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.
