Civil P.C. (1908), O.6 R.17
– Specific Relief
Act (1963), S.22 – Limitation Act (1963),
Art.137 – Amendment of plaint – Limitation –
By way of amendment alternative relief of
possession is sought in suit for specific
performance – Contention that amendment
must be made within limitation – Relief of
possession is consequential to relief of specific
performance as per 1982 (1) SC 525 – Hence,
Art.137 has no application – Contention in this
regard is liable to be rejected.
Shashikant
Jagannath Powar Vs. Baburao Huvappa
Kurhade
2013(3) ALL MR 259
Specific Relief Act (1963), S.22
– Civil P.C.
(1908), O.6 R.17 – Amendment of plaint –
Amendment in suit for specific performance
to claim relief of possession alternatively – S.22
starts with non obstante clause stating
“notwithstanding anything contrary contained
in C.P.C.” – Proviso to S.22 states where
plaintiff has not claimed any relief in plaint,
Court shall at any stage of proceedings, allow
amendment of plaint – In view of non obstante
clause plaintiff who is seeking amendment
would not require to satisfy due diligence test
– Amendment made in O.6 R.17 CPC cannot
come in way of plaintiff seeking relief of
possession in view of mandate of S.22 of
Specific Relief Act – Relief of possession being
inherent in relief of specific performance –
Highly technical approach should not be
adopted – Rejection of application for
amendment by Trial Court is liable to be set
aside.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTIONWRIT PETITON NO.1329 of 2013
Shashikant Jagannath Powar : vs Baburao Huvappa Kurhade Deceased ... on 11 February, 2013
Bench: R. M. Savant
DATED :- 11th FEBRUARY, 2013.
1 Rule with the consent of the parties made returnable forthwith and H
heard.
2 The short question which arises for consideration in the above y
Petition is whether the Petitioner who has filed a Suit for specific ba
performance should be allowed to amend the plaint so as to claim the relief of possession albeit alternatively. om
3 The order impugned is one dated 18-1-2013 passed by the Learned 3rd Joint Civil Judge Senior Division, Kolhapur, by which order, the application for amendment of the plaint so as to claim the relief in the B
alternative for possession has been rejected. The said rejection as can be seen from the order is on the ground that the amendment cannot be allowed after the trial has begun. In view of the settled position in law as mmj 1/10 ::: Downloaded on - 25/02/2013 22:14:11 ::: wp-1329-13.sxw
enunciated by the Apex Court in the matter reported in 2009(4) MhLJ 30 in the matter of Vidyabai and others Vs. Padmalatha and another and in rt
the Judgment reported in AIR 2007 SC 806 in the matter of ou
Ajendraprasadji Pande Vs Swami Keshavprakashdasji N. & Ors. The Trial Court has rejected the said application also on the ground that the C
application for amendment of pleadings must be made within the period prescribed by Article 137 of the Limitation Act. The Trial Court has also h
observed that since the Plaintiff has claimed specific performance of the ig
contract and if the Court grants specific performance then the terms and conditions of the specific performance follow the decree. H
4 In the application in question i.e. Exhibit 136, the Plaintiff has stated that he would not be leading any evidence in respect of the said relief y
claim.
