Punjab-Haryana High Court
Rama Nand Chaudhary vs Bhonri And Ors. on 18 July, 1977
Equivalent citations: AIR 1978 PUNJAB AND HARYANA 291
ORDER
1. In January, 1968, one Bhanwar Singh (predecessor--in--interest of respondents Nos. 1 to 1-C) is stated to have entered into an agreement with Rama Nand plaintiff--petitioner for selling a piece of his land to the plaintiff for a consideration out of which Rupees 1,900/-are alleged to have been paid to him by the plaintiff. Instead of selling that piece of land to the plaintiff, Bhanwar Singh transferred the same along with his other land in favour of Mst. Dodi respondent by a registered sale-deed dated June 12, 1968, for Rs. 17,500. One of the terms of the alleged agreement for sale in favour of the plaintiff--petitioner was that in case of failure of Bhanwar Singh to sell the contracted piece of two kanals of land to him within the stipulated period the plaintiff would be entitled to have a sale of double the land, i.e., four kanals for Rs. 2,400/-. This led to the filing of the plaintiff's suit for specific performance of the agreement to sell in August, 1968. The suit was decreed ex parte in 1969. The application of the defendant for setting aside the ex parte decree under Order 9, Rule 13 of the Code of Civil Procedure having been dismissed on August 10, 1973, the defendant went up in appeal against that order under Order 43, Rule 1 of the Code which appeal was allowed on July 19, 1976, and ex parte decree was set aside on that day. Immediately on the suit going back to the trial Court issues were framed out of the pleadings of the parties and issue No. 4 was 'whether the plaintiff has been ready and willing to perform his part of the contract? (Opp)"
2. It appears that the plaintiff realised immediately that though certain averments of fact had been made by him in a part of the plaint, which the plaintiff insists even now amount to a plea of the plaintiff being ready and willing to perform his part of the contract, no such specific averment had been made in the plaint. It was in these circumstances that in August, 1976, within a month of the setting aside of the decree and immediately after the framing of the issues the plaintiff made an application under O. 6, R. 17 of the Code for leave to amend the plaint so as to add paragraph 5A therein for specifically pleading that the plaintiff has been ready and willing and is still ready and willing to perform his part of the contract and that the breach of the contract had been committed by the defendant. The application was contested by the defendant (the vendor respondent). After a detailed discussion of the law on the subject, the Court of Shri S. N. Chadha, Subordinate Judge First Class, Narnaul, dismissed the application of the plaintiff by his order dated Oct. 7, 1976. This is a petition for revision of that order.
3. The learned Subordinate Judge referred in some detail to the principles laid down in various judgments for allowing or declining to allow amendment of pleadings. As I read the order under revision, it appears that on a consideration of those principles the learned Subordinate Judge would normally have been inclined to allow the application, but two considerations weighted with him in declining the request of the plaintiff. Besides referring to the form of the plaint for a suit for specific performance (paragraph 3 of Form No. 47 in the Code) wherein such a plea is necessary, the learned Subordinate Judge correctly found that no suit for specific performance of an agreement to sell is allowed by S. 16 of the Specific Relief Act to be decreed unless there is an averment and proof of the plaintiff having been ready and willing and being still ready and willing on the date of the suit to perform his part of the contract. The learned Subordinate Judge held that S. 16(c) leaves no room for doubt that the suit for specific performance has to fail if the plaintiff fails to plead and prove his readiness and willingness to perform his part of the contract and that inasmuch as the object of the plaintiff for amending the plaint was to make that averment on the assumption that it did not exist in the plaint earlier the result of allowing the amendment would be to deprive the vendee of a valuable right which had accrued to him. There is no doubt about the factual correctness of this position as referred to in the order under revision, but it was at this stage that the learned Subordinate Judge appears to have misread or not correctly appreciated the judgment of Calcutta High Court (Manick Lal Seal v. K. P. Chowdhury, AIR 1976 Cal 115 ) which he purported to have followed in dismissing the application of the plaintiff. The learned Subordinate Judge has said that the Calcutta High Court has held that "where in a suit for specific performance of contract, the plaintiff did not say in evidence anywhere that even at the time of hearing he had been always ready and willing or had been performing his part of the duty according to the contract, an application for amendment of the plaint would not be allowed. " It is the above--mentioned observations of the Calcutta High Court divorced from their context that led to the passing of the order under revision. I have gone through the judgment of Bhattacharya, J., in Manick Lal Seal's case (supra). The requisite averment had not been made in the plaint of the suit. After the dismissal of the suit an application was made by the plaintiff in the High Court at the appellate stage for leave to amend the plaint so as to make the requisite averment. The argument of the counsel for the plaintiff was that the plaintiff had in fact deposed in the course of his statement that he had been ready and willing to perform his part of the contract. The argument having been advanced an application for leave to amend the plaint was permitted to be filed. At the hearing of the application it transpired that in the course of evidence the plaintiff had merely referred to his past willingness prior to the institution of the suit but had not made any averment about his being ready and willing to perform his part of the contract at the time of the institution of the suit. In those circumstances, this is what the learned single Judge of the Calcutta High Court precisely observed (at p. 121):--
"His evidence (the plaintiff's evidence) was in the past tense and he referred to his past willingness. He did not say anywhere that even at the time of hearing, he was willing and ready or had been performing his part of the duty according to the contract. Had there been such statement, there would have been reasons for this Court to allow a prayer for such amendment. This amendment cannot be allowed in the facts and circumstances of this case."
