Madras High Court
K.Ganapathy vs M/S.Sakthi Sugar Limited on 27 July, 2012
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:27.07.2012 CORAM: THE HONOURABLE Mr. JUSTICE M.VENUGOPAL C.R.P.PD.No.1067 of 2010 and M.P.No.1 of 2010 K.Ganapathy ... Petitioner/Respondent/Defendant Vs. M/s.Sakthi Sugar Limited, Unit-4, rep. By General Manager, Alburt Som Saikumar, S/o.Rathinasabapathy, Off.Poonthurai Road, Semur, Erode Taluk. ... Respondent/Petitioner/Plaintiff Prayer: Petition filed under Article 227 of the Constitution of India, against the order passed in I.A.No.1213 of 2009 in O.S.No.207 of 2008 dated 11.02.2010 on the file of the Principal Sub Judge, Erode. For Petitioner : Mr.V.S.Kesavan For Respondent : Mr.A.K.Kumarasamy ORDER
The Petitioner/Defendant has preferred the present Civil Revision Petition as against the order dated 11.02.2010 in I.A.No.1213 of 2009 in O.S.No.207 of 2008 passed by the Learned Principal Sub Judge, Erode, in allowing the amendment application [filed under Order 6 Rule 17 of Civil Procedure Code praying permission of the Court to amend the Plaint].
2.The Learned Principal Sub Judge, Erode, while passing the order in I.A.No.1213 of 2009 on 11.02.2010, has, inter alia, held that 'the Revision Petitioner/Respondent (Defendant) has violated the contract and it is not correct to state that separate suit has to be filed because of the reason that the right to claim damages in the plaint and to seek necessary amendment the Respondent/Plaintiff has got right' and viewed in that perspective, allowed the application without costs.
3.Being dissatisfied against the order of the trial Court in I.A.No.1213 of 2009 dated 11.02.2010 in allowing the application filed by the Respondent/Petitioner/Plaintiff under Order 6 Rule 17 of C.P.C., the Revision Petitioner/Defendant has projected the instant Civil Revision Petition before this Court.
4.The Learned Counsel for the Petitioner/Defendant vehemently contends that the proposed amendment sought for by the Respondent/ Plaintiff in I.A.No.1213 of 2009 to claim damages will alter the nature and character of the suit and also that the said amendment is barred by Law of Limitation.
5.Advancing his arguments, the Learned Counsel for the Petitioner/Defendant submits that even on the date of filing of the suit by the Respondent/Plaintiff, the Petitioner/Defendant has harvested the sugarcane crop on 28.04.2008, but failed to take any steps to modify the relief and after 1 = years the present amendment to amend the plaint has been sought for, which is highly belated and the same is impermissible in law.
6.Lastly, it is the contention of the Learned Counsel for the Petitioner/Defendant that the present amendment sought for in the interlocutory application will alter the nature and character of the suit by introducing a new/fresh cause of action which is not legally sustainable in law.
7.Conversely, it is the submission of the Learned Counsel for the Respondent/Plaintiff that the Respondent/Plaintiff has filed a suit against the Revision Petitioner/Defendant originally seeking the relief of specific performance, praying for the relief of appointment of a Receiver and for granting the relief of permanent injunction.
8.The Revision Petitioner/Defendant has filed a detailed written statement inter alia stating that there is no cause of action for the Respondent/Plaintiff to file the suit and also that there is no standing crop in the field for harvest and that the calculations made by the Respondent/Plaintiff are imaginary one.
9.It transpires that the Respondent/Plaintiff has filed I.A.No.1213 of 2009 under Order 6 Rule 17 of Civil Procedure Code seeking permission of the trial Court to amend the Plaint, seeking damages of Rs.53,000/- with subsequent interest at 12% per annum from the date of suit till the date of realisation.
