Document Fragment View

Matching Fragments

If these principles are to be followed, there is little doubt that the learned judge was in error in rejecting the application for amendment made by the appellant. In the present case no fresh cause of action was sought to be introduced by the amendment applied for. All that the appel- lant sought to do was to complete the cause of action for specific performance for which relief he had already prayed. It was only that one averment required in law to be made in a plaint in a suit for specific performance in view of the provisions of sub-section (c) of section 16 of the Specific Relief Act was not made, probably on account of some over- sight or mistake of the lawyer who drafted the plaint and that error was sought to be rectified by the amendment applied for. There was no fresh cause of action sought to be introduced by the amendment and hence, no question of caus- ing any injustice to the respondent on that account arose. Learned counsel for the respondent placed strong reli- ance on the decision of this Court in Ouseph Varghese v. Joseph Aley and Others, [1963] 2 SCC 539. In that case, a suit for specific performance was filed by the plaintiff on the basis of an alleged agreement with the first defendant. The defendant denied the agreement and went on to state that just before his death her husband had agreed to sell to the plaintiff Item No. 1 of the suit property less one acre of paddy field for a sum of Rs. 11,000 but due to the illness of her hus- band, the sale in question could not be effected. After the written statement to this effect was filed, no application for amendment to the plaint was made. The Trial Court de- creed the suit. In the appeal, the High Court did not accept the agreement pleaded by the plaintiff, but granted a decree on the basis of the agreement set out in the written state- ment. It was held by a Bench comprising two learned Judges of this Court that the agreement pleaded by the defendant was wholly different from that pleaded by the plaintiff. The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement and hence, no decree on the basis of that agreement should have been passed in his favour as done by the High Court. The Court held that it was well settled that in a suit for specific performance, the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation in the plaint, the suit is not maintainable. In our opinion, this case does not lend any support to the argument of the learned counsel for the respondent, as in the present case there is no question of any decree being passed on the basis of any agreement other than the one pleaded by the appellant in the plaint. In the result, the judgment and order passed by the learned Single Judge are set aside. The appeal is allowed. The amendment applied for by the appellant is allowed. The amendment to be carried out by the appellant at his own expense within eight weeks of a certified copy of this order being received by the Trial Court. The Trial Court shall thereafter give time to the respondent to file a supplemen- tary written statement, if so advised, and dispose of the case on merits according to law. There will be no order as to costs of the appeal.