Gajanan
Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar [1989] INSC 381 (13 December 1989)
Venkataramiah,
E.S. (Cj) Venkataramiah, E.S. (Cj) Kania, M.H.
CITATION:
1989 SCR Supl. (2) 474 1990 SCC (1) 166 JT 1989 (4) 524 1989 SCALE (2)1323
ACT:
Civil
Procedure Code, 1908: Order VI Rule 17--Plaint-Amendment of--When to be
permitted.
Specific
Relief Act, 1963: Section 16(c)--Suit for specific performance-Amendment of
plaint----Permissibility of.
HEAD NOTE:
For
selling an immovable property, respondent entered into an agreement with the
appellant. Appellant paid part of the consideration and he was put in
possession of the property. Since the respondent failed to execute the
registered sale-deed, the appellant filed a suit. There was no specific
averment in the suit that the appellant was and had always been ready and
willing to perform his part of the agreement.
Respondent
contended inter-alia that the suit was not maintainable for non-compliance with
the provisions of Section 16(c) of the Specific Relief Act, 1963. This issue
was directed to be tried as a preliminary issue. At that stage, the appellant
applied for leave to amend the plaint by incorporating an averment that he was
always and had been ready and willing to perform his part of the agreement. The
trial court rejected the application.
The
revision petition filed in the High Court was dismissed. The High Court took
the view that the application for amendment was filed beyond the period of
limitation and cannot be granted, as a vested interest of the respondent would
be disturbed.
This
appeal is against the judgment of the High Court.
Allowing
the appeal, this Court,
HELD:
1.1 Amendments should be refused only where the other party cannot be placed in
the same position as if the pleading had been originally correct, but the
amendment would cause him an injury which could not be compensated in costs. It
is merely a particular case of this general rule that. where a plaintiff seeks
to amend by setting up a fresh 475 claim in respect of a cause of action which,
since the institution of the suit, had become barred by limitation, the
amendment must be refused; to allow it would be to cause the defendant an
injury which could not be compensated in costs by depriving him of a good defence
to the claim.
Courts
would as a rule, decline to allow amendments, if a fresh suit on the amended
claim would be barred by limitation on the date of the application. But that is
a factor to be taken into account in exercise of the discretion as to whether
application for amendment should be granted and does not affect the power of
the Court to order it, if that is required in the interest of justice. [477A-D]
1.2 In
the present case, no fresh cause of action was sought to be introduced by the
amendment applied for. All that the appellant sought to do was to complete the
cause of action for specific performance and add an averment which required to
be added in view of the provisions of sub-section (c) of Section 16 of the
Specific Relief Act. There was no fresh cause of action sought to be introduced
by the amendment and hence, no question of causing any injustice to the
respondent on that account arose. [477E-F] Pirgonda Hongonda Patil v. Kalgonda Shidgonda
Patil and Ors., AIR 1957 SC 363 and L.J. Leach & Co. and Anr. v. Messrs Jardine
Skinner & Co., AIR 1957 SC 357, relied on.
Ouseph
Varghese v. Joseph Aley & Ors., [1963] 2 SCC 539, distinguished.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 1638 of 1987.
From
the Judgment and Order dated 28.11.1986 of the Karnataka High Court in C.R.P.
No. 365 of 1984.
S.B. Bhasme
and A.S. Bhasme for the Appellant.
R.S. Hegde
and S.N. Bhat for the Respondent.
The
Judgment of the Court was delivered by KANIA, J. This is an appeal from a
judgment and order of a learned Single Judge of the Karnataka High Court.
Only a
few facts are necessary to appreciate the controversy raised before us.
476
The appellant herein was the plaintiff in Original Suit No. 103 of 1981 in the
Court of 2nd Additional Civil Judge, Belgaum. It was the case of the appellant in the plaint that on July 16, 1976 the respondentdefendant entered
into an agreement in his favour for sale of the suit property comprising a shop
and a bhatti room situated at Kirloskar Road,
Belgaum City for a sum of Rs.20,000. The
appellant paid to the respondent as part consideration a sum of Rs.5,000 and
pursuant to the agreement for sale the appellant was put in possession of the
suit property. The sale agreement provided that the registered sale deed was to
be executed by the respondent after securing a No Objection certificate or
permission from the competent officer as required under the Karnataka Urban
Land Ceiling Act and within one month of the grant of such permission. The
respondent received the No Objection or permission as aforesaid on March 31, 1981 but failed to execute the
registered deed of sale as provided under the said agreement. Hence, on 30th June, 1981, the appellant filed the present
suit. It may be observed here that in the plaint, there was no specific
averment that the appellant was and had always been ready and willing to
perform his part of the said agreement. The respondent filed a written
statement raising several contentions and inter alia raised the contention that
the suit was not maintainable for non-compliance with the provisions of section
16(c) of the Specific Relief Act, 1963. The issue as to whether the suit was
not maintainable on the aforesaid ground was directed to be tried as a
preliminary issue. At this stage, the appellant applied for leave to amend the
plaint by incorporating an averment in the plaint that the appellant was and
had always been ready and willing to perform his part of the said agreement.
