Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • For Applicant:— U.P Deopujari
  • For Non-Applicant No. 1:— G.J Ghate.
Judges
  • A.A Ginwala, J.
Acts
  • sub-section (5) of section 21 and sub-section (2) of section 22 of the Specific Relief Act, 1963 (hereinafter referred to as the Act)
  • sub-sections (4) and (5) of section 21 and section 22 including sub-section (2)
  • Rule 17 of Order VI of the Code of Civil Procedure (hereinafter referred
  • sub-sections (4) and (5) of section 21 and the whole of section 22
  • sub-section (5) of section 21 and sub-section (2) of section 22
  • provisions contained in Order VI, Rule 17 of the Code
  • section 73 of the Indian Contract Act, 1872.(5)
  • clause (a) of sub-section (1) of section 22
  • clause (a) or clause (b) of sub-section (1)
  • Order VI, Rule 17 of the Code.
  • section 21 or section 22(1)(b)
  • clause (b) of sub-section (1)
  • SPECIFIC RELIEF ACT 1963
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • For Applicant:— U.P Deopujari
  • For Non-Applicant No. 1:— G.J Ghate.
Judges
  • A.A Ginwala, J.
Acts
  • sub-section (5) of section 21 and sub-section (2) of section 22 of the Specific Relief Act, 1963 (hereinafter referred to as the Act)
  • sub-sections (4) and (5) of section 21 and section 22 including sub-section (2)
  • Rule 17 of Order VI of the Code of Civil Procedure (hereinafter referred
  • sub-sections (4) and (5) of section 21 and the whole of section 22
  • sub-section (5) of section 21 and sub-section (2) of section 22
  • provisions contained in Order VI, Rule 17 of the Code
  • section 73 of the Indian Contract Act, 1872.(5)
  • clause (a) of sub-section (1) of section 22
  • clause (a) or clause (b) of sub-section (1)
  • Order VI, Rule 17 of the Code.
  • section 21 or section 22(1)(b)
  • clause (b) of sub-section (1)
  • SPECIFIC RELIEF ACT 1963
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The applicant-plaintiff instituted a suit for specific performance of a contract for sale of a house (suit filed 18-3-1971). In the original plaint the plaintiff claimed specific performance only and did not specifically claim (a) compensation for breach or (b) refund of earnest money. During the pendency of the suit the plaintiff applied to amend the plaint (application dated in March 1976 — referenced as applied on 9-3-1976 and filed on 5-3-1976 in the record) to add an alternative claim for compensation and refund of earnest money (claimed to be Rs. 7,200) as alternatives to specific performance.

The trial Court rejected the amendment application on the ground that the suit had been filed in 1971 while the amendment application was filed in 1976 and no satisfactory reasons were given for the inordinate delay. The plaintiff filed the present revision application challenging the trial Court's refusal to allow amendment.

Legal Issues Presented

  1. Whether, under the provisos to sub-section (5) of section 21 and sub-section (2) of section 22 of the Specific Relief Act, 1963, a Court is obliged (i.e., has no discretion) to allow a plaintiff to amend his plaint at any stage of the proceeding to include a claim for compensation and/or refund of earnest money.
  2. Whether an amendment introducing a claim for compensation or refund of earnest money can be permitted where, on the date of the amendment application, the additional relief(s) would be barred by limitation.
  3. Whether adding a claim for compensation (or refund) constitutes a new cause of action (which would be barred by limitation) or merely a different/alternative approach to the same facts (which might be permissible).

Arguments of the Parties

Applicant-Plaintiff's Arguments (Mr. Deopujari)

  • The provisos to sub-section (5) of section 21 and sub-section (2) of section 22 of the Specific Relief Act make it obligatory for the Court to allow amendment to include a claim for compensation and refund of earnest money; hence the trial Court ought to have allowed the amendment.
  • Allowing amendments is the rule within limitations and rejection is an exception; consequently the trial Court should have permitted the amendment.

