Himachal Pradesh High Court
Gaurav Kakkar Son Of vs Sita Ram Saraugi And Others Reported In ... on 21 February, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
ON THE 21st DAY OF FEBRUARY, 2022
BEFORE
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
.
CIVIL REVISION No. 29 of 2020
BETWEEN:-
1. GAURAV KAKKAR SON OF
SH.JITENDER KUMAR
KAKKAR, AGE ABOUT 54
YEARS
2. JITENDER KUMAR KAKKAR
SON OF SH. C.D. KAKKAR
BOTH RESIDENT OF HOUSE
NO.880, SECTOR-7
PANCHKULA (HARYANA). ....PETITIONERS
(BY SH. SUDHIR THAKUR,
SENIOR ADVOCATE WITH MR.
KARUN NEGI AND MR.
ANKUSH VERMA,
ADVOCATES)
AND
1. ARUN BANSAL SON OF SH.
A.L. BANSAL, RESIDENT OF
HOUSE NO. 568, SECTOR16 D,
2. CHANDIGARH (U.T.)
CHIEF EXECUTIVE OFFICER-
CUM-SECRETARY HIMUDA
NIGAM VIHAR SHMLA H.P.
(BY SH. K.D SOOD, SENIOR
ADVOCATE WITH MR. MUKUL
SOOD, ADVOCATE FOR R-1 .....RESPONDENTS
(BY MR. JIVESH SHARMA,
ADVOCATE,FOR R-2
Whether approved for reporting? Yes
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2
This petition coming on for orders this day, the Court passed
the following:
ORDER
Petitioners-defendants, by way of present petition, have .
assailed impugned order dated 11.12.2019 passed by learned Senior Civil Judge Kasauli, whereby application filed by respondent No.1- plaintiff, under Order 6 Rule 17 C.P.C, seeking amendment of the plaint for adding alternative prayer in the head note and prayer clause of the plaint, has been allowed.
2. Parties herein, for convenience, shall be referred here-in-
after as plaintiff and defendants, according to their status in the Civil Suit. Respondent No.1 is plaintiff, whereas petitioners are contesting defendants No. 1 and 2 and respondent No.2 is proforma defendant.
3. Plaintiff, being purchaser in a sale agreement executed between him and defendants No. 1 and 2, has filed a Civil Suit for Specific Performance of the contract and for Mandatory Injunction and Possession.
4. As per agreement to sell dated 1.7.2011, executed between the contesting parties, as recorded in clause 8 of this agreement, in case seller backs out from the bargain and fails to complete all terms and conditions of the agreement, then seller shall be liable for prosecution and shall also be liable to refund to the said ::: Downloaded on - 25/02/2022 20:10:43 :::CIS 3 purchaser three times of the amount received by him from the purchaser against the plot, if any, without any hesitation, demand and delay, and further that in case, the purchaser does not accept such .
liquidated damages then the purchaser shall have right to get the sale effected through the court of law under Specific Relief Acts, at the risk and cost of the seller.
5. As per plaint, sellers/defendants were defaulting in execution of the sale deed and transfer of possession of suit property, whereas as per written statement plaintiff was never interested for transfer of the property in his name and despite making efforts by the defendants No. 1 and 2 to transfer the property, plaintiff delayed the matter on one pretext or another.
6. During trial, at the stage of recording evidence of defendants witnesses, plaintiff filed an application under Order 6 Rule 17 C.P.C stating therein that at the time of conducting cross-
examination of the defendants, it was revealed that though the plaintiff had duly mentioned the alternative plea of payment of three times of the sale amount so received by the defendants, in para 9 of the plaint, but had omitted to mention such alternative relief of such recovery, despite due diligence, in the head note and prayer clause of the plaint in spite of the fact that plaintiff had also sought any other relief as deemed fit by the Court.
::: Downloaded on - 25/02/2022 20:10:43 :::CIS 47. The aforesaid application was contested by defendants No.1 and 2 on the grounds that application was hopelessly time barred, in absence of any specific prayer in plaint regarding .
alternative prayer of recovery, at this belated stage, plaintiff could not be allowed to introduce new relief in the suit, by introducing the alternative prayer of recovery, at this belated stage, nature of suit would be changed and lastly that plaintiff had failed to explain due diligence exercised by him in pursuing the case.