ba
5 The said application Exhibit 136 was opposed by the Defendants by filing their reply which was numbered as Exhibit 144. The objection to the om
application was on the ground that the Plaintiff was aware of the possession of the Defendants and though being aware had not moved the B
application with due diligence and therefore in view of the delay in filing the application the same could not be granted. The Defendants also adverted to another Suit filed by the Plaintiff being Regular Civil Suit mmj 2/10 ::: Downloaded on - 25/02/2013 22:14:11 ::: wp-1329-13.sxw
No.367 of 2007 which Suit has been filed by the Plaintiff for injunction and which was founded on the fact that the Plaintiff is in possession. In the said rt
suit an application for injunction filed by the Plaintiff came to be rejected ou
and it was held that the Defendants are in possession. The matter has reached this Court by way of Writ Petition No.2033 of 2008 which Writ C
Petition came to be dismissed by this Court by order dated 24-11-2008. It was therefore the case of the Defendants that the application as moved h
was also not bonafide and therefore ought not to be granted. As indicated ig
above, the said application has been rejected on the grounds which have been mentioned in the earlier part of this order. H
6 Heard the Learned Counsel for the parties. The Learned Counsel appearing for the Petitioner Mr. Borkar would contend that since the Suit y
in question has been filed by the plaintiff for specific performance, in terms ba
of Section 22 of the Specific Relief Act, the Plaintiff is entitled to amend the Suit so as to incorporate a prayer for possession. The Learned Counsel om
to buttress the said submission would rely upon the Judgment of the Apex Court reported in 1982(1) SC 525 in the matter of Babu Lal Vs. Hazari B
Lal Kishori Lal. The Apex Court in said case was concerned with Section 22 of the Specific Relief Act. The Apex Court has observed that by introduction of Section 22 by an amendment to the Specific Relief Act a mmj 3/10 ::: Downloaded on - 25/02/2013 22:14:11 ::: wp-1329-13.sxw
statutory provision has now been incorporated enabling the Plaintiff to ask for possession and in the suit for specific performance and empowering the rt
court to provide in the decree itself that upon payment by the plaintiff of ou
the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession. The Apex Court C
observed that the proviso to Sub Section (2) of Section 22 provides for amendment of the plaint on such terms as may be just for including a h
claim for such relief of possession at any stage of the proceeding. In view ig
of the said position, the Apex Court held that the amendment application could be allowed by the Executing Court as it has every jurisdiction to H
allow the amendment in terms of the Section 22 of the Specific Relief Act. The Learned Counsel for the Petitioner would therefore contend that y
though the Suit is at the stage where the evidence of the Defendant is to be ba
recorded the application for amendment could still be allowed, as the Plaintiff does not desire to lead any evidence in respect of the added prayer om
for possession.
7 Per contra the Learned Counsel for the Respondents i.e. the Original B
Defendants Mr. Bandiwadekar would contend that in view of what has transpired in another suit filed by the Plaintiff wherein injunction was refused to him the amendment application cannot be allowed at this stage. mmj 4/10 ::: Downloaded on - 25/02/2013 22:14:11 ::: wp-1329-13.sxw
The Learned Counsel would contend that though the Plaintiff was aware as long back as in the year 2007 that the Defendants are in possession no rt
steps were taken to amend the plaint and now after having lost upto this ou
court in the parallel proceedings which have been filed for injunction that the instant application has been filed. The Learned Counsel would contend C
that the amendment application having not been filed within the period prescribed by Article 137, the same cannot be granted. The Learned h
Counsel lastly contended that the test of due diligence has also not been ig
satisfied by the Plaintiff in the instant matter as there are absolutely no reasons mentioned as to why the amendment application could not be H
moved earlier.
8 Having heard the Learned Counsel for the parties I have bestowed y
my anxious consideration to the rival contentions. As indicated above, the ba
Suit in question is one filed for specific performance of the agreement dated 17-8-2004. In the said Suit a Written Statement has been filed by the om
Defendants wherein they have stated that they are in possession and that they have carried out excavation in the suit property. It seems that B
thereafter the Plaintiff has filed another Suit being Regular Civil Suit No.367 of 2007 for simplicitor injunction. In the said Suit, the application of the Plaintiff for temporary injunction came to be rejected, which was mmj 5/10 ::: Downloaded on - 25/02/2013 22:14:11 ::: wp-1329-13.sxw
confirmed by the Appellate Court and thereafter by this court in Writ Petition No.2033 of 2008. Therefore in so far as the aspect of possession is rt
concerned, there are orders passed which are against the Plaintiff. It is ou
possibly in the said context that the Plaintiff sought to amend the Plaint so as to incorporate a prayer for possession which the plaintiff claims as an C
alternative prayer, if ultimately it is founded that the Defendants are in possession. In the said context the Judgment of the Apex Court in Babu h
Lal's Case (Supra) on which much store has been laid by the Learned ig
Counsel for the Petitioner would have to be considered. The Apex Court was concerned with a case where the relief of possession was sought at the H
execution stage as the property had passed on to a third party purchaser who had put up a construction. It seems that in the said case a decree of y
specific performance was granted to the Plaintiff which was put in ba
execution and since there was no prayer for possession the Executing Court had rejected the same which was confirmed by the High Court. The Apex om
Court having regard to Section 22 of the Specific Relief Act held that the relief of possession is only consequential to the relief of specific B
performance. The Apex Court held that in view of Section 22 the Plaintiff would be entitled to the amendment of the Plaint even at the execution stage and in fact the relief of possession can be granted by the Executing mmj 6/10 ::: Downloaded on - 25/02/2013 22:14:11 ::: wp-1329-13.sxw
court though not prayed for. In my view, the said Judgment is relevant in the context of the relief sought by way of amendment. The instant Suit rt
being one for specific performance what the Plaintiff is seeking by way of ou
an amendment can be said to be inherent in the relief for specific performance if ultimately granted and that is what in fact the Trial Court C
has observed in the impugned order.
