As pointed out above, the plaintiff in
the said application has stated that in the belief that the
phrase "any other relief" in the prayer clause would
include this relief, he omitted to claim the said relief. It
cannot be said that this was not bona fide or that the
amendment application was filed with ulterior motive.
However the question is whether the provisos to Sub-
section (5) of Section 21 and Sub-section (2) of Section
22 of the Act leave no alternative to the Court but to
allow the amendment at any stage of the proceeding
irrespective of the fact that the reliefs for compensation
and refund of earnest money are barred on the day
when the amendment is sought, as submitted by Mr.
Deopujari. It will be convenient to reproduce Sections 21
and 22 of the Act to understand these submissions.
“21. (1) In a suit for specific performance of a
contract, the plaintiff may also claim compensation for
its breach, either in addition to, or in substitution of,
such performance.
(2) If, in any such suit, the Court decides that
specific performance ought not to be granted, but that
there is a contract between the parties which has been
broken by the defendant, and that the plaintiff is
entitled to compensation for that breach, it shall award
him such compensation accordingly.
(3) If, in any such suit, the court decides that
specific performance ought to be granted, but that it is
not sufficient to satisfy the justice of the case, and that
some compensation for breach of the contract should
also be made to the plaintiff, it shall award him, such
compensation accordingly.
(4) In determining the amount of any
compensation awarded under this section, the court
shall be guided by the principles specified in Section 73
of the Indian Contract Act. 1872.
(5) No compensation shall be awarded under this
section unless the plaintiff has claimed such
compensation in his plaint:
Provided that where the plaintiff has not claimed
any such compensation in the plaint the court shall at
any stage of the proceeding allow him to amend the
plaint on such terms as may be just, for including a
claim for such compensation.
Explanation: The circumstance that the contract
has become incapable of specific performance does not
preclude the court from exercising the jurisdiction
conferred by this section.
22. (1) Notwithstanding anything to the contrary
contained in the Code of Civil Procedure 1908, any
person suing for the specific performance of a contract
for the transfer of immoveable property may, in an
appropriate case, ask for-
(a) possession, or partition and separate
possession, of the property, in addition to such
performance ; or
(b) any other relief to which he may be entitled,
including the refund of any earnest, money or deposit
paid or made by him in case his claim for specific
performance is refused.
(2) No relief under Clause (a) or Clause (b) of Subsection
(1) shall be granted by the Court unless it has
been specifically claimed :
Provided that where the plaintiff has not claimed
any such relief in the plaint, the court .shall, at any
stage of the proceeding, allow him to amend the plaint
on such terms as may be just for including a claim for
such relief.
(3) The power of the court to grant relief under
Clause (b) of Sub-section (1) shall be without prejudice
to its powers to award compensation under Section 21.
Sub-sections (1), (2) and (3) of Section 21 of the
Act correspond to paras. 1, 2 and 3 of Section 19 of the
Specific Relief Act, 1877 and Sub-sections (4) and (5) of
Section 21 of the Act are newly added. It appears that
there was no provision corresponding to Section 22 in
the Act of 1877 and this section is a new addition to the
provisions on the subject of specific relief. It is obvious
that Sub-sections (4) and (5) of Section 21 and the
whole of Section 22 have been introduced in the Act in
order to avoid multiplicity of suits and proceedings.
Section 21 and 22 enact a rule of pleading. The only
question which falls for consideration is whether in
enacting the provisos to Sub-section (5) of Section 21
and Sub-section (2) of Section 22 the Legislature
intended to cast a duty on the Court to permit the
amendment contemplated therein without leaving any
discretion to it. This is more so because of the word
"shall" having been used in both these provisos.
7. Obviously these two provisos deal with the
question of permitting the plaintiff to amend his plaint.
