The plaintiff specifically stated that it was only due to an omission that he did not plead specifically in the plaint that he was ready and willing and continues to be ready and willing to perform his part of the contract. The question is whether in spite of due diligence, the plaintiff could have raised the matter before commencement of trial. The plaintiff stated in the affidavit in lieu of chief examination about his readiness and willingness to perform his part of the contract. An omission is something which is not made consciously. If it is made consciously, strictly speaking, it cannot be said that it is a bona fide omission. Sometimes, an omission could not be found out in spite of due diligence in prosecuting the litigation. Simply because the plaintiff omitted to mention something in the plaint, not deliberately, it cannot always be said that he was not acting with due diligence. The question whether the plaintiff acted with due diligence and whether he could have raised the matter before the commencement of trial, all depend on the facts and circumstances of each case. The fact that the plaintiff stated in evidence about the readiness and willingness would indicate that it was not a deliberate omission in the plaint, but an accidental omission.
21. Amendment of the plaint would relate back to the date of plaint. The Supreme Court has made it clear that in the facts and circumstances of each case, the Court can allow an amendment to be carried out in the plaint, though the relief in respect of the amendment was barred by limitation as on the date of the plaint. In the present case, the relief claimed is a relief for specific performance of an agreement for sale. By the amendment of the plaint, no other relief is sought to be introduced. An averment which is required to enable the plaintiff to get the relief pleaded in the plaint is sought to be incorporated by way of amendment. Therefore, it cannot be said that the claim put forward in the application for amendment is barred by limitation. The question to be considered is whether the relief for specific performance is barred by limitation. Evidently, it is not barred. A fact to be proved to enable the plaintiff to get the relief of specific performance can be added or incorporated even after the period of limitation. In such a case, the suit would not be barred as on the date of filing of the application for amendment. Therefore, there is no reason to accept the contention of the defendants that the application for amendment, if allowed, would have the effect of allowing the plaintiff to incorporate a relief in the plaint which is barred by limitation. For the aforesaid reasons, I am of the view that the court below was not justified in dismissing the application for amendment of the plaint. The order passed by the court below is set aside and the application for amendment of the plaint is allowed on condition that the plaintiff shall pay a sum of ` 1,500/- as costs to the defendants.
IN THE HIGH COURT OF KERALA
O.P.(C) No. 625 of 2010
Decided On: 28.10.2014
Mohanan Nair Vs. Premachandran Nair and Ors.
Hon'ble Judges/Coram:
K.T. Sankaran, J.