Non-Applicant No.1's Arguments (Mr. G.J. Ghate)

  • The amendment application was not bona fide and did not give adequate reasons why the plaintiff could not have included those reliefs in the original plaint.
  • At the time of the amendment application the claim for compensation and refund had become barred by limitation; therefore, absent extraordinary circumstances, the amendment could not be allowed as it would divest the defendant of a valuable right acquired by lapse of time.
  • The phrase “at any stage of proceeding” in the provisos does not permit allowing an amendment to incorporate a relief that is already barred by limitation.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Prabhudas v. Lallubhai, AIR 1932 Bom. 117 Authority holding that an amendment introducing a new claim which would have been barred by limitation at the time leave was sought cannot be allowed except in exceptional circumstances. The Court cited it as supporting the principle that ordinarily an amendment introducing a time-barred new claim is not permissible.
Bai Kamala v. Shankarrao, AIR 1943 Bom. 407 Similar authority on amendment and limitation showing that introduction of a new, time-barred claim is generally not allowed. Used by the Court to demonstrate the consistent line of Bombay High Court authority on the limitation point.
Chunilal v. Abdul Dawood, AIR 1948 Bom. 140 Another Bombay decision cited for the same limitation/amendment principle. Reinforces the Court's survey of pre-existing authorities that disallow amendments introducing time-barred new causes of action except in exceptional cases.
Bhagwanji v. Alembic Chemical Works, AIR 1948 PC 100 (Privy Council) Privy Council authority that an amendment of plaint introducing a new claim barred by limitation cannot be allowed unless exceptional circumstances exist. Cited as high authority corroborating the proposition that amendments which set up a new, time-barred cause are normally impermissible.
A.K. Gupta & Sons Ltd. v. Damodar Valley Corporation, AIR 1967 SC 96 Supreme Court rule: as a general rule a party cannot, by amendment, set up a new case or a new cause of action when the suit on that new cause is barred; but if the amendment does not add a new cause of action and is merely a different/additional approach to the same facts, the amendment may be allowed even after limitation has expired. Applied centrally by the Court to distinguish between (a) an amendment that introduces a new cause (not allowed if time-barred) and (b) an amendment that is merely an additional approach to the same facts (which may be allowed).
Cropper v. Smith, 1884 26 Ch. D 700 Principle that courts aim to decide rights, not punish parties for mistakes; supports liberal view on amendments in suitable cases. Quoted by the Supreme Court in Gupta and relied upon in the opinion's recitation of the policy favoring determination of real rights.
Kisandas Rupchand v. Rachappa Vithoba, 1909 ILR 33 Bom 644 Authority for the proposition that a party cannot invoke limitation when what is sought by amendment is in substance already present in the original pleading. Referred to in the context of the Gupta principle about substance already being in the pleading.
Pirgonda Hongonda Patil v. Kalgonda Shidgonda, 1957 SCR 595 Approved the Kisandas Rupchand reasoning regarding substance in pleading and limitation. Cited as an approval of the principles used in assessing whether an amendment merely changes the approach or adds a new cause.
Cooke v. Gill, 1873 8 CP 107 Discussed the meaning of “cause of action” in a different context; cited to explain limits of that expression. Used to show that “cause of action” should not be interpreted in an unduly wide way for the present purpose.
Robinson v. Unicos Property Corporation Ltd., 1962-2 All ER 24 Support for the narrower meaning of “cause of action” (new claim constituted by new facts) and that an amendment introducing a new set of ideas should not be allowed. Relied upon to justify the Court's approach that a new claim based on new facts is a new cause and generally not permissible if time-barred.
Dornan v. J.W. Ellis & Co. Ltd., 1962-1 All ER 303 Interpreted “new case” as “new set of ideas”; supports the view that amendments introducing new ideas prejudicial to rights by lapse of time are not allowed. Used to explain the meaning of “new case” in the amendment context.
M/S Ex-Servicemen Enterprises (P.) Ltd. v. Sumey Singh, AIR 1976 Delhi 56 (Delhi High Court) Held that “proceeding” is a comprehensive term (including execution), “at any stage” includes execution, and described the proviso's language (including “shall”) as emphatic and imperative in context. The Court relied on this decision as supportive of the view that the proviso should be given a wide operation and that the words “shall ... at any stage” are emphatic in context.
Babu Lal v. Hazari Lal Kishori Lal, 1982 1 SCC 525 (Supreme Court) Accepted the Delhi High Court's construction that “proceeding” and “at any stage” include execution; did not disapprove the Delhi High Court's view about the mandatory character, though it did not expressly rule on mandatory nature. Cited as supporting the wide construction of “proceeding” and “at any stage” and thus lending weight to the opinion's interpretation of the provisos' scope.

Court's Reasoning and Analysis

The following recounts the court's step-by-step legal analysis, as stated in the opinion.

