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CASE NO.: Appeal (civil)  7484-85 of 2004

PETITIONER: Raj Kumar

RESPONDENT: Dipender Kaur Sethi

DATE OF JUDGMENT: 19/11/2004

BENCH: Shivaraj V. Patil & B.N. Srikrishna

JUDGMENT: J U D G M E N T

(Arising out of SLP(C) NOS..2382-2383 OF 2004

       Leave granted.

       These appeals are directed against the orders of the High Court of  Punjab and Haryana dated 30.10.2002 dismissing the civil revision  application no. 1837 of 1995 and the order dated 22.8.2003 in C.M.  No.10021-CII of 2003 declining to recall the said order.

       On 21.12.1989 the respondent agreed to sell certain property to the  plaintiff at certain consideration. Certain amount was also received by the  first respondent as earnest money. On 20.3.90 the appellant filed a suit for  permanent injunction against the respondent-defendant in which temporary  injunction was sought to restrain the respondent-defendant from alienating  the suit property until further orders.  It was urged by the defendant that a  suit for permanent injunction was not maintainable  and the plaintiff  can  seek redress under the Specific   Relief Act for specific performance.  On  3.10.1991 the appellant moved an application under Order 6 Rule 17 read  with section 115 of CPC for making appropriate amendments in the plaint to  convert it into a suit for specific performance of the agreement to sell dated  21.12.1989.  This application was allowed on 29.2.1992 despite objections  made by the respondent.   The amendment was permitted and carried out.   The appellant thereafter paid the requisite court fee and filed an amended  plaint. Unfortunately, for the appellant, however, perhaps due to negligence  of the draftsman of the plaint, the necessary pleading, that the plaintiff was  still ready and willing to perform his part of the contract  in terms of the  agreement, was inadvertently omitted even in the amended plaint.   

On 10th  June 1992 the respondent filed an application under section  151 of the CPC Order 7 Rule 11 and sought an order to reject the amended  plaint.  By an order dated 18.5.93 the trial court disposed of the said  application by directing the appellant-plaintiff to file an amended plaint only  after carrying out amendment in the relief clause "after taking the plea  regarding the fact that he has been ready and willing to perform his part of  the contract". The trial court also directed  the plaintiff to comply with this  order by 30.5.1993 failing which the provisions of Order 7 Rule 11 CPC  shall be invoked  against him. The appellant thereafter filed the amended  plaint in compliance with the said order.   The respondent-defendant challenged the order of the trial court dated  18.5.93 by a civil writ petition \026 CR No.2214 of 1993 which was disposed of  by an order made on 15.8.1993 giving liberty to the appellant to make  appropriate application to the trial court.  On 5.3.1994 the appellant filed an  application under Order 6 Rule 17 CPC read with Section 151 CPC for  amendment of plaint and thereby to add inter alia para 5A which reads as

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follows: "\005that the plaintiff has always been and is still ready  and willing to perform his part of contract in terms of  the said agreement, but the defendant has failed to  perform per part of the contract."

       This was objected to by the respondents.  On 9.2.1995 the trial court  allowed the amendment  as prayed for after finding that the amendment of  adding para no.5A  did not change the original controversy between the  parties since the nature of the suit would remain the same. This order of the  trial court was challenged by a revision petition before the High Court.  The  revision petition was allowed by order dated 30.10.2002.  A miscellaneous   petition for recalling that order was dismissed on August 22, 2003.         The High Court in the order dated 30.10.2002 rightly points out that  the first application for converting the suit for injunction into a suit for  specific performance had not been objected to.  Consequently, when the said  amendment was allowed, the suit became one for specific performance.  Undoubtedly, the said suit was filed within the period of limitation.  It is  only the inadvertence of the draftsman in not making the material averment  which was sought to be rectified by seeking the 2nd amendment of adding  para 5A. The ground on which the second amendment application was  objected to was that the period of limitation for filing a suit for specific  performance was 3 years; the agreement to sell was dated December 21,  1989 and the concerned amendment introducing para 5A was filed on  December 3, 1994, was much beyond the period of limitation.  

The learned counsel for the appellant have reiterated the contentions  which were urged before the High Court. The learned counsel also placed on  record a judgment of this Court in Gajanan Jaikishan Joshi vs. Prabhakar  Mohanlal Kalwas  (1990) 1 SCC 166 which also pertains to a suit for  specific performance in which the averments required under Section 165 (c)  of  the Specific Relief Act, 1963, had  been inadvertently omitted while  drafting the plaint. The application was made for amending the plaint to  bring this averment on record. This Court pointed out that, thereby  no fresh  cause of action was introduced and, hence, there was no question of causing  any injustice to the respondents on that account.  Reiterating  the principle  laid down in Pirgonda Hongonda Patil v.  Kalgonda Shidgonda Patil AIR  1957 SC 363, it was held by this Court that all amendments ought to be  allowed which 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.  It was further observed:  

"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 our view, therefore, the trial court was justified in permitting the  second amendment and the High Court  was not right in allowing the  revision petition  thereagainst  for the reason  that  the  suit  had  already   been  converted  into a suit under the Specific Relief Act within the period of  limitation and, thereafter, it is only the missing averment which was  introduced by para 5A. There was no question of not complying the law of  limitation, as far as the 2nd amended plaint was concerned.  The High Court  was also not justified in not recalling the order.  

       Learned counsel for the respondent heavily relied on the judgment of

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this Court in Gurdial Singh & Ors. vs. Raj Kuamr Aneja and Ors. JT 2002  (1) SC 633.     Having perused the said judgment with the help of learned  counsel for the respondent, we find there nothing which would be of  assistance in deciding this case; nor is there anything apart from indicating  the procedure for amendments.          In the result, we are of the view that the impugned judgment and  order of the High Court are erroneous and need to be set aside.  The appeals  are allowed and the impugned judgment of the High Court dated 30.10.2002  and the Order dated  22.8.2003 are both set aside.   The trial court’s order  dated 9.2.1995 is restored.  The appeals are accordingly allowed with no  orders as to costs.