Patna High Court
Kameshwarindra Guru vs Chattu Prasad Mahto on 12 April, 1983
Equivalent citations: 1984(32)BLJR170
JUDGMENT Satyabrata Sanyal, J.
1. This is an application under Section 115 of the Code of Civil Procedure by the defendant against an order dated 4.8.1980 by which the court below has allowed amendment of the plaint on the grounds, that it would not cause any injury to the defendant nor the amendment of the plaint changes the nature of the suit nor does it change the subject matter and the cause of action of the suit. The suit out of which this civil revision arises is a simple suit for specific performance of contract as disclosed by the plaint marked as Annexure-1.
2. The amendment sought for, as disclosed by the application for amendment, which is marked as Annexure-2 as follows:
6(a) That the defendant, in order to give effect to the aforesaid agreement, allowed the plaintiff to amalgamate the front yard (open space) of his residential house with the suit lands and thus the two amalgamated portions serve as a single frontage of the house of the plaintiff which is in his use and occupation.
The plaintiff/opposite party stated in the petition for amendment, that amendment sought will not change the nature of the suit or alter the character of the suit. It is further asserted that the amendment also do not introduce any new cause of action or raise a different case but an additional approach to the same facts to obtain the relief sought for in the original plaint.
3. The short facts of this case is that on 19.6.1975 the plaintiff/opposite party entered into an agreement with the defendant petitioner for sale of the scheduled property the consideration amount of the said contract was a sum of Rs. 4,400 and the agreement was reduced in writing on a stamped paper. The defendant promised to execute a registered sale deed in respect of the property in question by the month of October, 1975 and that he would not sell the property in question to any body else except to the plaintiff. It is said that Rs. 2500/- was paid as advance and the balance sum of Rs. 1900 out of the total consideration amount was agreed to be paid by the plaintiff to the defendant at the time of the execution and registration of the sale deed. The plaintiff thereafter, approached the defendant several times with the balance sum of Rs. 1900 for execution of the sale deed but in vain. Ultimately, the plaintiff demanded execution of the sale deed by a registered notice. But still the defendent evaded execution of the document in question and, therefore, the suit with a prayer that the plaintiff be declared to be entitled to get the sale deed executed and registered by the defendant in respect of the Schedule A property and in the event the defendant does not execute and register the sale deed by a particular date the same may be done by the agency of the Court on plaintiff's depositing in Court the balance of sum of Rs. 1900. Alternatively it was prayed that if it is found that the plaintiff is not entitled to specific performance of contract the advance money of Rs. 2500/- paid to the defendant with interest be ordered to be refunded to the plaintiff.
4. On perusal of the facts of the case, it would be found that it is a simple suit for specific performance of contract to enforce the agreement dated 19.6.1975. It is not worthy to mention that there is not even a whisper in the whole of the agreement that in part performance of the contract the plaintiff was ever put in possession of the disputed property.
5. Mr. S.B. Sinha learned Counsel appearing for the defendant petitioner contended that allowing the amendment would amount to totally alter the character of the suit in question and will cause irredeemable prejudice and injustice. In furtherance to the said argument, he contended that whereas a suit for specific performance is an equitable right which the Court may or may not grant it but the plaintiff in the garb of this amendment wants to introduce altogether a new and different right for the first time. In effect he is making this suit for part performance of contract as envisaged under Section 53A of the Transfer of Property Act (hereinafter to be referred to as the Act) which means that the defendant would be debarred from claiming any right in respect of the property of which the plaintiff alleges to have taken possession or in continuing in possession. He further contends that had there been some mention of giving of possession of the property in question to the plaintiff in the agreement in question the amendment could have followed the right created under that agreement.
6. In the instant case the right is not flowing from the agreement as the agreement is absolutely silent about it. The plaintiff by the amendment is trying to inforce a new right and a new case which cannot be allowed to be permitted.