  1. The Court framed the core question as the scope of the power conferred by the provisos to sub-section (5) of section 21 and sub-section (2) of section 22 of the Specific Relief Act to allow a plaintiff to amend his plaint so as to include compensation and refund of earnest money in a suit for specific performance.
  2. The Court reviewed the factual matrix: the amendment application was made some years after the suit was instituted and, on the day the application was made, the claim for compensation and refund would have been barred by limitation.
  3. The Court surveyed authorities (Bombay High Court, Privy Council and the Supreme Court in A.K. Gupta) to restate well-established principles:
    • Amendments introducing a new claim that is barred by limitation cannot ordinarily be allowed unless exceptional circumstances exist.
    • However, where an amendment does not introduce a new cause of action but merely presents a different or additional approach to the same facts (i.e., the substance is already in the pleading), such an amendment may be permitted even after the period of limitation has expired.
  4. Applying these authorities, the Court examined the specific amendment sought. It found that:
    • The proposed paragraph 7(a), which set out the factual basis for compensation, contained facts that were not in the original plaint; therefore, insofar as compensation was concerned, the amendment would introduce a new case or new cause of action and, being time-barred, would ordinarily be impermissible under the principles in Gupta and related authorities.
    • By contrast, the claim for refund of earnest money did not require new facts and was being sought as an alternative relief to specific performance. Ordinarily a plaintiff suing for specific performance may be entitled to refund of earnest money if specific performance is refused; thus the refund claim could be characterized as an alternative approach arising from the same set of facts rather than a new cause of action.
  5. The Court then turned to the construction of the provisos themselves. It observed that:
    • Order VI, Rule 17 of the Civil Procedure Code already vested Courts with authority to allow amendments in their discretion and to permit such amendments as are necessary to determine the real question in controversy.
    • The provisos to section 21(5) and section 22(2) of the Specific Relief Act were enacted after Rule 17 was already statutorily in force. The fact that Parliament enacted these provisos suggests a deliberate intention to go beyond mere repetition of existing discretionary power.
    • Given the legislative purpose (to avoid multiplicity of suits and proceedings) and the context, the Court concluded that the use of the word “shall” in the provisos was not merely directory: Parliament intended these provisos to make it obligatory on the Court to allow such amendments (subject to such terms as may be just), and not merely to confer the same discretionary power already available under Order VI, Rule 17.
  6. The Court noted supportive judicial interpretations:
    • The Delhi High Court (M/S Ex-Servicemen) interpreted “proceeding” and “at any stage” broadly and described the proviso as emphatic and imperative.
    • The Supreme Court in Babu Lal accepted that construction about the phrases “proceeding” and “at any stage” (including execution stage) and did not disapprove the Delhi High Court's observations regarding mandatory language.
  7. On the basis of the legislative context, the wording of the provisos and the supporting judicial authorities, the Court concluded that the trial Court erred in refusing the amendment application on the grounds of inordinate delay and limitation. The Court held that it was incumbent on the trial Court to permit the plaintiff to amend the plaint as sought.

Holding and Implications

Holding: Revision application allowed; the trial Court's order refusing amendment is set aside and the plaintiff is permitted to carry out the amendment as sought.

Direct consequences and immediate implications (as stated in the opinion):

  • The trial Court's order dated 26-11-1976 refusing the amendment (application filed 5-3-1976) is set aside.
  • The plaintiff is permitted to carry out the amendment to the plaint as sought by him.
  • The parties are directed to appear before the trial Court on 25-10-1982.
  • The costs of the revision application are to be costs in the suit.

Broader legal implication identified by the Court (as expressed in the opinion):

  • The provisos to sub-section (5) of section 21 and sub-section (2) of section 22 of the Specific Relief Act, 1963 were interpreted as imposing an obligation on the Court to permit amendments within their scope (i.e., to include claims for compensation and for reliefs under section 22(1)(b) such as refund of earnest money) "at any stage" and "on such terms as may be just," rather than leaving the matter to residual discretion merely duplicative of Order VI, Rule 17 CPC.
  • Because the opinion rests on statutory construction and existing authorities, it addresses the interplay between the Specific Relief Act provisos and existing procedural powers; the Court emphasized the legislative aim to avoid multiplicity of litigation and to ensure substantive rights are determined rather than defeated by procedural omissions.

Revision application allowed.
Show full summary ...