10.A perusal of the contents of the affidavit in I.A.No.1213 of 2009 shows that the Respondent/Plaintiff set out in detail, the damages sought for by him from the Revision Petitioner/Defendant and he has estimated the loss/damages at Rs.53,000/-.
11.A counter has been filed by the Revision Petitioner/Defendant among other things mentioning that there is no Court order restraining the Revision Petitioner/Defendant/Respondent for cutting the sugarcane crop and further that he is an Agriculturist and that he has not violated any contract and therefore, not liable to pay any damages.
12.In short, the Revision Petitioner/Defendant has taken a plea that the damage sought for by the Respondent/Plaintiff is to be assessed by means of filing a separate/independent suit and inasmuch as the suit filed by the Respondent/Plaintiff is only for specific performance, the damage cannot be claimed in the suit.
13.The Learned Counsel for the Respondent/Plaintiff informs this Court that the suit is pre-trial stage and no issues have been framed and further, in law, there is no impediment for the Respondent/Plaintiff to file the amendment application in accordance with Order 6 Rule 17 of Civil Procedure Code. As stated already, the Respondent/Plaintiff has sought the relief of specific performance in the main suit, praying for the appointment of a Receiver and also the relief of permanent injunction. Subsequently, the Respondent/Plaintiff filed I.A.No.1213 of 2009 claiming damages at a sum of Rs.53,000/- from the Revision Petitioner/Defendant.
14.The amendment sought for by the Respondent/Plaintiff in I.A.No.1213 of 2009 claiming damages by giving up the plea of specific performance is maintainable in law as per Section 21 of the Specific Relief Act, 1963 which enjoins that '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.' Also, by virtue of Section 21(2) of the Specific Relief Act, 1963, the Court is empowered to award compensation/damages, in case, it comes to the conclusion that specific performance ought not to be granted, when the contract between the parties has been broken by the Defendant.
15.A Plaintiff is entitled to claim damages/compensation and the Court is also empowered to grant the same on proper adjudication of the merits of the matter in issue. Further, in a suit for specific performance amendment of plaint claiming compensation/damages in lieu of specific performance can be allowed.
16.A pre-trial amendment can be allowed by a Court of law liberally by adopting a pragmatic, common sense, practical, a purposeful and a rational approach. Generally, an amendment ought not to be with an oblique motive to defeat the right of the party or to delay the proceedings in any fashion.
17.An amendment in pleading can be allowed at any stage a Court of Law has discretion to allow the amendment in the interest of justice. The words 'at any stage' means at any stage before the Judgment is pronounced, as opined by this Court.
18.By seeking the amendment viz., claiming damages at Rs.53,000/-, the Respondent/Plaintiff has given up his earlier prayer for the relief of specific performance etc. The amendment claiming damages has sought for by the Respondent/Plaintiff does not introduce any new cause of action. The amendment has been necessitated because of the simple fact that the Revision Petitioner/Defendant has sold the harvested sugarcane and sold it to third parties, thereby violated the spirit and tenor of the contract entered into between the parties. Equally, it cannot be said that by claiming the relief of damages, instead of the relief of specific performance, is not in variance with the relief already sought for. Viewed in that perspective, the Civil Revision Petition fails for the reason that the trial Court has rightly allowed I.A.No.1213 of 2009 and in dealing with the amendment application, ordinarily, a Court of Law is not supposed to go into the merits and demerits of the case. Per contra, the amendment sought for by the Respondent/Plaintiff is only to secure the cause of justice.
19.In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. The order passed by the trial Court viz., Principal Sub Judge, Erode in I.A.No.1213 of 2009 in O.S.No.207 of 2008 dated 11.02.2010 is affirmed by this Court for the reasons assigned in this Revision. Consequently, connected Miscellaneous Petition is dismissed.
27.07.2012 Index : Yes/No Internet : Yes/No Sgl To The Principal Sub Judge, Erode.
M.VENUGOPAL,J.
Sgl C.R.P.PD.No.1067 of 2010 27.07.2012