It is not as if in the absence of these provisos a plaintiff
would not have been permitted to carry out an
amendment in his pleading by introducing a relief for
compensation and refund of earnest money. Rule 17 of
Order VI of the Code of Civil Procedure (hereinafter
referred to as "the Code") does confer power on a Court
to allow a party to alter or amend his pleading in such
manner and on such terms as may be just. This rule
does not stop at that, but it further says that all such
amendment should be made as may be necessary for
the purpose of determining the real question in
controversy between the parties. It is pertinent to note
that this provision which empowers the Court in its
discretion to permit a party to amend his pleadings,
was already on the statute book when the Specific
Relief Act, 1963 was enacted. It can, therefore, be
presumed that when the latter legislation was on the
anvil the Parliament was aware of this power of the
Court to permit amendment of pleadings. It cannot be
successfully urged that a suit for specific performance
falling under the provisions of the said Act would not be
governed by the provisions of the Code of Civil
Procedure. It is, therefore, clear that to such a suit the
provisions contained in Order VI, Rule 17 of the Code
would apply and a plaintiff who has earlier failed to
incorporate the reliefs for compensation and refund of
earnest money could seek the permission of Court to
introduce these reliefs by way of amendment. If the
legislature intended that allowing such amendment
should be left to the discretion of the Court, it would not
have enacted the provisos to Sub-section (5) of Section
21 and Sub-section (2) of Section 22. It is well-known
that the legislature normally does not enact a
superfluous provision. It is therefore not possible to say
that by enacting these two provisos the legislature once
again wanted to invest the Court with discretionary
power of permitting amendment of pleadings which
power already existed under Order VI, Rule 17 of the
Code. This gives a clue to the intention of the legislature
in enacting the two provisos and particularly using the
word "shall" in both of them. In the context which I
have stated above, it appears clearly to me that the
legislature did not intend merely to confer
discretionary power on the Court to permit a plaintiff
to amend his pleading to introduce these two reliefs at
any stage of proceeding, but it intended to make it
obligatory and imperative on the Court to allow such
amendment. As I have said above, the very idea in
enacting Sub-sections (4) and (5) of Section 21 and
Section 22 including Sub-section (2) thereof was to
avoid and do away with the multiplicity of litigation. In
my view, therefore, these two provisos do not merely
confer discretionary power on the Court, but they make
it obligatory on the Court to permit such amendments
which come within their purview.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9713 OF 2016
Madhav Housing Private Limited Vs Suchita Baburao Chavan
CORAM : K.K. TATED, J.
DATE : 28 FEBRUARY 2019.
Heard learned Counsel for parties.
2. By consent of both the parties, matter is taken on
board for final hearing at the stage of admission.
3. By this writ petition under Article 227 of the
Constitution of India petitioner/original plaintiff is challenging the
order dated 12.07.2016 passed by the Court below Exhibit-28 in
Special Civil Suit No.336 of 2014 rejecting plaintiff's application
for carrying out amendment in the plaint.
4. Learned Counsel for petitioner submits that in the
present proceedings they have filed Special Civil Suit No.336 of
2014 before learned Civil Judge, Senior Division, Nashik for
specific performance of contract. He submits that at the time of
filing plaint it remain on their part to make appropriate
alternative prayer for damages. Hence, plaintiff has filed
application under Order 6 Rule 17 of Civil Procedure Code, 1908
on 25.02.2016. That application was rejected by the trial Court
only on the ground that petitioner/original plaintiff was not due
diligent at the time of filing a suit. He submits that trial Court also
specifically recorded in the order that, trial of suit was not started.
In spite of that, the trial Court rejected their application under
Order 6 Rule 17 of Civil Procedure Code, 1908.
5. The learned Counsel for petitioner submits that as per
Sections 21(5) and 22(2) of Specific Relief Act, 1963 they have to
make specific prayer for damages. Sections 21(5) and 22(2) of
Specific Relief Act, 1963 reads thus :-
“21 (5) No compensation shall be awarded
under this section unless the plaintiff has
claimed such compensation in his plaint:
Provided that where the plaintiff has
not claimed any such compensation in the
plaint the Court shall at any stage of the
proceeding, allow him to amend the plaint
on such terms as may be just, for including a
claim for such compensation.
Explanation: The Circumstance that the
contract has become in-capable of specific
performance does not preclude the Court
from exercising the jurisdiction conferred by
this section.
22 (2) No relief under clause (a) or
clause (b) of sub-section (1) shall be granted
by the Court unless it has been specifically
claimed:
Provided that where the plaintiff has
not claimed any such relief in the plaint, the
Court shall, at any stage of the proceeding,
allow him to amend the plaint on such terms
as may be just for including a claim for such
relief.”
