Dr. D.Y Chandrachud, J.:— This appeal arises from a decision of a learned Single Judge dated 6 March, 2012 by which an amendment has been allowed to the plaint in a suit for specific performance. By the amendment, the plaintiff seeks to claim, in addition to specific performance, damages at the rate of Rs. 500/- per day together with interest. The amendment also seeks to set up an alternate plea that in the event the Court holds that specific performance cannot or ought not to be granted, then in that event, the defendant be directed to refund the amount paid by the plaintiff together with interest and an award of compensation be passed in lieu of specific performance.
2. The suit for specific performance instituted by the plaintiff is of 1988. The plaintiff claims specific performance of an agreement to sell dated 7 July, 1976 in respect of the premises of a shop in a Shopping Complex. The suit which was instituted on 6 July, 1988 is to be tried. A Chamber Summons for amendment of the plaint was taken out by the plaintiff-respondent inter alia seeking to raise a claim for the following reliefs:
“D. Change prayer “(b)” to “(b)(i)” and at the end thereof add the following “and in addition thereto, to pay to the plaintiffs a sum of Rs. 500/- per day as and by way of damages together with interest thereon @ 18% p.a or at such other rate as this Hon'ble Court deems fit and proper from the date of payment thereof by the plaintiffs till payment and/or realization.
-E. Before prayer (c), add as prayer (b)(ii):—
“(b)(ii) Without prejudice and in the alternative to prayer (b)(i) above and in the event of this Hon'ble Court coming to the conclusion that the plaintiffs are entitled to specific performance of the said agreement, but for any reason whatsoever holding that specific performance of the said agreement for sale of the suit premises to the plaintiffs dated 7th July, 1976 (copy at Exhibit “B” to the Plaint) cannot or ought not to be granted, then and in such event only:— (b)(ii)(a) defendant Nos. 1 and 2 be ordered and directed to pay to the plaintiffs the sum of Rs. 6,650/- (Rupees six thousand six hundred fifty only) as and by way of refund of the amount paid by the plaintiffs to defendant No. 1 together with interest thereon @ 18% p.a or at such other rate as this Hon'ble Court deems fit and proper from the date of payment thereof by the plaintiffs till payment and/or realization;
(b)(ii)(b) defendant Nos. 1 and 2 be ordered and decreed to pay to the plaintiffs an amount of Rs. 20,00,000/- (Rupees Twenty Lakhs only) as and by way of damages in lieu of specific performance of the said agreement for sale dated 7th July, 1976 (copy at Exhibit “B” to the Plaint) together with interest thereon @ 18% p.a or at such other rate as this Hon'ble Court deems fit and proper from the date of the suit till payment and/or realization.”
The amendment was allowed by the learned Single Judge on 6 March, 2012.
3. On behalf of the Appellant-defendant, it has been urged that an application for amendment of a Plaint is governed by Article 137 of the Schedule to the Limitation Act, 1963 and ought to have been filed within a period of three years when the right to apply accrued. Reliance was sought to be placed on the judgment of a learned Single Judge of this Court in Harinarayan G. Bajaj v. Vijay Agarwal, 2012(2) Mh.L.J 106 which adopts the position that though Order 6 Rule 17 of the Code of Civil Procedure, 1908 allows either party to alter or amend its pleading at any stage of the proceedings, this would be subject to the provisions of the limitation act and the remedy would be barred after the period prescribed under Article 137 of the Schedule elapses. In the present case, it was hence urged that the application for amendment which was filed in the form of a Chamber Summons on 23 June, 2009, nearly 21 years after the institution of the suit, was barred by limitation and the learned Single Judge consequently erred in allowing the amendment.