    Manohar Dhundiraj Joshi v. Jhunnulal Hariram Yadao

    1. The question which arises in this revision application is with regard to the scope of the power as conferred on a Court under the provisos to sub-section (5) of section 21 and sub-section (2) of section 22 of the Specific Relief Act, 1963 (hereinafter referred to as “the Act”) to allow the plaintiff to amend his plaint so as to include a claim for compensation and refund of earnest money in a suit for specific performance of a contract for sale. This question arises on the following facts.

    2. The applicant-plaintiff has instituted a suit against the non-applicant defendants for specific performance of a contract for sale of a house. In the plaint as originally filed the plaintiff had merely claimed specific performance of the said contract, but had not included the relief for compensation and refund of earnest money. During the pendency of the suit on 9-3-1976 the plaintiff applied for amendment of plaint so as to include the claim for compensation and refund of earnest money on the ground that he did not claim these reliefs in the plaint as filed originally in the belief that these reliefs could be included in “any other relief” in the prayer clause. By this amendment the plaintiff sought to recover Rs. 7200 from the defendants on account of compensation and refund of earnest money as alternative to the claim for specific performance. The trial Court rejected this application holding that the suit was filed on 18-3-1971, while the amendment application was filed on 5-3-1976 and no satisfactory reasons were given for such an inordinate delay. It is against this order that the present revision application has been filed. Mr. Deopujari the learned counsel for the applicant-plaintiff submitted that in view of the provisos to sub-section (5) of section 21 and sub-section (2) of section 22 of the Act, the trial Court ought to have allowed the amendment to the plaint since under these provisos the Court is left with no other alternative, but to allow such amendment. He further submitted that at any rate allowing amendment of pleading is a rule within certain limitations and rejection is an exception.

    3. Mr. G.J Ghate the learned counsel for non-applicant No. 1 however supported the impugned order on the ground that the application for amendment was not bona fide and no adequate reasons had been stated in it as to why the plaintiff could not have included those reliefs in the plaint as originally filed. He submitted that at the time when this application was filed, the claim for compensation and refund of earnest money had already become barred by limitation and hence in the absence of any extra-ordinary circumstances shown by the plaintiff the amendment could not have been allowed so as to divest the defendant of a valuable right which had accrued to him by lapse of time. He submitted that the phrase “at any stage of proceeding” occurring in both the provisos does not permit the Court to allow an amendment to incorporate the relief for compensation or refund of earnest money which is already barred by limitation.

    4. It is not disputed before me that on the day when the application for amendment to the plaint was made, the claim for compensation and refund of earnest money would have been barred by limitation. This Court in Prabhudas v. Lallubhai . AIR 1932 Bom. 117., Bai Kamala v. Shankarrao . AIR 1943 Bom. 407., and Chunilal v. Abdul Dawood . AIR 1948 Bom. 140. and the Privy Council in Bhagwanji v. Alembic Chemical Works . AIR 1948 PC 100. have held that an amendment of plaint introducing a new claim which would have been barred by limitation at the time when the leave was sought cannot be allowed, unless there are exceptional circumstances. However in A.K Gupta and Sons Ltd. v. Damodar Valley Corporation . AIR 1967 SC 96. the Supreme Court has laid down that as a general rule a party is not allowed by amendment to set up a new case or new cause of action, particularly when the suit on the new cause of action is barred. But at the same time the Supreme Court has further held that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts, the amendment would be allowed even after expiry of the statutory period of limitation. In laying down this rule the Supreme Court has observed as follows:

    “(8) The principal reasons that have led to the rule last mentioned are, first, that the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistake Cropper v. Smith . 1884 26 Ch. D 700 710-711., and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended Kisandas Rupchand v. Rachappa Vithoba . 1909 ILR 33 Bom 644 at p. 651., approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda . 1957 SCR 595 603.

    (9) The expression “cause of action” in the present context does not mean “every fact which it is material to be proved to entitle the plaintiff to succeed” as was said in Cooke v. Gill . 1873 8 CP 107 116., in a different context for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corporation Ltd. . 1962-2 All ER 24., and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words “new case” have been understood to mean “new set of ideas”: Dornan v. J.W Ellis and Co. Ltd. . 1962-1 All ER 303.. This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time”.