6. The learned Counsel for the petitioner submits that in
view of Section 21 and 22 of the Specific Relief Act and under
Order 6 Rule 17 of Civil Procedure Code, plaintiff filed the
application for carrying out amendment to claim damages in
alternative to the main prayer. He submits that the trial Court
instead of deciding their application on merits, dismissed the
application only on technical ground of due diligence. The learned
Counsel for the petitioner submits that there is no question of
delay on the part of the petitioner to make the application for
carrying out amendment. He submits that our High Court in the
matter of Manohar Dhundiraj Joshi Vs. Jhunnulal Hariram
Yadao and Others 1983 0 MhLJ 369 held that in the case of Specific Relief Act in
view of Section 21 and 22 of the said Act amendment can be
allowed to claim in alternative damages. He relies on paragraph 5
and 7 of the said authority which reads thus :
“5. It is not disputed before me that on the day when
the application for amendment to the plaint was made,
the claim for compensation and refund of earnest
money would have been barred by limitation. This Court
in (Parbhudas v. Lallubhai)1, (Bai Kamala v.
Shankarrao)2, and (Chunttal v. Abdul Dawood)3 and
the Privy Council in (Bhagwanji v. Alembic Chemical
Works)4 have held that an amendment of plaint
introducing a new claim which would have been barred
by limitation at the time when the leave was sought
cannot be allowed, unless there are exceptional
circumstances. However, in (A.K. Gupta & Sons Ltd. v.
Damodar Valley Corporation)5, the Supreme Court has
laid down that as a general rule a party is not allowed by
amendment to set up a new case or new cause of action,
particularly when the suit on the new cause of action is
barred. But at the same time the Supreme Court has
further held that where the amendment does not
constitute the addition of a new cause of action or raise
a different case, but amounts merely to a different or
additional approach to the same facts, the amendment
would be allowed even after expiry of the statutory
period of limitation. In laying down this rule the
Supreme Court has observed as follows (at page 98):
“(8) The principal reasons that have led to the
rule last mentioned are, first, that the object of Courts
and rules of procedure is to decide the rights of the
parties and not to punish them for their mistake
Cropper v. Smith6 and secondly, that a party is strictly
not entitled to rely on the statute of limitation when
what is sought to be brought in by the amendment can
be said in substance to be already in the pleading sought
to be amended (Kisandas Rupchand v. Rachappa
Vithoba)7, (approved in Pirgonda Hongontla Patil v.
Kalgonda Sttidgonda)8.
(9) The expression "cause of action'' in the
present context does not mean'' "every lad which it is
material to be proved to entitle the plaintiff to succeed"
as was said in Cooke v. Gill9, in a different context, for if
it were so, no material tact could ever be amended or
added and, of course, no one would want to change or
add an immaterial allegation by amendment. That
expression for tile present purpose only means, a new
claim made on a new basis constituted by new facts.
Such a view was taken in Robinson v. Unicos Property
Corporation Ltd.10, and it seems to us to be the only
possible view to take. Any other view would make the
rule futile. The words "new case" have been understood
to mean "new set of ideas"; Dornan v. J.W. Ellis and Co.
Ltd.11. This also seems to us to on reasonable view to
take. No amendment will be allowed to introduce a new
set of ideas to the prejudice of any right acquired by any
party by laspe of time.
The question now therefore arises is whether by
seeking to include the relief for compensation and
refund of earnest money the plaintiff was trying to set
up a new case or new cause of action or it amounted
merely to a different or additional approach to the same
facts, A look at the application for amendment would
show that the plaintiff wanted to introduce para 7(a) in
the plaint, in which he states certain facts on which the
claim for compensation is based. Obviously these facts
were not in the plaint and in the absence of these facts
the plaintiff would not have been entitled to the relief at
least for compensation. Hence in so far as the additional
relief for compensation is concerned, it has to be said
that the plaintiff introduced a new case or a new cause
of action as contemplated by the Supreme Court in
Gupta's case (supra). Since this relief was barred by
limitation the plaintiff would not have been allowed to
amend the plaint to introduce it. However, the same
could not be said with regard to the refund of earnest
money. In that respect no new facts or new cause of
action was being set up by the plaintiff and this relief is
being sought to be introduced in the plaint only as an
alternative relief to the relief for specific performance
for which the suit had been filed. Normally the plaintiff
in a suit for specific performance would be entitled to
refund of earnest money, if the relief for specific
performance is refused since this is just and equitable.
Hence applying the principle in Gupta's case (supra) it
would not be possible to say that the amendment with
regard to the inclusion of relief for refund of earnest
money could have been refused solely on the ground
that the said relief was barred by limitation on the day
when the amendment was sought. It is not possible to
uphold the submission of Mr. Ghate that the application
was not bona fide. As pointed out above, the plaintiff in
the said application has stated that in the belief that the
phrase "any other relief" in the prayer clause would
include this relief, he omitted to claim the said relief. It
cannot be said that this was not bona fide or that the
amendment application was filed with ulterior motive.