9 Now adverting to the submissions of Mr. Bandiwadekar that the h
application for amendment of pleadings ought to be filed within the period ig
prescribed by Article 137 and for which purpose he relies upon the Judgment of a Learned Single Judge of this Court reported in 2012 (2) H
MhLJ 106 in the matter of Harinarayan Vs. Vijay. In the said case, the subject matter of the amendment was not covered by any specific article y
and therefore the Learned Judge was of the view that the residuary Article ba
137 would be applicable and since in the said case the amendment application was not filed within three years of the cause for filing the same, om
the Learned Judge held that the said amendment application could not have been allowed having regard to the said Article 137. However, in the B
instant case as can be seen by way of amendment the alternative relief of possession is sought. In so far as possession is concerned, the said relief as held by the Apex Court would be consequential to the relief of specific mmj 7/10 ::: Downloaded on - 25/02/2013 22:14:11 ::: wp-1329-13.sxw
performance and therefore since the suit in question is for specific performance, the said Article 137 would have no application. Hence the rt
Judgment of the Learned Single Judge of this Court in Harinarayan's Case ou
(Supra) would have no application in the facts and circumstances of the present case.
C
The matter would have to be looked at from another angle in view of the submission made by the Learned Counsel appearing for the h
Respondents that the Plaintiff has not satisfied the due diligence test which ig
is now the sine-qua-non whilst considering an application for amendment of the pleadings, in view of the amendments to the Civil Procedure Code H
and especially Order 6 Rule 17 which have come into force in the year 2002. For the said purpose Section 22 of the Specific Relief Act would have y
to be revisited again. The said provision starts with a non obstante clause ba
and it is postulated in the said Section that notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), om
any person suing for specific performance of a contract for the transfer of immovable property may, in an appropriate case ask for possession or B
partition and separate possession and by clause (b) any other relief. By the proviso, it is postulated that where the Plaintiff has not claimed any such relief in the plaint the Court shall at any stage of the proceedings, allow mmj 8/10 ::: Downloaded on - 25/02/2013 22:14:11 ::: wp-1329-13.sxw
him to amend the plaint on such terms as may be just for including a claim for such relief, the relief contemplated by the proviso is therefore one of rt
possession. In view of the non obstante clause the Plaintiff who is seeking ou
an amendment in the Suit for specific performance which is filed by him so as to include the prayer for possession in an appropriate case would not be C
required to satisfy the due diligence test. As the Apex Court in Babulal's case (Supra) has held that the said relief can be asked even at the stage of h
execution and in fact in the said case has granted the relief of possession ig
when the matter was at the execution stage. In my view, therefore the amendment made in Order 6 Rule 17 cannot come in the way of the H
Plaintiff seeking relief of possession in view of the mandate of Section 22 of the Specific Relief Act. The said relief of possession being inherent in the y
relief for specific performance, the Apex Court in Babulal's case (Supra) ba
was of the view that a highly technical approach should be eschewed and an approach which furthers the cause of substantial justice should be om
adopted. In my view, therefore the Trial Court has erred in rejecting the application Exhibit 136 for amendment of the plaint and thereby has not B
exercised jurisdiction vested in it. The impugned order is therefore required to be quashed and set aside and is accordingly quashed and set aside, and the application Exhibit 136 is accordingly allowed. The mmj 9/10 ::: Downloaded on - 25/02/2013 22:14:12 ::: wp-1329-13.sxw
Petitioner would be entitled to amend the plaint in terms of the amendment sought within a period of four weeks from date the rt
Defendants would be entitled to file their additional Written Statement if ou
so advised within the time that would be stipulated by the Trial Court. In so far as the amended plaint is concerned, i.e. alternative relief of C
possession the contentions of the parties are kept open for being agitated in the Trial Court. The Trial Court to decide the Suit on its own merits and h
in accordance with law, uninfluenced by the observations if any in the ig
instant order. Since the Plaintiff has already made a statement in the application Exhibit 136 that he is not going to lead any evidence in respect H
of proposed amended portion, he would accordingly not be allowed to lead evidence in that respect.
y
10 Rule is accordingly made absolute in the aforesaid terms with parties ba
to bear their respective costs.
om
(R M SAVANT, J)
B
mmj 10/10 ::: Downloaded on - 25/02/2013 22:14:12 :::
it is confusing why the amendment can be allowed even if after the trial has begun
ReplyDelete