Citation Codes

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Case Number

CRP No. 3913 of 2003

Attorney(S)

V.C.H.Naidu
M.Krishna Mohan Rao

Judges

P.S Narayana, J.

Acts

provisions of Section 6 of the General Clauses Act, 1897 (10 of 1897). (b) The provisions of Rules 5, 15, 17 and 18 of Order VI
SECTION 16 CODE OF CIVIL PROCEDURE AMENDMENT ACT
Section 21(5) of the Specific Relief Act, 1963 (hereinafter
CODE OF CIVIL PROCEDURE AMENDMENT ACT 2002
Order VI Rule 17 of the Code of Civil Procedure
SECTION 21 SPECIFIC RELIEF ACT 1963
Section 31(2) of the Land Acquisition Act
ARTICLE 227 CONSTITUTION OF INDIA
SECTION 73 CONTRACT ACT
Sub-section (2) of Section 40
Sub-section (5) of Section 21
Section 16 Sub-section 2(b)
Rule 17, Order 6, CPC.
Order 6, Rule
6, Rule 17

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This civil revision petition was filed by the petitioners/plaintiffs challenging the order dated 30-3-1998 made in I.A. No. 96 of 1998 in O.S. No. 38 of 1992 on the file of the Senior Civil Judge, Peddapuram.

In I.A. No. 96 of 1998 the petitioners sought permission to amend the plaint to state that the suit schedule property had been acquired by the Government during the pendency of the suit, and that OP No. 65 of 1988 (registered on a reference under Section 31(2) of the Land Acquisition Act) was pending and the compensation had been deposited in that Court. The proposed amendment sought to claim compensation in lieu of, or in addition to, specific performance.

The respondents opposed the amendment application on grounds that the petitioners were aware of the acquisition, that compensation could not be paid unless the sale deed was executed in their favour, that the application was belated, and that the petitioners intended only to delay the matter. The Senior Civil Judge dismissed the amendment application mainly because of the pending parallel proceedings in OP No. 65 of 1988.

Legal Issues Presented

Whether, pursuant to the proviso to Section 21(5) of the Specific Relief Act, 1963, a plaintiff may be permitted at any stage of the proceedings to amend the plaint to claim compensation in lieu of or in addition to specific performance.
Whether the pendency of separate proceedings for apportionment of compensation (OP No. 65 of 1988 under Section 31(2) of the Land Acquisition Act) or the belated nature of the amendment application can be a valid ground to refuse such an amendment.
Whether the High Court should exercise supervisory jurisdiction under Article 227 of the Constitution of India to set aside the impugned order refusing the amendment.

Arguments of the Parties

Petitioners' Arguments

The proviso to Section 21(5) of the Specific Relief Act mandates that where compensation has not been claimed in the plaint, the Court shall, at any stage, allow amendment to include such claim; therefore the amendment application should have been allowed.
The lower court was incorrect to treat OP No. 65 of 1988 under Section 31(2) of the Land Acquisition Act as a parallel proceeding that would bar amendment; that proceeding was for apportionment of compensation and did not preclude amendment in the suit.
Reference to other statutory provisions (including the proviso to Section 40(2) of the Specific Relief Act) and to precedent (Jagdish Singh v. Natthu Singh) showed legislative intent to permit such amendments and supported allowing the amendment despite its lateness.

Respondents' Arguments

The amendment application was belated and raised at the fag end of proceedings and therefore should not be allowed.
Because the main dispute regarding apportionment of compensation is pending under Section 31(2) of the Land Acquisition Act, it is impermissible to permit the petitioners to amend the pleadings in the suit.
The matter was not a fit case for the exercise of supervisory jurisdiction under Article 227 of the Constitution of India.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jagdish Singh v. Natthu Singh	Held that where amendment relates to a claim for compensation in lieu of or in addition to specific performance under Section 21 (proviso to Sub-section (5)), the Court will allow amendment at any stage; conversion to a suit for damages invokes different (less liberal) standards under Section 73/Order 6, Rule 17 CPC.	The Court relied on this authority to support the proposition that an amendment to claim compensation under the proviso to Section 21(5) is to be permitted at any stage and that distinct standards apply where a plaintiff seeks conversion into a damages suit under Section 73.
Jagdish v. Har Sarup	Interpreted proviso to Section 40(2) of the Specific Relief Act to show that the proviso uses "shall" and therefore makes it imperative to allow amendments for damages even if belated or barred by limitation; distinguished from the discretionary language of Order 6 Rule 17 CPC.	The Court cited this decision to show that where Parliament has used imperative language in a statutory proviso, the Court is obliged to permit the amendment and cannot refuse it on grounds of delay.
V.R. Nathan v. Mac Laboratories (P) Ltd.	Held that the proviso to Section 40(2) is imperative; the belated nature of the application is immaterial and the Court's only discretion is as to the terms upon which amendment is allowed.	The Court relied on this authority to reinforce that once a statutory proviso mandates allowance of amendment, belatedness is not a valid reason to refuse amendment; only the terms of amendment remain within the Court's discretion.