8. After taking into consideration, pleadings of the parties and submissions made on their behalf including case law referred, learned Senior Civil Judge, Kasauli has allowed the amendment sought by the plaintiff. Hence the present petition.
9. In present case, plaintiff has filed a suit for 'Specific Performance of Contract' and also for 'Mandatory Injunction' and possession.
10. Being relevant for adjudication of present petition, it would be apt to reproduce Sections 21 and 40 of Specific Relief Act and Order 6 Rule 17 C.P.C for ready reference:
21. Power to award compensation in certain cases.
1. In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach (in addition to) such performance.::: Downloaded on - 25/02/2022 20:10:43 :::CIS 5
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 (9 of 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.
40. Damages in lieu of, or in addition to,injunction.-
(1) The plaintiff in a suit for perpetual injunction under section 38, or mandatory injunction under section 39,may claim ::: Downloaded on - 25/02/2022 20:10:43 :::CIS 6 damages either in addition to, or in substitution for, such injunction and the court may, if it thinks fit, award such damages.
(2) No relief for damages shall be granted under this section unless the plaintiff has .
claimed such relief in his plaint:
Provided that where no such damages have been claimed in the plaint, the court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including such claim.
(3) The dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for such breach.
Order 6 Rule 17 C.P.C:
Amendment of pleadings-
The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
11. Section 21 of Specific Relief Act provides that in a suit for specific performance of contract, plaintiff may also claim compensation for its breach in addition to such performance and thus ::: Downloaded on - 25/02/2022 20:10:43 :::CIS 7 this section mandates the Court to award such compensation where breach of contract is there but specific performance ought not to be granted, with further provision that no compensation shall be awarded .
by the Court unless plaintiff has claimed such compensation in his plaint. It also provides that the Court 'shall' at 'any stage of proceedings' allow the plaintiff to amend the plaint to claim such compensation on such terms as may be just, for including a claim for such compensation.
12. Similarly, Section 40 of the Specific Performance Act provides award of damages in a suit filed for mandatory injunction either in addition to or in substitution for such injunction. In this section also no relief of damages shall be granted unless plaintiff has claimed for such relief in his plaint. However, like Section 21 , where no such damage has been claimed in the plaint, the Court shall, at 'any stage of proceedings' allow the plaintiff to amend the plaint on such terms as may be just for including such claim.
13. Section 21 entitles the plaintiff to amend the plaint to claim compensation, whereas Section 40 entitles the plaintiff to amend the plaint to claim the damages with mandate that court 'shall ' allow such amendment at any stage of proceedings in terms of these Sections.
::: Downloaded on - 25/02/2022 20:10:43 :::CIS 814. Order 6 Rule 17 of C.P.C. deals with amendment of pleadings by providing that Court 'may' at any stage of the proceedings allow the parties to alter or amend pleadings in such .
manner and on such terms as may be just and all such amendment shall be made as may be necessary for purpose of determining the real question in controversy between the parties, with proviso that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not raise the matter before the commencement of trial.
15. Mr. Sudhir Thakur, learned Senior Advocate under instructions of Mr. Karun Negi, Advocate has laid challenge to the impugned order on the basis of grounds already taken before the trial Court. To substantiate his plea, he has referred pronouncements of Supreme Court in cases Shiv Gopal Sah @ Shiv Gopal Sahu versus Sita Ram Saraugi and others reported in (2007) 14, SCC 120, Chander Kanta Bansal vs. Rajinder Singh Anand reported in AIR 2008 S.C 2234, Vidya Bai and others vs. Padmalatha and another reported in (2009) 2 SCC 409 and Pandit Malhari Mahale versus Monika Pandit Mahale reported in (2020) 11, SCC 549 and judgment dated 2.5.2019 of this Court passed in OMP Nos. 316 of 2016 and 139 of 2017 in Civil Suit No. 4084 of 2013, titled ::: Downloaded on - 25/02/2022 20:10:43 :::CIS 9 Mrs.Bahar Murtaza Fazal Ali & others versus Rohini Wahi alias Roohani and also judgment dated 26.04.2019 of Rajasthan High Court in Civil Revision Petition No.24 of 2018 titled M/s Nahar .
Industrial Enterprises Limited vs M/s Swasti Trading Company .
