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PETITIONER: GAJANAN JAIKISHAN JOSHI

       Vs.

RESPONDENT: PRABHAKAR MOHANLAL KALWAR

DATE OF JUDGMENT13/12/1989

BENCH: VENKATARAMIAH, E.S. (CJ) BENCH: 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.

HEADNOTE:     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  regis- tered  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  dis- missed.  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

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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  limita- tion 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-sec- tion (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.

JUDGMENT:     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 contro- versy 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  com- prising 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  maintain- able 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

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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  peti- tion  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 grant- ed 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.  Kal- gonda  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 plead- ing  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 depriv- ing 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  limita- tion 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 appel- lant  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  over- sight  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  caus- ing any injustice to the respondent on that account arose.     Learned  counsel for the respondent placed strong  reli- ance  on  the decision of this Court in Ouseph  Varghese  v.

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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  hus- band, 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  de- creed 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  state- ment.  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  supplemen- tary  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. 479