Court's Reasoning and Analysis

The Court began by noting the general power to permit amendments under Order VI Rule 17 of the Code of Civil Procedure, which allows alteration or amendment of pleadings at any stage "in such manner and on such terms as may be just" but contains a proviso restricting amendments after the commencement of trial unless due diligence prevented earlier raising of the matter.

The Court examined the specific statutory mandates in the Specific Relief Act: the language of Section 21(5) (and its proviso) and Section 40(2) (and its proviso). The provisos to these subsections expressly state that where a plaintiff has not claimed compensation (or damages under Section 40), the Court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just to include the claim.

The Court relied on precedent interpreting these provisos. In Jagdish Singh the Apex Court distinguished amendments claiming compensation under Section 21 from amendments seeking conversion into damages under Section 73, holding the former to be allowable at any stage under the proviso. In Jagdish v. Har Sarup and V.R. Nathan the courts emphasized that the word "shall" in the proviso makes allowance imperative and that belatedness does not prevent the Court from permitting amendment; the Court's remaining discretion is limited to imposing terms for the amendment.

Addressing the respondents' objection that OP No. 65 of 1988 (pending under Section 31(2) of the Land Acquisition Act) was a parallel proceeding that warranted denial of the amendment, the Court analyzed the nature of that proceeding and observed it was for apportionment of compensation. The Court stated that whether the relief sought by amendment could ultimately be granted would involve examining the merits and demerits of the case — an inquiry inappropriate at the amendment stage.

The Court further observed that the two proceedings are different in nature and that the result of one may depend on the other; they could, for convenience, be tried together if parties so advised. The Court held that disallowing an amendment application where a statutory provision (the proviso to Section 21(5)) expressly permits amendment — on the grounds of pendency of a parallel proceeding or belatedness — would be an illegality. That illegality justified the exercise of supervisory jurisdiction under Article 227 to correct the lower court's order.

Holding and Implications

The impugned order dated 30-3-1998 is set aside and the Civil Revision Petition (CRP) is allowed.

Implications and immediate consequences:

The dismissal of the amendment application by the Senior Civil Judge (I.A. No. 96 of 1998) has been quashed; the petitioners are entitled, in principle, to amend the plaint to include a claim for compensation under the proviso to Section 21(5) of the Specific Relief Act.
The Court held that the pendency of OP No. 65 of 1988 under Section 31(2) of the Land Acquisition Act or the belated nature of the amendment application are not, by themselves, lawful grounds to refuse an amendment that a statute expressly mandates should be permitted; whether the amended relief can be granted on merits remains a question for the trial court to decide.
The Court exercised supervisory jurisdiction under Article 227 to correct what it characterized as an illegality in the exercise of the lower court's jurisdiction.
No costs were awarded against the parties.

The opinion emphasizes statutory interpretation of the provisos to Section 21(5) and Section 40(2) and reliance on precedent to conclude that the statutory provisos create an imperative duty to allow specified amendments; it does not undertake a decision on the substantive entitlement to compensation but confines itself to allowing the amendment and setting aside the lower court's refusal.

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Singilidevi Veera Venkata Ananthalakshmi And Another v. Bhamidipati Seetharamayya (Died) And Another

1. This civil revision petition is filed by the petitioners/plaintiffs as against an order dated 30-3-1998 made in I.A. No. 96 of 1998 in O.S. No. 38 of 1992 on the file of the Senior Civil Judge, Peddapuram.

2. The revision petitioners/plaintiffs moved an application in I.A. No. 96 of 1998 in O.S. No. 38 of 1992 on the file of the Senior Civil Judge, Peddapuram, praying the Court to permit them to amend the plaint and the substance of the amendment was that the suit schedule property was acquired by the Government during the pendency of the suit and that OP No. 65 of 1988 is pending on the file of the Senior Civil Judge, Peddapuram and that the said OP was registered on a reference made to the same Court under Section 31(2) of the Land Acquisition Act and that the compensation amount was deposited in the said Court and hence the amendment is prayed for paying the relief of compensation in lieu of or in addition to the relief of specific performance prayed for in the suit.

3. Respondents filed a counter and had opposed the said application on the ground that the petitioners are fully aware of the acquisition made by the Government and the compensation cannot be paid to them unless the sale deed is executed in their favour and the application is a belated one and the intention of the petitioners is only to drag on the matter.

4. The learned Senior Civil Judge, Peddapuram, ultimately dismissed the application mainly on the ground that the parallel proceedings in OP No. 65 of 1988 are pending and hence the proposed amendment cannot be allowed.