16. In Shiv Gopal Sahu's case relied upon by the defendants, amendment in the plaint was disallowed by the Court for no reasonable explanation for delay and also for claim being time barred as the amendment was sought after delay of 15 years. In this case prayer of the plaintiff was rejected in view of proviso of Order 6 Rule 17 C.P.C. In Chander Kanta Bansal's case, in view of provisions of Order 6 Rule 17 C.P.C, for failure to establish due diligence, amendment sought in plaint to retract the pleadings in the written statement was disallowed.
17. In Vidya Bai's case referred on behalf of defendants, (2009) 2 Supreme Court Cases 409, amendment sought by the defendants was rejected by the trial Court as well as the first Appellate Court alongwith an application for production of documents, proposed to be placed on record after allowing amendment but the High Court had allowed the production of documents and, therefore, case was remanded by the Supreme Court to the High Court to decide whether documents could be allowed to be produced after commencement of trial when the ::: Downloaded on - 25/02/2022 20:10:43 :::CIS 10 amendment of written statement was not allowed observing that proviso appended to Order 6 Rule 17 C.P.C restricts the power of the court by putting an embargo on exercise of its jurisdiction. This .
pronouncement is also not relevant in present case. In Pandit Mahale's case also the Court was not satisfied that in spite of due diligence, as provided under Order 6 Rule 17 C.P.C, party could not introduce amendment before commencement of trial and, therefore, prayer for amendment of the plaint was rejected. In Bahar Murtaza Fazal Ali's case amendment to challenge the will was rejected being time barred. Similarly in Nahar Industrial Enterprises case, in a suit for recovery, amendment to increase the amount to be recovered was not allowed being time barred.
18. Mr. Kapil Dev Sood, Sr. Advocate, under instructions of Mr. Mukul Sood, Advocate, has contended that as averments with respect to entitlement of recovery of three times amount of consideration are already there in para 9 of the plaint made on the basis of clause 8 of the agreement to sell and therefore,by way of amendment sought by the plaintiff nature of the suit is not going to be changed and addition of alternative prayer in the head note and in the prayer clause of the plaint would amount to only elaborating and amplifying the plea already taken in the plaint more particularly for prayer made in plaint to grant any other relief as deemed fit by the ::: Downloaded on - 25/02/2022 20:10:43 :::CIS 11 Court. He has convassed that alternative relief sought to be introduced in the plaint is in terms of the pleadings as well as according to terms and conditions of the agreement to sell. Referring .
Section 40 of Specific Relief Act 1963, it has been argued that in view of proviso to Section 40(2) of the Specific Relief Act, plaintiff is entitled to amend the plaint to include the claim for damages 'at any stage' of proceedings without inhibited by the Limitation Act and / or Order 6 Rule 17 CPC. He has further submitted that plaintiff has exercised due diligence and, therefore, the averments with respect to damages are already there in para 9 of the plaint and so far as mention of the said claim, in head note and prayer clause of the plaint, is concerned the same was to be added by the concerned Advocate at the time of drafting the plaint. Plaintiff has discharged his duty to exercise due diligence by briefing the Advocate with respect to the clause of the agreement and right arising thereto and also for setting up claim for that and for that reason only pleading with respect to such relief is in existence in the plaint.
19. On behalf of the plaintiff pronouncements of the various High Courts in cases Jagdish and others versus Har Sarup, reported in AIR 1978 Delhi 233; Gopal Chandra Chaudhury versus The Life Insurance Corporation of India, reported in AIR 1985 Orissa 120; M/s Hi Sheet Industries vs. Litelon Limited & others, reported in AIR 2007 Mad 78 (Full Bench); and also pronouncements of the Supreme Court ::: Downloaded on - 25/02/2022 20:10:43 :::CIS 12 in cases B.N.Narayana Pillai vs. Parameshwaran Pillai reported in (2000) 1 SCC 712; Prithi Pal Singh and another versus Amrik Singh and others, reported in (2013) 9 Supreme Court cases 576; and .
Universal Petro Chemicals Ltd. v. B.P PLC and others, reported in 2022 SCC Online SC 199, have been referred.