    5. The question now therefore arises is whether by seeking to include the relief for compensation and refund of earnest money the plaintiff was trying to set up a new case or new cause of action or it amounted merely to a different or additional approach to the same facts. A look at the application for amendment would show that the plaintiff wanted to introduce para 7(a) in the plaint, in which he states certain facts on which the claim for compensation is based. Obviously these facts were not in the plaint and in the absence of these facts the plaintiff would not have been entitled to the relief at least for compensation. Hence in so far as the additional relief for compensation is concerned, it has to be said that the plaintiff introduced a new case or a new cause of action as contemplated by the Supreme Court in Gupta's case. Since this relief was barred by limitation the plaintiff would not have been allowed to amend the plaint to introduce it. However, the same could not be said with regard to the refund of earnest money. In that respect no new facts or new cause of action was being set up by the plaintiff and this relief is being sought to be introduced in the plaint only as an alternative relief to the relief for specific performance for which the suit had been filed. Normally the plaintiff in a suit for specific performance would be entitled to refund of earnest money, if the relief for specific performance is refused since this is just and equitable. Hence applying the principle in Gupta's case it would not be possible to say that the amendment with regard to the inclusion of relief for refund of earnest money could have been refused solely on the ground that the said relief was barred by limitation on the day when the amendment was sought. It is not possible to uphold the submission of Mr. Ghate that the application was not bona fide. As pointed out above, the plaintiff in the said application has stated that in the belief that the phrase “any other relief” in the prayer clause would include this relief, he omitted to claim the said relief. It cannot be said that this was not bona fide or that the amendment application was filed with ulterior motive. However the question is whether the provisos to sub-section (5) of section 21 and sub-section (2) of section 22 of the Act leave no alternative to the Court but to allow the amendment at any stage of the proceeding irrespective of the fact that the relief for compensation and refund of earnest money are barred on the day when the amendment is sought, as submitted by Mr. Deopujari. It will be convenient to reproduce sections 21 and 22 of the Act to understand these submissions.

    “21. (1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance.

    (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.

    (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.

    22. (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of a contract for the transfer of immoveable property may, in an appropriate case, ask for—

    (a) possession, or partition and separate possession, of the property, in addition to such performance; or

    (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him in case his claim for specific performance is refused.

    (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed:

    Provided that where the plaintiff has not claimed any such relief 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 relief.

    (3) The power of the Court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21.”

    6. Sub-sections (1), (2) and (3) of section 21 of the Act correspond to paras 1, 2 and 3 of section 19 of the Specific Relief Act, 1877 and sub-sections (4) and (5) of section 21 of the Act are newly added. It appears that there was no provision corresponding to section 22 in the act of 1877 and this section is a new addition to the provisions on the subject of specific relief. It is obvious that sub-sections (4) and (5) of section 21 and the whole of section 22 have been introduced in the Act in order to avoid multiplicity of suits and proceedings. sections 21 and 22 enact a rule of pleading. The only question which falls for consideration is whether in enacting the provisos to sub-section (5) of section 21 and sub-section (2) of section 22 the Legislature intended to cast a duty on the Court to permit the amendment contemplated therein without leaving any discretion to it. This more so because of the word “shall” having been used in both these provisos.

    7. No doubt the mere use of the word “shall” is not indicative of the intention of the Legislature as to whether a particular provision is to be mandatory or directory. It would depend upon the context in which the word is used, the purpose which the provision in which it is used seeks to achieve, and the mischief which such provision seeks to redress. In construing such a provision its impact over corresponding or analogous legislation may also have to be taken into consideration.