5. Sri M.S. Rama Chandra Rao, the learned Counsel representing the, petitioners submitted that in view of proviso to Section 21(5) of the Specific Relief Act, 1963 (hereinafter in short referred to as 'Act' for the purpose of convenience), when the relief of compensation is prayed for at any stage of the proceedings, the plaintiff in the suit has to be allowed to amend the plaint, despite the same, the learned Judge had dismissed the said application. The learned Counsel also submitted that the view expressed by the learned Judge below that the said OP No. 65 of 1988 pending under Section 31(2) of the Land Acquisition Act, is a parallel proceeding cannot be sustained since the said proceeding is for apportionment of the compensation. The learned Counsel also had drawn the attention of this Court to other provisions of the aforesaid Act and had emphasised on the language employed in the proviso to Sub-section (5) of Section 21 and the proviso to Sub-section (2) of Section 40 of the Act and had submitted that the intention of the Legislature in introducing these provisions may have to, be borne in mind while deciding amendment applications especially where the main reliefs prayed for are covered by either Section 21 or Section 40 of the said Act. The learned Counsel also had drawn the attention of this Court to a decision in Jagdish Singh v. Natthu Singh., .

6. Per contra, Sri V. Ch. Naidu, the learned Counsel representing the respondents opposed the petition on the ground that this is a belated application thought of at the fag end of the proceedings and the same cannot be allowed. The learned Counsel also had further maintained that as the main dispute relating to the apportionment of the compensation is pending between the parties under Section 31(2) of the Land Acquisition Act, it is impermissible to permit the petitioners to amend the pleadings. The learned Counsel also no doubt made certain submissions that this is not a fit matter to exercise the power of superintendence under Article 227 of the Constitution of India.

7. Heard both the Counsel.

8. It is no doubt true that Order VI Rule 17 of the Code of Civil Procedure as it stands as on today reads as hereunder:

"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."

9. However in the Code of Civil Procedure (Amendment) Act, 2002, (Act 22/ 2002) in repeal and savings Section 16 Sub-section 2(b) it is specified notwithstanding that the provisions of this Act have come into force or repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 (10 of 1897).

(b) The provisions of Rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) and Section 7 of this Act.

10. In view of the same, it is contended that the ground of delay cannot be made as a ground applying the proviso, which had been introduced in the present provision. It is pertinent to note that Sub-section (5) of Section 21 of the Act is clear and explicit and the said provision reads as hereunder:

"21(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 proceedings, 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."

11. Likewise Section 40 Sub-section (2) of the said Act reads as hereunder:

"40(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 proceeding, allow the plaintiff to amend the plaint on such terms as may be just for including such claim."

12. It is clear from the language employed in the respective provisos that at any stage of the proceedings ordinarily an amendment may have to be allowed if the conditions are satisfied, specified, in the said provisions.

In Jagdish Singhs case (supra), the Apex Court held as under:

"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 specific performance the Court will allow the amendment at any stage of the proceeding. That is a claim for compensation falling 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, CPC. The fact that Sub-section (4), in turn, invokes Section 73 of the Contract Act for the principles of quantification and assessment of compensation does not obliterate this distinction."

13. While dealing with Section 40(2) proviso of the Act in a decision in Jagdish v. Har Sarup, , it was held as under:

"Whereas under "Order 6, Rule 17 the Court has a discretion, the proviso to Sub-section (2) of Section 40 makes it imperative for the Court to allow the amendment. It is for that reason that the word "shall" has been used in the proviso to Sub-section (2) in contradiction to the word "may" used under Order 6, Rule 17. The proviso further shows that however 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."

14. In a decision in V.R. Nathan v Mac Laboratories (P) Limited, , while dealing with the proviso under Section 40(2) of the Act, it was held that the proviso is imperative and the Court has no option but to grant the amendment of the plaint and the fact that the application is belated is immaterial and the only discretion left to the Court is as regards the terms on which the plaintiff may be permitted to amend.

15. As can be seen from the language employed in the proviso to Sub-section (5) of Section 21 of the Act, it is clear that at any stage of the proceedings, the amendment may have to be allowed. The other objection raised is that inasmuch as OP No. 65 of 1988 under Section 31(2) of the Land Acquisition Act is pending, the amendment cannot be allowed. In my considered opinion, the said OP is on reference for apportionment of compensation and the relief prayed for by way of amendment in the present application is to have additional relief. Whether the relief in the facts and circumstances can be granted or not, will definitely amount to touching the merits and de-merits of the matter which may have to be decided ultimately while deciding the main suit and this need not be gone into at this stage. The proceedings are different proceedings and it may be that the result of one may depend upon another. It is needless to say that both the proceedings for the convenience of the parties may be tried together, if the parties are so advised in this regard. However, it is suffice to state that when there is a provision specified in the statute i.e., the proviso to Sub-section (5) of Section 21 of the Act, despite that, disallowing an amendment application either on the ground that there is a parallel proceeding pending or on the ground that the application is belated, in my considered opinion is an illegality while exercising the jurisdiction which may have to be rectified while exercising powers under Article 227 of the Constitution of India. For the aforesaid reasons, the impugned order is hereby set aside.

16. Accordingly, the CRP is allowed. No costs.

Singilidevi Veera Ve... v. Bhamidipati Seethara...