20. In Jagdish 's case, referred on behalf of plaintiff, learned Single Judge of Delhi High Court, has observed as under:
9..............Whereas under O.6,R.17 of the Civil Procedure Code the court has a discretion, the proviso to sub-sec.(2) makes it imperative for the court to allow the amendment. It is for that reason that the word "shall" has been used in contradiction to the word 'may' used under O.6 R.17. The proviso further shows that howsoever belated the request for amendment may be and even if the claim put forward by way of amendment is hopelessly barred by limitation it is the bounden duty of the court to allow the amendment.
10. The word 'proceeding' is not a term of art. It has to be construed with reference to the context in which it has been used. There is nothing to show that " at any stage of the proceedings" does not relate to the appeals which may arise out of the suit. It is now well settled that an appeal is a continuation of the suit. Wherever an appeal lies against any decree and an appeal is filed according to law, the finality of the decree of the trial court comes to an end. Thereafter it is the decree and judgment of the appellate court which will replace the decree and judgment of the trial court.::: Downloaded on - 25/02/2022 20:10:43 :::CIS 13
21. In aforesaid pronouncements,pronouncement of Division Bench of Madras High Court in V.R. Nathan vs Mac Laboratories (P) Limited reported in AIR 1975 Madras 189 has also .
been referred as under:
13. I find that a Division Bench of the Madras High Court in V.R Nathan versus Mac Laboratories (P.) Limited, AIR 1975 Mad 189, allowed the amendment which was asked for the first time during the pendency of the appeal before the High Court against the decree of the trial court dismissing the suit.
The court held: "in view of the imperative language of the proviso which requires that the Court shall grant the amendment..................the plaintiff is entitled, as a matter of right, to have the amendments made and the only discretion left for the Court is about the terms, if any, on which he may be permitted to amend." All the pleas opposing the amendment on the ground that it was very much belated and was lacking in bona fides etc. were held to be futile in view of the proviso to sub- section (2) of S. 40 of the Specific Relief Act.
22. Reliance on behalf of plaintiff has also been placed on judgment in Gopal Chandra Chaudhury's case wherein it has been observed as under:
8........It is clear from sub-section (1) that in a suit for perpetual injunction or mandatory injunction damages may be claimed either in addition to, or in substitution of such injunction. If no such relief for damages has been claimed, according to the proviso to sub section (2), the court shall, at any stage of the suit, allow the plaintiff to amend the plaint including such relief. In this connection ::: Downloaded on - 25/02/2022 20:10:43 :::CIS 14 reference may be made to the Division Bench decision reported in AIR 1975 Mad. 189, V. R. Nathan vs. Mac Laboratories (P) Ltd., in which it was held that in a suit for permanent injunction,according to the proviso to sub section (2) of S.40 of the Specific Relief Act, .
1963 it is imperative and the Court has no option but to allow amendment for adding a prayer for damages. This being the provision of law, the contention that in a suit for permanent injunction damages cannot be claimed is wholly untenable.
23. In pronouncement of Full Bench of Madras High Court in M/s Hi Sheet Industries vs. Litelon Limited & others, it has been held as under:
7.02 Specific Relief:
I) A plain reading of Section 40, sub section (2) proviso clarifies that the Court shall at any stage of the proceedings allow the plaintiff to amend the plaint on such terms as may be just, provided that no such damages have been claimed.
ii) A combined reading of sub-sections (1) and (2) with proviso clarifies that plaintiff may claim damages in suit for injunction but no relief for damages shall be granted unless the plaintiff has claimed such relief:
provided where no such damages have been claimed, the Court shall at any stage of the Proceedings allow to amend the plaint to claim damages.
iii) Thus, it is clear that when the plaintiff has claimed damages in his plaint, he is entitled to do so. When he intends to amend his plaint to claim such damages, where no such damages have been claimed, the Court shall have to permit the ::: Downloaded on - 25/02/2022 20:10:43 :::CIS 15 plaintiff to amend the plaint at any stage of the proceedings. The word " such damages" means, the specific damages viz the amount of damages sought to be claimed through the amendment.
