24.9.2002. The heirs of the deceased defendant have made further alienations dated 28.5.2001, 8.7.2002 and 1.3.2007, all of which were subjected to challenge by seeking amendment in the plaint with consequential relief for declaration of the aforesaid sale deeds as null and void.
(3.) The suit was contested by the deceased defendant by taking a categorical plea that by notice dated 30.1.1987, he avoided the agreement contending that it was obtained by fraud and misrepresentation. Thereafter, he was free to negotiate for sale of the property and he could not be injuncted from doing so. It was also specifically pleaded that after refusal by the defendant to execute sale deed, the only remedy open to the plaintiff was to bring a suit for specific performance and suit for injunction simplicitor was not maintainable.;