4. It is obvious from the above--quoted passage from the judgment that if the High Court had found that the plaintiff had made the requisite averment on both the points covered by S. 16(c) of the Specific Relief Act it would have allowed the amendment. In the present case, the stage for recording of evidence has admittedly not yet arrived and the plaintiff made the application for leave to amend the plaint in this crucial respect at the earliest possible opportunity. He could not have made such an application before the ex parte decree was set aside. He made it within a month thereafter, i.e., almost immediately. Therefore, in the circumstances of this case there was no delay on the part of the plaintiff to make the application. The Calcutta High Court judgment appears to me to be in favour of the plaintiff rather than against him. I am sure that if this aspect had been brought to the notice of the learned Subordinate Judge he would have allowed the application for amendment. The basic principles for allowing amendment have been laid down by the Supreme Court in Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, AIR 1969 SC 1267. In the circumstances of this case, refusal to allow the amendment is likely to cause grave injustice to the plaintiff. It is also significant that the defence of the respondent in the case is that there was no agreement to sell in favour of the plaintiff and, therefore, there was no question of the plaintiff being ready and willing to perform his part of the contract. The pleas already taken by the plaintiff were taken by both sides to cover this aspect of the case. That is why issue No. 4 was framed. It was by way of abundant caution that the plaintiff made the application at the earliest possible stage, as already held by me. There is no doubt that the suit for specific performance, if filed on the date on which the application for leave to amend was filed, would have been barred by time. As held in L. J. Leach and Co. v. M/s. Jardine Skinner and Co., AIR 1957 SC 357, limitation is one of the matters to be taken into account in the exercise of the judicial discretion under O. 6, R. 17 of the Code. It is not necessary to dismiss an application for amendment merely because it would bring within time a suit which would have been barred by time by then.
5. The only argument strongly put forward by Mr. Jitendervir Gupta, the learned counsel for the contesting respondent, is that, once discretion has been exercised by the trial Court after taking notice of the sound judicial principles laid down by the Supreme Court and other Courts, this Court has no jurisdiction to interfere with an order passed on an application for leave to amend, as held by the Delhi High Court in Laxmi Narain Oil Mills v. Mamraj Musadilal, AIR 1969 Delhi 311. As I have already held above, the trial Court having taken notice of the judicial principles for allowing or not allowing amendment of the pleadings, has committed material irregularity and illegality in mis--applying the law laid down by the Calcutta High Court, as the whole of the judgment in that case does not appear to have been read before the trial Court.
6. For the reasons assigned above, I hold that the order of the trial Court declining to permit the amendment would result in grave injustice to the plaintiff and that the order of the trial Court declining to allow the amendment suffers from material irregularity in the exercise of the Court's jurisdiction under O. 6, R. 17 of the Code. At the same time the amendment appears to have been applied for on the assumption that the crucial averment has not been made in the original plaint. Inasmuch as such an averment should have been made in the very beginning and was made in the post--remand period, the plaintiff must pay costs to the contesting defendant as a condition precedent to the amendment of the plaint.
7. For the foregoing reasons, I allow this petition, set aside the order of the trial Court dated Oct. 7, 1976, and allow the application of the plaintiff for leave to amend the plaint conditional on this paying to the contesting defendant or his counsel in the trial Court a sum of Rs. 100/-as costs. Costs of this petition shall be borne by the parties as incurred by them.
8. Revision allowed.