4. On behalf of the respondent, a preliminary objection has been raised to the maintainability of the appeal on the ground that an order of a learned Single Judge allowing an amendment to the Plaint does not constitute a judgment within the meaning of Clause 15 of the Letters Patent since it does not affect a valuable right that was accrued to the defendant, nor does it cause prejudice to the defendant. Moreover, it was sought to be urged that the proviso to Sub-section (5) of section 21 of the Specific Relief Act, stipulates that even though the plaintiff has not claimed compensation, in a suit for specific performance either in addition to or in substitution of performance, the Court shall at any stage of the proceedings, allow him to amend the plaint for including the claim for such compensation. Similarly, under the proviso to sub-section (2) of section 22, an amendment is contemplated at the behest of the plaintiff at any stage of the proceedings so as to enable the plaintiff to ask for other relief including possession, partition and separate possession or the refund of earnest money or deposit, in case the claim for specific performance is refused. In the present case, it was, urged that the amendment which was granted by the Court was in terms of the proviso to section 21(5) and section 22(2). Such amendments, the legislature has provided, are permissible at any stage of the proceedings and hence, the bar of limitation would not be attracted to an application for setting up such a plea. Hence, it was urged that the judgment of the learned Single Judge in Harinarayan G. Bajaj (supra) would, in any event, have no application to a situation where the Plaint in a suit for specific performance is sought to be amended to set up an additional plea of that nature.
5. In the suit which the first, second and third respondents have instituted, there is a plea for specific performance of an agreement for sale dated 7 July, 1976 of the premises comprised in a shop. The Specific Relief Act, 1963 contemplates that in addition to or in substitution of a claim for performance, a plaintiff is entitled to claim compensation. Section 21 provides as follows:
“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, 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 (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 the section.”
6. Under sub-section (2) of section 21, the Court is empowered to award compensation for breach where it holds that there is a contract between the parties which was broken by the defendant but in the event it decides that specific performance ought not to be granted. Sub-section (3) empowers the Court to grant compensation for breach in addition to a decree for specific performance where it is of the view that specific performance alone would not satisfy the justice of the case. Sub-section (5), however, stipulates that compensation cannot be awarded under the section unless the plaintiff has claimed such compensation in the plaint. This provision is mandatory.
7. The proviso to sub-section (5) dilutes the rigours of the main provision by allowing the plaintiff who has not claimed such compensation in the plaint to amend the Plaint at any stage of the proceedings and the Court, it has been provided, shall at any stage of the proceedings allow an amendment for including a claim for such compensation on such terms as may be just. In Shamsu Suhara Beevi v. G. Alex, (2004) 8 SCC 569 for instance, the Supreme Court held that the High Court erred in granting compensation under section 21, in addition to the relief of specific performance in the absence of a prayer made to that effect either in the plaint as originally filed or as amended at any stage of the proceedings.
8. Section 22 of the Specific Relief Act, 1963 contains the following provision:
“22. Power to grant relief for possession, partition, refund of earnest money, etc. — (1) Notwithstanding anything contained in the Code of Civil Procedure, 1908, (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable 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.”
Section 22 has a non obstante provision which overrides the Code of Civil Procedure, 1908. A plaintiff who claims specific performance of a contract for the transfer of immovable property, may in an appropriate case ask for possession, partition and separate possession of the property, in addition to specific performance. The plaintiff may also claim any other relief including the refund of earnest money or deposit paid, in case the claim for specific performance is refused. Corresponding to the provisions of sub-section (5) of section 21, sub-section (2) of section 22 stipulates that such relief cannot be granted by the Court unless it has been specifically claimed. However, the proviso requires that the Court shall at any stage of the proceedings allow the plaintiff to amend the plaint to claim such relief where it has not been originally claimed on such terms which may appear just.