.
iv) The language of Section 40 makes it clear that it is for the plaintiff to claim damages in lieu of injunction, Section 40 makes it clear that it is for the plaintiff does not claim damages, the question of awarding damages does not arise. But when the plaintiff claimed damages and is praying for amendment to specify such damages, the plaintiff is entitled for amendment of plaint for specifying such damages, as he did not claim such damages by specifying the amount.
v) Therefore, it is clear that in a suit for permanent injunction according to proviso to sub-section (2) of Section 40, it is imperative and the Court has no option but to allow the amendment by adding the prayer for such damages, this being the provision of law.
vi) Since the proviso to Section 40 sub-section (2) of the Specific Relief Act reads as an imperative and the Court has no option except to allow the amendment of the plaint and the fact that the application is belated is immaterial. The only discretion left to the Court is as regards the terms on which the plaintiff may be permitted to amend. Thus, any proposed amendment is to be allowed in view of the mandatory nature of the language employed under the proviso to Section 40(2) of Specific Relief Act.
24. Referring pronouncement of the Supreme Court in Prithvi Pal Singh's case, it has been contended on behalf of the plaintiff that in view of provisions of Section 40 of Specific Relief Act, ::: Downloaded on - 25/02/2022 20:10:43 :::CIS 16 the amendment sought by the plaintiff has to be allowed in any case and after allowing such amendment the said amendment has to be related back to date of filing of the suit and, therefore, claim of the .
plaintiff based on the clause of the agreement and also in view of the provisions of Section 40 of the Specific Relief Act cannot be said to be time barred.
25. Similar view has been taken by the Division Bench of High Court of Karnataka in case titled as M.R.K. Rau versus Corporation, City of Bangalore reported in AIR 1992 Karnataka 411, wherein it has been held that in view of provisions of Section 40(2) of the Specific Relief Act, the Court cannot refuse permission to the plaintiff to amend the plaint to include the claim for damages in a suit for perpetual injunction or mandatory injunction as the claim for damages is inherent in a suit for perpetual injunction or mandatory injunction and where no such relief is specifically claimed , if sought for at any stage of the proceedings, it has to be allowed to be added and therefore, contention of the defendant, in that case, that the claim for damages was barred by limitation on the date the application seeking amendment to add the claim for damages, was rejected.
26. Similar view has also been taken by learned Single Judge of this Court in case Civil Revision No.31 of 2005, decided ::: Downloaded on - 25/02/2022 20:10:43 :::CIS 17 on 23.06.2006, titled as Sunil Kuthiala versus Ajwesh Sood and others reported in (2007) 1 CCC 536.
27. In present case claim of the plaintiff is also covered by .
Section 21 of Specific Relief Act. The Supreme Court in Jagdish Singh vs. Natthu Singh's case reported in AIR 1992 Supreme court 1604:(1992) 1 SCC 647 after taking into consideration the provisions of Section 21 of the Specific Relief Act has held as under:
"16. So far as the proviso to subsection (5) is concerned,two positions must be kept clearly distinguished. If the amendment relates to the relief of compensation in lieu of or in addition to specific performance where the plaintiff has not abandoned his relief of specificperformance the court will allow the amendment at any stage of the proceeding. That is a claim for compensation failing under Section 21 of the Specific Relief Act, 1963 and the amendment is one under the proviso to sub section (5).But different and less liberal standards apply if what is sought by the amendment is the Conversion of a suit for specific performance into one for damages for breach of contract in which case Section 73 of the Contract Act is invoked. This amendment is under the discipline of Rule 17 Order 6, C.P.C. The fact that subsection (4), in turn, invokes Section 73 of the Indian Contract Act for the principles of quantification and assessment of compensation does not obliterate this distinction.::: Downloaded on - 25/02/2022 20:10:43 :::CIS 18
17. The provisions of Section 21 seem to resolve certain divergencies of judicial opinion in the High Courts on some aspects of the jurisdiction to award of compensation. Subsection (5) seeks to set .
at rest the divergence of judicial opinion between High Courts whether a specific claim in the plaint is necessary to grant the compensation. In England Lord Cairn's (Chancery Amendment) Act, 1858 sought to confer jurisdiction upon the Equity Courts to award damages in substitution or in addition to specific performance. This became necessary in view of the earlier dichotomy in the jurisdiction between common law and Equity Courts in the matter of choice of the nature of remedies for breach. In common law the remedy for breach of a contract was damages. The Equity Court innovated the remedy of specific performance because the remedy of damages was found to be an inadequate remedy. Lord Cairn's Act, 1858 conferred jurisdiction upon the Equity Courts to award damages also so that both the reliefs could be administered by one court. Section 2 of the Act provided:
"2...In all cases in which the Court of Chancery has jurisdiction to entertain an application for specific performance of any covenant, contract or agreement it shall be lawful for the same Court if it shall think fit to award damages to the party injured either in addition to or in substitution for such specific performance and such damages may be assessed as the Court shall direct."::: Downloaded on - 25/02/2022 20:10:43 :::CIS 19
18. This is the historical background to the provisions of Section 21 of the Specific Relief Act, 1963 and its predecessor in Section 19 of the 1877 Act."