However the question is whether the provisos to Sub-
section (5) of Section 21 and Sub-section (2) of Section
22 of the Act leave no alternative to the Court but to
allow the amendment at any stage of the proceeding
irrespective of the fact that the reliefs for compensation
and refund of earnest money are barred on the day
when the amendment is sought, as submitted by Mr.
Deopujari. It will be convenient to reproduce Sections 21
and 22 of the Act to understand these submissions.
“21. (1) In a suit for specific performance of a
contract, the plaintiff may also claim compensation for
its breach, either in addition to, or in substitution of,
such performance.
(2) If, in any such suit, the Court decides that
specific performance ought not to be granted, but that
there is a contract between the parties which has been
broken by the defendant, and that the plaintiff is
entitled to compensation for that breach, it shall award
him such compensation accordingly.
(3) If, in any such suit, the court decides that
specific performance ought to be granted, but that it is
not sufficient to satisfy the justice of the case, and that
some compensation for breach of the contract should
also be made to the plaintiff, it shall award him, such
compensation accordingly.
(4) In determining the amount of any
compensation awarded under this section, the court
shall be guided by the principles specified in Section 73
of the Indian Contract Act. 1872.
(5) No compensation shall be awarded under this
section unless the plaintiff has claimed such
compensation in his plaint:
Provided that where the plaintiff has not claimed
any such compensation in the plaint the court shall at
any stage of the proceeding allow him to amend the
plaint on such terms as may be just, for including a
claim for such compensation.
Explanation: The circumstance that the contract
has become incapable of specific performance does not
preclude the court from exercising the jurisdiction
conferred by this section.
22. (1) Notwithstanding anything to the contrary
contained in the Code of Civil Procedure 1908, any
person suing for the specific performance of a contract
for the transfer of immoveable property may, in an
appropriate case, ask for-
(a) possession, or partition and separate
possession, of the property, in addition to such
performance ; or
(b) any other relief to which he may be entitled,
including the refund of any earnest, money or deposit
paid or made by him in case his claim for specific
performance is refused.
(2) No relief under Clause (a) or Clause (b) of Subsection
(1) shall be granted by the Court unless it has
been specifically claimed :
Provided that where the plaintiff has not claimed
any such relief in the plaint, the court .shall, at any
stage of the proceeding, allow him to amend the plaint
on such terms as may be just for including a claim for
such relief.
(3) The power of the court to grant relief under
Clause (b) of Sub-section (1) shall be without prejudice
to its powers to award compensation under Section 21.
Sub-sections (1), (2) and (3) of Section 21 of the
Act correspond to paras. 1, 2 and 3 of Section 19 of the
Specific Relief Act, 1877 and Sub-sections (4) and (5) of
Section 21 of the Act are newly added. It appears that
there was no provision corresponding to Section 22 in
the Act of 1877 and this section is a new addition to the
provisions on the subject of specific relief. It is obvious
that Sub-sections (4) and (5) of Section 21 and the
whole of Section 22 have been introduced in the Act in
order to avoid multiplicity of suits and proceedings.
Section 21 and 22 enact a rule of pleading. The only
question which falls for consideration is whether in
enacting the provisos to Sub-section (5) of Section 21
and Sub-section (2) of Section 22 the Legislature
intended to cast a duty on the Court to permit the
amendment contemplated therein without leaving any
discretion to it. This is more so because of the word
"shall" having been used in both these provisos.
7. Obviously these two provisos deal with the
question of permitting the plaintiff to amend his plaint.