    8. Obviously these two provisos deal with the question of permitting the plaintiff to amend his plaint. It is not as if in the absence of these provisos a plaintiff would not have been permitted to carry out an amendment in his pleading by introducing a relief for compensation and refund of earnest money. Rule 17 of Order VI of the Code of Civil Procedure (hereinafter referred to as “the Code”) does confer power on a Court to allow a party to alter or a mend his pleading in such manner and on such terms as may be just. This rule does not stop at that, but it further says that all such amendments should be made as may be necessary for the purpose of determining the real question in controversy between the parties. It is pertinent to note that this provision which empowers the Court in its discretion to permit a party to amend his pleadings, was already on the statute book when the Specific Relief Act, 1963 was enacted. It can, therefore, be presumed that when the latter legislation was on the anvil the Parliament was aware of this power of the Court to permit amendment of pleadings. It cannot be successfully urged that a suit for specific performance falling under the provisions of the said Act would not be governed by the provisions of the Code of Civil Procedure. It is, therefore, clear that to such a suit the provisions contained in Order VI, Rule 17 of the Code would apply and a plaintiff who has earlier failed to incorporate the reliefs for compensation and refund of earnest money could seek the permission of Court to introduce these reliefs by way of amendment. If the Legislature intended that allowing such amendment should be left to the discretion of the Court, it would not have enacted the provisos to sub-section (5) of section 21 and sub-section (2) of section 22. It is well known that the Legislature normally does not enact a superfluous provision. It is therefore not possible to say that by enacting these two provisos the Legislature once again wanted to invest the Court with discretionary power of permitting amendment of pleadings which power already existed under Order VI, Rule 17 of the Code. This gives a clue to the intention of the Legislature in enacting the two provisos and particularly using the word “shall” in both of them. In the context which I have stated above, it appears clearly to me that the Legislature did not intend merely to confer discretionary power on the Court to permit a plaintiff to amend his pleading to introduce these two reliefs at any stage of proceeding, but it intended to make it obligatory and imperative on the Court to allow such amendment. As I have said above, the very idea in enacting sub-sections (4) and (5) of section 21 and section 22 including sub-section (2) thereof was to avoid and do away with the multiplicity of litigation. In my view, therefore, these two provisos do not merely confer discretionary power on the Court, but they make it obligatory on the Court to permit such amendments which come within their purview.

    9. Mr. Deopujari has drawn my attention to the view taken by a learned single Judge of Delhi High Court in M/S. Ex-Servicemen Enterprises (P.) Ltd.…Plaintiff; v. Sumey Singh…Defendant. . AIR 1976 Delhi 56. wherein the proviso to sub-section (2) of section 22 of the Act fell for consideration of the learned Judge. The learned Judge held that the term “proceeding” was a comprehensive term which included execution proceeding also and the phrase “at any stage” would also include the stage of execution. Thus according to the learned Judge, amendment as contemplated by the proviso could be carried out even at the stage of execution proceeding. Now with regard to the question whether the proviso is mandatory or directory, the learned Judge observed as follows:

    “24. Amendment for including the relief of possession can be allowed “on such terms as may be just”. These words also point in the same direction. Justice was the dominant idea in the mind of the Legislature at the time it was enacting the proviso. It knew, one would presume, of the difficulties which a litigant might face by omitting a relief to which he may be entitled and which the section says he must ask for. The proviso says, the Court “shall” allow the amendment. The words are emphatic and imperative”.

    10. This ruling of the Delhi High Court was considered by the Supreme Court in Babu Lal v. Hazari Lal Kishori Lal . 1982 1 SCC 525 in which the interpretation put by the learned Single Judge of the Delhi High Court on the words and phrase “proceeding” and “at any stage” have been accepted by the Supreme Court. In both these cases the above said words and phrase have been construed in the context of clause (a) of sub-section (1) of section 22 which deals with claim for possession or partition and separate possession of the property which is subject matter of the contract. In the case before me, I am not so much concerned with the question whether this construction will also govern cases falling under section 21 or section 22(1)(b) and with the question whether both the provisos are mandatory. It is true that in Babu Lal's case the Supreme Court has not said anything about the view taken by the Delhi High Court with regard to the mandatory nature of the proviso, but at the same time it has to be noted that the said observations of the Delhi High Court have not been over-ruled or disapproved. It can therefore be said that the view of the learned single Judge of the Delhi High Court found favour with the Supreme Court. These two cases would support the view which I have taken above. In my opinion, therefore, it was incumbent upon the trial Court to permit the plaintiff to amend the plaint as sought by him and the permission could not have been refused on the ground that it was inordinately delayed or that the claim for compensation or refund of earnest money was barred by limitation, at the time when the amendment was sought. I, therefore, find that the learned trial Judge has failed to exercise the jurisdiction which vested in him because of two provisos. The said order would have therefore to be set aside and the trial Court will have to be ordered to allow the amendment.

    11. The result therefore is that the revision application is allowed and the order passed by the trial Court on 26-11-1976 on the application filed by the applicant-plaintiff for amendment of the plaint on 5-3-1976 is hereby set aside and the plaintiff is permitted to carry out the amendment as sought by him. The parties are directed to appear before the trial Court on 25-10-1982. The costs of this revision application shall be costs in the suit.

    Revision application allowed.
    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Manohar Dhundiraj Joshi v. Jhunnulal Hariram Yadao
    (Sep 24, 1982)