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1 - 8 of 8 (0.27 seconds)The Code of Civil Procedure, 1908
Article 54 in Constitution of India [Constitution]
The Limitation Act, 1963
Pirgonda Hongonda Patil vs Kalgonda Shidgonda Patil And Others on 7 February, 1957
The cardinal principle of amendment of pleading as contemplated under Order VI, Rule 17, C.P.C. as laid down by the apex Court, as reported in AIR 1957 SC 363, Pirgonda Hongoda Patil v. Lalgonda Shidgonda Patil, has been reiterated in the above mentioned judgment. It was held that the amendments can only be refused when the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him injury or injustice which cannot be compensated by cost. In the present case also the position remains the same. The cause of action for specific performance had not been altered by the amendment sought. All averments in the plaint revealed the readiness and willingness of the plaintiff for part performance of the contract, but only the averment required under the statute had not been incorporated. For such non-incorporation formal defect in the plaint cannot be said to be incurable as such the statement would not cause injustice to the adverse party, as from the averments of the plaint he was knowing on the same cause of action as to what the plaintiff wanted to do. Although courts are silent on allowing the amendment if a fresh suit on the amended claim would be barred by limitation on the date of application. But that
is only a matter of discussion. As has been observed by the apex Court in the above judgment, the present amendment does not cause the defendants to have a right being accrued in his favour of back of the averment in the plaint, rather it was a formality to make specific statement to that effect in the pleadings, although the other averments in the plaint were showing the readiness and willingness of the plaintiff for performing his part of contract. In that view of the matter, I do not find that the learned Court below has committed any error of law or jurisdictional error in allowing the amendment at a belated stage, because such amendment do not want further evidence to be adduced and even if required, the same can be allowed on imposing cost on the opp. party and that cost has already been imposed by the impugned order on the plaintiff opp. party.
Gajanan Jaikishan Joshi vs Prabhakar Mohanlal Kalwar on 13 December, 1989
6. The learned counsel appearing for the opp. parties has also referred to the evidence adduced by the plaintiff's side regarding his readiness and willingness and the same has not been denied in specific words except the fact that the defendants had coloured the agreement to be a forged and fabricated one. According to the learned counsel for the opp. parties although all contents were there not only in the plaint but also in the evidence adduced by the plaintiff but specific averment as required under Section 16-C was inadvertently not being included in the plaint nor the maintainability of the suit had been challenged specifically on that ground in the written statement of the defendants. Only at the stage of argument such plea had been taken and, as such, the plaintiff had no other alternative but to include that averment in the plaint only to satisfy the specific provisions of the statute. The same position arose when the apex Court passed the order in 1991 SCC 166 (supra). In that case the defendant took the specific plea in the written statement regarding non-maintainability of the suit for non-inclusion of such averment as required under Section 16-C of the Specific Relief Act in the plaint and then aprayer was made for deciding the maintainability issue as a preliminary issue and at that stage the amendment petition was filed under Order VI, Rule 17, C.P.C. It was held while allowing the amendment petition by the apex Court that such inclusion of averment in the plaint no fresh cause of action was sought to be introduced rather the cause of action which was there in the original plaint remained so, but due to oversight or mistake such averment was not made and it was also observed that such mistake miglit have been caused by the lawyer while drafting the plaint and, as such, error can be rectified by amendment.
Section 34 in The Specific Relief Act, 1963 [Entire Act]
Ram Singhasan Choubey And Ors. vs Sudama Prasad Sah on 9 April, 1982
Earlier to that a single Bench of this Court has also held in the same line as reported in AIR 1982 Patna 200, Ram Singhasan Chaubey v. Sudama Prasad Sah, that even if there is evidence regarding readiness and willingness to perform the part of the contract that cannot justify an amendment at a belated stage at the time of argument to include the averment of readiness and willingness as per Section 16-C of the Specific Relief Act.
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