It is not as if in the absence of these provisos a plaintiff
would not have been permitted to carry out an
amendment in his pleading by introducing a relief for
compensation and refund of earnest money. Rule 17 of
Order VI of the Code of Civil Procedure (hereinafter
referred to as "the Code") does confer power on a Court
to allow a party to alter or amend his pleading in such
manner and on such terms as may be just. This rule
does not stop at that, but it further says that all such
amendment should be made as may be necessary for
the purpose of determining the real question in
controversy between the parties. It is pertinent to note
that this provision which empowers the Court in its
discretion to permit a party to amend his pleadings,
was already on the statute book when the Specific
Relief Act, 1963 was enacted. It can, therefore, be
presumed that when the latter legislation was on the
anvil the Parliament was aware of this power of the
Court to permit amendment of pleadings. It cannot be
successfully urged that a suit for specific performance
falling under the provisions of the said Act would not be
governed by the provisions of the Code of Civil
Procedure. It is, therefore, clear that to such a suit the
provisions contained in Order VI, Rule 17 of the Code
would apply and a plaintiff who has earlier failed to
incorporate the reliefs for compensation and refund of
earnest money could seek the permission of Court to
introduce these reliefs by way of amendment. If the
legislature intended that allowing such amendment
should be left to the discretion of the Court, it would not
have enacted the provisos to Sub-section (5) of Section
21 and Sub-section (2) of Section 22. It is well-known
that the legislature normally does not enact a
superfluous provision. It is therefore not possible to say
that by enacting these two provisos the legislature once
again wanted to invest the Court with discretionary
power of permitting amendment of pleadings which
power already existed under Order VI, Rule 17 of the
Code. This gives a clue to the intention of the legislature
in enacting the two provisos and particularly using the
word "shall" in both of them. In the context which I
have stated above, it appears clearly to me that the
legislature did not intend merely to confer
discretionary power on the Court to permit a plaintiff
to amend his pleading to introduce these two reliefs at
any stage of proceeding, but it intended to make it
obligatory and imperative on the Court to allow such
amendment. As I have said above, the very idea in
enacting Sub-sections (4) and (5) of Section 21 and
Section 22 including Sub-section (2) thereof was to
avoid and do away with the multiplicity of litigation. In
my view, therefore, these two provisos do not merely
confer discretionary power on the Court, but they make
it obligatory on the Court to permit such amendments
which come within their purview.”
7. The learned Counsel for petitioner also relies on a
judgment in the matter of Vidyabai and Others Vs. Padmalatha
and Another2. In this case, the Apex Court held that if trial is not
begin, the Court can consider the application for carrying out
amendment. On the basis of this authority and the submissions
made by learned Counsel for the petitioner, he submits that this
Hon'ble Court be pleased to set aside the impugned order dated
12.07.2016 and allow the petitioner's application below Exhibit-28
under Order 6 Rule 17 of Civil Procedure Code, 1908. He submits
that if this writ petition is not allowed irreparable loss will cause
to the petitioner. He further submits that because of amendment,
cause of action is not going to be changed in the original suit.
8. On the other hand, the learned Counsel appearing on
behalf of respondent/original defendant vehemently opposed the
present writ petition. He submits that in view of Order 2 Rule 2
and 3 of Civil Procedure Code, 1908 there is no question of
allowing the application filed by the plaintiff for carrying out
amendment. He submits that bare reading of the plaint and the
Order 2 Rule 2 and 3 of Civil Procedure Code shows that plaintiff
2 (2009) 2 SCC 409
has relinquished the part of his claim. Therefore, that cannot be
permitted. Hence, there is no question of allowing the plaintiff to
carry out amendment in the plaint. Hence, the trial Court has
rejected the petitioner's application to carry out the amendment
on the ground of due diligence. Hence, there is no substance in the
present writ petition and same to be dismissed with cost.
9. I heard both the sides at length. It is to be noted that
in the present proceedings, plaintiff has filed suit for Specific
Performance. It remain on their part to make the prayer for
damages in alternative to the main prayer before commencement
of trial. Amendment is not going to change the nature of suit.
10. Considering the submissions made by learned Counsel
for the petitioner and judgment of this Court in the matter of
Manohar Dhundiraj Joshi (Supra), I am of the opinion that
petitioner has made out case for allowing this Writ petition. Hence,
following order :-
a) Order dated 12.07.2016 passed by the learned
Civil Judge, Senior Division, Nashik below Exhibit-28 in
Special Civil Suit No.336 of 2014 is set aside.
b) The application filed by the petitioner/original
plaintiff below Exhibit-28 under Order 6 Rule 17 of Civil
Procedure Code, 1908 is allowed.
c) Petitioner/original plaintiff is permitted to carry
out amendment in the plaint as per application below
Exhibit-28 on or before 30.04.2019 and serve the amended
copy of plaint on other side.
d) Liberty granted to the defendant, if they so
desire, to file their additional written statement if any with
copy to other side on or before 15.06.2019.
e) Writ petition is allowed accordingly.
f) No order as to costs.
(K.K. TATED, J.)
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