28. Supreme Court in its pronouncement in Universal .
Petro Chemicals' case, considering Jagdish Singh v. Natthu Singh, (1992) 1 SCC 647; Shamsu Suhara Beevi v. G. Alex and another, (2004) 8 SCC 569; Urmila Devi and others v. Deity, Mandir Shree Chamunda Devi, Through Temple Commissioner and Others, (2018) 2 SCC 284; and Sukhbir v. Ajit Singh, (2021) 6 SCC 54, has observed that in view of express provision in proviso to Section 21(5) of the Specific Relief Act on failure on the part of the plaintiff to plead relief of damages/compensation either in the trial Court, in Appellate Court or even before the Supreme Court, by raising plea for damages/ compensation or seeking to amend the relief for that specifically, during the pendency of proceedings including appeal, no relief in the nature of damages and/or compensation can be granted. Observation of the Supreme Court in this Judgment impliedly held that in terms of provision of Section 21(5) of the Specific Relief Act, prayer for relief of damages or compensation, in alternative to the decree for specific performance in the suit, can be added at any stage during pendency of the suit or the appeal.
::: Downloaded on - 25/02/2022 20:10:43 :::CIS 2029. Code of Civil Procedure is a general law prescribing general procedure whereas Specific Relief Act is a special law with reference to C.P.C, wherein Section 21 and 40 provides allowing for .
amendment of the plaint to include the claim for compensation or damages, as the case may be, at any stage of proceedings. In proviso to Section 21(5) and Section 40(2), the word 'shall' has been used by the Legislature by saying that the Court 'shall', at any stage of proceedings, allow the plaintiff to amend the plaint, on such terms as may be just, for including a claim for compensation/damages.
Special law have precedent over General law. In Specific Relief Act word 'shall' has been used in contrast to word 'may' used in Order 6 Rule 17 C.P.C. Provision of Section 21 (5) and 40(2) of Specific Relief Act are imparative in nature and court cannot refuse permission to the plaintiff to amend the plaint to include the claim for compensation/damages if sought in suits covered under Section 21 and 40 of the Specific Relief Act. In such cases,proviso to Order 6 Rule 17 shall have no relevance. Therefore, pronouncements of the Courts rendered with reference to case governed by provisions of Order 6 Rule 17 CPC shall have no bearing on the issue involved in present case.
30. In none of the aforesaid cases referred on behalf of defendants, Section 21 or Section 40 of the Specific Relief Act was ::: Downloaded on - 25/02/2022 20:10:43 :::CIS 21 attracted. Therefore, these judgments are not relevant as unlike the provisions of Order 6 Rule 17 C.P.C, proviso to Section 21(5) and Section 40(2) of Specific Relief Act entitles the plaintiff to seek .
amendment for claiming compensation or damages, as the case may be, 'at any stage of the proceedings' and in some cases the Court have also allowed such amendment at appellate stage.
31. Referring B.K. Narayana Pallai' case, it has been contended on behalf of the plaintiff that amendment sought by the plaintiff would result in solution of real controversy between the parties but without altering original cause of action and without any need of leading further evidence on his behalf, and, therefore, the trial Court has rightly allowed the prayer of the plaintiff to amend the plaint for adding alternative relief in the head note and prayer clause of the plaint. I find force of this contention of learned counsel for the plaintiff as condition for damages/compensation proposed to be claimed alternatively already exist in clause 8 of the agreement to sell and also in pleadings in para 9 of the plaint.
32. In view of above discussion, I am of the considered view that the trial Court has not committed any illegality, irregularity or perversity in the impugned order by allowing the amendment sought by the plaintiff. Hence no interference is warranted.
::: Downloaded on - 25/02/2022 20:10:43 :::CIS 22Accordingly petition is dismissed being devoid of merits, so also pending application(s), if any.
.
(Vivek Singh Thakur),
Judge
21st February, 2022
(veena)
r to
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