The learned Additional Civil Judge before whom the said application was made,
rejected the same. A revision petition was preferred by the appellant against
the judgment of the learned Additional Civil Judge to the High Court of
Karnataka but the said revision petition was dismissed by a learned Single
Judge of the said High Court as aforesaid. The learned judge took the view that
the application for amendment was filed beyond the period of limitation and the
application could not be granted as a vested right of the respondent would be
disturbed by allowing the said amendment. It is the correctness of this
decision which is challenged before us.
In the
leading case of Pirgonda Hongonda Patii v. Kalgonda Shidgonda Patil and Others,
AIR 1957 SC 363 a Bench comprising three learned Judges of this Court laid down
the principles which should govern the question of granting or disallowing
amendments. It was held by this Court that all amendments ought to be allowed
which 477 satisfy the two conditions: (a) not working injustice to the other
side, and (b) of being necessary for the purpose of determining the real
questions in controversy between the parties. Amendments should be refused only
where the other party cannot be placed in the same position as if the pleading
had been originally correct, but the amendment would cause him an injury which
could not be compensated in costs.
It is
merely a particular case of this general rule that where a plaintiff seeks to
amend by setting up a fresh claim in respect of a cause of action which since
the institution of the suit had become barred by limitation, the amendment must
be refused; to allow it would be to cause the defendant an injury which could
not be compensated in costs by depriving him of a good defence to the claim.
In
L.J. Leach & Co. & Anr. v. Messrs Jardine Skinner & Co., AIR 1957
SC 357 another Bench comprising three learned Judges of this Court held that it
is no doubt true that courts would, as a rule, decline to allow amendments, if
a fresh suit on the amended claim would be barred by limitation on the date of
the application. But that is a factor to be taken into account in exercise of
the discretion as to whether amendment should be ordered, and does not affect
the power of the Court to order it, if that is required in the interests of
justice.
If
these principles are to be followed, there is little doubt that the learned
judge was in error in rejecting the application for amendment made by the
appellant. In the present case no fresh cause of action was sought to be
introduced by the amendment applied for. All that the appellant sought to do
was to complete the cause of action for specific performance for which relief
he had already prayed.
It was
only that one averment required in law to be made in a plaint in a suit for
specific performance in view of the provisions of sub-section (c) of section 16
of the Specific Relief Act was not made, probably on account of some oversight
or mistake of the lawyer who drafted the plaint and that error was sought to be
rectified by the amendment applied for. There was no fresh cause of action
sought to be introduced by the amendment and hence, no question of causing any
injustice to the respondent on that account arose.
Learned
counsel for the respondent placed strong reliance on the decision of this Court
in Ouseph Varghese v. Joseph Aley and Others, [1963] 2 SCC 539. In that case, a
suit for specific performance was filed by the plaintiff on the basis of an
alleged agreement with the first defendant.
The
defendant denied the agreement and went on to state that just before his death
her husband had agreed to sell to the plaintiff 478 Item No. 1 of the suit
property less one acre of paddy field for a sum of Rs. 11,000 but due to the
illness of her husband, the sale in question could not be effected. After the
written statement to this effect was filed, no application for amendment to the
plaint was made. The Trial Court decreed the suit. In the appeal, the High
Court did not accept the agreement pleaded by the plaintiff, but granted a
decree on the basis of the agreement set out in the written statement. It was held
by a Bench comprising two learned Judges of this Court that the agreement
pleaded by the defendant was wholly different from that pleaded by the
plaintiff. The plaintiff did not plead either in the plaint or at any
subsequent stage that he was ready and willing to perform the agreement pleaded
in the written statement and hence, no decree on the basis of that agreement
should have been passed in his favour as done by the High Court. The Court held
that it was well settled that in a suit for specific performance, the plaintiff
should allege that he is ready and willing to perform his part of the contract
and in the absence of such an allegation in the plaint, the suit is not
maintainable. In our opinion, this case does not lend any support to the
argument of the learned counsel for the respondent, as in the present case
there is no question of any decree being passed on the basis of any agreement
other than the one pleaded by the appellant in the plaint.
In the
result, the judgment and order passed by the learned Single Judge are set
aside. The appeal is allowed.
The
amendment applied for by the appellant is allowed. The amendment to be carried
out by the appellant at his own expense within eight weeks of a certified copy
of this order being received by the Trial Court. The Trial Court shall
thereafter give time to the respondent to file a supplementary written
statement, if so advised, and dispose of the case on merits according to law.
There will be no order as to costs of the appeal.
G.N.
Appeal allowed.
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