9. The object of the legislature in introducing the proviso to sub-section (5) of section 21 and to sub-section (2) of section 22 was to obviate a multiplicity of the proceedings. In Babu Lal v. Hazari Lal, (1982) 1 SCC 525 : AIR 1982 SC 818 the Supreme Court noted that the legislature “has given ample power to the Court to allow amendment of the plaint at any stage.” (At para 20 page 825). This, the Supreme Court held, would include even the stage of execution. The Supreme Court also held that a mere contract for sale or for that matter, a decree for specific performance does not confer title on the buyer and that title would pass only upon execution of the decree. While discussing the issue of limitation, the Supreme Court held as follows:
“If once we accept the legal position that neither a contract for sale nor a decree passed on that basis for specific performance of the contract gives any right or title to the decree-holder and the right and the title passes to him only on the execution of the deed of sale either by the judgment-debtor himself or by the Court itself in case he fails to execute the sale deed, it is idle to contend that a valuable right had accrued to the Petitioner merely because a decree has been passed for the specific performance of the contract. The limitation would start against the decree-holders only after they had obtained a sale in respect of the disputed property. It is, therefore, difficult to accept that a valuable right had accrued to the judgment-debtor by lapse of time. Section 22 has been enacted only for the purpose of avoiding multiplicity of proceedings which the law Courts always abhor.” (At para 21 page 825)
10. The same view was taken by the Supreme Court in a later judgment in Jagdish Singh v. Natthu Singh., (1992) 1 SCC 647 : AIR 1992 SC 1604:
“So far as the proviso to sub-section (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 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 R.17, 0.6, C.P.C 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.” (At para 10 page 1608)
In the decision in Shamsu Suhara Beevi (supra), while holding that the High Court had erred in granting compensation under section 21, in addition to the relief of the specific performance in the absence of a prayer to that effect, the Supreme Court held that a prayer could have been made to that effect either in the plaint or by amending the plaint at any later stage of the proceeding to include the relief of compensation in addition to the relief of a specific performance. The plaint, however, in that case, was never amended and the order of the High Court was, therefore, held to be in error. These principles have also been noticed in a judgment of a learned Single Judge of this Court in Manohar Dhundiraj Joshi v. Jhunnulal Hariram Yadao, 1983 Mh.L.J 369.
11. Since the Court is informed that an appeal has been filed against the judgment of the learned Single Judge in Harinarayan G. Bajaj (supra), we are not expressing any opinion on the correctness of that decision. We are, however, of the view that since the legislature has contemplated that an amendment within the meaning of the provisos to section 21(5) and section 22(2) of the Specific Relief Act, 1963 can be made at any stage of the proceeding, such an amendment would not be barred by limitation. Even as a matter of first principle, an application for amendment must be distinguished from the cause of action which is sought to be set up by the amendment. As a matter of general principle, though an application for amendment is allowed, the question as to whether the cause of action is within limitation would have to be determined and adjudicated upon. While allowing an amendment, it is always open to a Civil Court to direct that the amendment shall not relate back to the institution of the proceeding. The Court would therefore have to determine at trial whether the cause of action is within limitation or is barred. Where the legislature has contemplated that the plaint can be amended at any stage of the proceeding as stipulated in the provisos to section 21(5) and section 21(2). Such an amendment of the nature contemplated by those provisions can indeed be brought about at any stage of the proceedings.
12. The issue as to the maintainability of the appeal is interlinked to the issue as to whether the amendment was barred by limitation. If an amendment which is allowed by the learned Single Judge is barred by limitation, then as held by the judgment of the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania, (1981) 4 SCC 8 the amendment would take away from the defendant a right which was vested by limitation and such a judgment would then be appealable. On the other hand, where a judgment of the Trial Judge which allows an amendment of the Plaint does not operate to take away a right which has accrued by limitation, such a judgment would not either cause gross injustice to the defendant or prejudice a valuable right of the defendant to the suit. The Supreme Court has observed as follows:
“116. We might give another instance of an interlocutory order which amounts to an exercise of discretion and which may yet amount to a judgment within the meaning of the Letters Patent. Suppose the Trial Judge allows the plaintiff to amend his plaint or include a cause of action or a relief as a result of which a vested right of limitation accrued to the defendant is taken away and rendered nugatory. It is manifest that in such cases, although the order passed by the Trial Judge is purely discretionary and interlocutory, it causes gross injustice to the defendant who is deprived of a valuable right of defence to the suit. Such an order, therefore, though interlocutory in nature contains the attributes and characteristics of finality and must be treated as a judgment within the meaning of the Letters Patent. This is what was held by this Court in Shanti Kumar's Case, (1974) 2 SCC 387 as discussed above.” (At para 116 page 57)
13. We have held that the application for amendment that was filed by the plaintiffs in the present case was not barred by limitation. Hence, the judgment of the learned Single Judge allowing the amendment would not operate to cause any prejudice to the Appellant so as to constitute a judgment within the meaning of clause 15 of the Letters Patent. Since we have come to the conclusion that the proposed amendment was not barred by limitation, the necessary consequence would be that the appeal against the order of the learned Single Judge would not constitute a judgment under clause 15 of the Letters Patent.
14. The appeal is accordingly dismissed. There shall be no order as to costs.
Appeal dismissed.