7. Mr. V. Shivnath appearing for the plaintiff contended that in amendment of plaint this stage requires a liberal approach and it is now too late in the day to interfere with orders allowing amendment of the plaint. He submitted that in the suit only few witnesses have been examined. There is no prejudice caused to the defendant by the impugned order as he may be allowed to file additional written statement and he may if he so likes even cross-examine the witnesses afresh. In short he contended that if he can institute Kameshwarindra Guru v. Chattu Prasad Mahto (H.C.R.B.) a new suit on these facts it would be just and fair to exercise the discretion in favour of allowing the amendment and in support of his submission he relied on decisions in the case of (1981) SCC 652 Suraj Prakash Bhasin v. Smt. Raj Rani Bhasin and Ors. and in the case of 1966 Vol. 14 BLJR 346 : A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation.
8. I have given my considered thought over the matter and I feel that allowing amendment would be causing irredeemable prejudice and injustice inasmuch as the amendment sought for changes the very foundation of the suit originally instituted. The suit initially was a suit for specific performance of contract which is an equitable right and the Court may allow or may not allow the said relief in view of the provisions of Section 10 of the Specific Relief Act. By the amendment the plaintiff is making out a new case of part performance of contract and claims the suit property by way of necessary right. There is no whisper of this in the agreement and the amendment sought for does not follow from the agreement. The cases cited by the learned Counsel for the petitioner itself provide the guidelines and if I may say so with respect, in Suraj Prakash Bhasin's case (supra) it is said as follows:
...It is well known that amendments of pleadings are within the discretion of the Court although judicial discretion is not wild humour. Justice Cardoza with juristic accuracy and literary falicity, expressed exquisitely the Principles governing judicial discretion. The Judge even when he is free still not wholly free. He is not to innovate at pleasure. He is not knighterrant reaming at will in pursuit of his own ideal of beauty or of goodness....
In the said case it was further held that:
...the prayer for amendment even though should be given a liberal approach provided the amendment sought for do not totally alter the character of an action and while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendment that one distinct cause of action should not be substituted for another and that the subject-matter of the suit should not be changed by amendment.
9. In the case of A.K. Gupta and Sons (supra) it was held:
That the amendment should be allowed if the said amendment does not constitute addition of a new cause of action or raising a different case but amounting to a different or additional approach to the same facts....
It was further held:
...where on the same facts an additional approach is made the amendment should be allowed.
10. While dealing with this question of additional approach the Supreme Court clearly held:
No amendment will be allowed to introduce a new set of rights to the prejudice of any other right acquired by any party by lapse of time....
11. The only dispute between the parties in the instant case being the execution of the sale deed under the Specific Relief Act the claim of the plaintiff of possessory title flowing from Section 53A of the Act is altogether changing the nature of the suit to the great prejudice of the defendant.
12. I think in the instant case allowing the amendment would be addition of a new cause of action and raising of a different case and not an additional approach to the same facts. The fact of amalgamation was never pleaded before. This is a new fact which is sought to be introduced even though it was known to the plaintiff from before and he omitted to do so. To my mind it would amount to taking away a very valuable right of the defendant because by the original plaint he never claimed possessory title to the property and enforcement of Section 53A of the Act. impliedly the plaintiff has acquiesced the said right and allowing the amendment would be prejudicial to the defendant. It cannot be compensated by costs, Mr. V. Shivnath argued placing reliance in the case of 1979 BBCJ 11 Sri Ram Narayan Prasad v. Sri Seth Sao that this Court should not interfere with the order in its revisional jurisdiction. The argument of the learned Counsel is misconceived sic inasmuch as Court below exceeded in its jurisdiction to grant the impugned relief. The Court below has illegally acted in exercise of its jurisdiction to allow the amendment sought for because the amendment if allowed would cause irredeemable loss and injury to the defendant as it introduces new facts and new set of right and not an additional approach to the same facts and, therefore, a case for interference is made out. The argument of the learned Counsel of the opposite party that impugned order is not case decided is equally fallacious since after addition of the explanation to Section 115 of the Code of Civil Procedure a civil revision is maintainable against an order provided the other conditions of Section 115 of the Code are fulfilled.
13. In the result the present application is allowed and the order allowing amendment dated 4.8.1980 is set aside. There will, however, be no order as to costs.