- Bookmark
- Share
- CaseIQ
Rama Nand Chaudhary v. Mst. Bhonri And Others
Factual and Procedural Background
In January 1968 Bhanwar Singh (predecessor-in-interest of respondents Nos. 1 to 1-C) allegedly entered into an agreement to sell a piece of land to the plaintiff-petitioner, Rama Nand, who paid Rs. 1,900 as part consideration. Instead of conveying that particular two-kanal piece to the plaintiff, Bhanwar Singh executed a registered sale deed dated 12 June 1968 in favour of Mst. Dodi for Rs. 17,500. One term of the alleged agreement provided that if Bhanwar Singh failed to sell the agreed two kanals within the stipulated period the purchaser would be entitled to a sale of double the land (four kanals) for Rs. 2,400.
The plaintiff instituted a suit for specific performance in August 1968. The suit was decreed ex parte in 1969. An application by the defendant to set aside the ex parte decree under Order 9, Rule 13 CPC was dismissed on 10 August 1973. The defendant appealed under Order 43, Rule 1 CPC; the appeal was allowed on 19 July 1976 and the ex parte decree was set aside. Upon remand the trial Court framed issues, including Issue No. 4: whether the plaintiff has been ready and willing to perform his part of the contract.
Within a month of the decree being set aside (August 1976), and immediately after issues were framed, the plaintiff sought leave under Order 6, Rule 17 CPC to amend the plaint by adding paragraph 5A to expressly plead that he has been and is still ready and willing to perform his part of the contract and that breach was committed by the defendant. The trial Court (Shri S.N. Chadha, Subordinate Judge First Class, Narnaul) dismissed the amendment application by order dated 7 October 1976. The present matter is a petition in revision against that order.
Legal Issues Presented
- Whether the trial Court erred in refusing leave to amend the plaint under Order 6, Rule 17 CPC to add an express averment of the plaintiff's readiness and willingness to perform his contractual obligations, when such pleading is required by Section 16(c) of the Specific Relief Act for a suit for specific performance.
- Whether refusal to permit the proposed amendment, when the application was made promptly after the ex parte decree was set aside and before evidence was recorded, amounted to material irregularity or caused grave injustice warranting interference in revision.
- Whether the High Court should interfere with the trial Court's exercise of discretion on an amendment application where the trial Court has considered judicial principles (the locus classicus of interference with such discretion was relied upon by the contesting respondent).
Arguments of the Parties
Plaintiff-Petitioner
- The plaintiff sought to amend the plaint to add an explicit averment of readiness and willingness to perform the contract (paragraph 5A) as required by Section 16(c) of the Specific Relief Act.
- The application for amendment was made immediately after the ex parte decree was set aside and issues were framed—i.e., at the earliest possible stage and before evidence was recorded—so there was no delay.
- Refusal to allow the amendment would cause grave injustice to the plaintiff and would deprive him of a valuable right when the application was timely.
- The plaintiff's existing pleadings and the framing of Issue No. 4 already brought readiness and willingness into issue; the amendment was by way of abundant caution to make the requisite averment explicit.
Contesting Respondent (Vendor)
- The contesting respondent opposed the amendment application. A principal argument, advanced by Mr. Jitendervir Gupta, was that once the trial Court had exercised its discretion after considering judicial principles, the High Court had no jurisdiction to interfere with that exercise of discretion, relying on Laxmi Narain Oil Mills v. Mamraj Musadilal (AIR 1969 Delhi 311).
- The respondent's pleaded defence is that there was no agreement to sell in favour of the plaintiff, and therefore no question of the plaintiff being ready and willing to perform the contract.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Manick Lal Seal v. K.P. Ghowdhury, Calcutta High Court, AIR 1976 Cal 115 | The Calcutta High Court observed that an amendment to plead readiness and willingness cannot be allowed where the plaintiff's evidence only referred to past willingness and did not state readiness and willingness at the time of hearing; if there had been such a contemporaneous statement the amendment might have been allowed. | The revising Court found that the trial Judge had misread or not fully appreciated the Calcutta High Court judgment. It held that the Calcutta decision, read in full context, supported allowing amendment where the application is made early and before evidence (and would not bar amendment in all circumstances). Thus the trial Court's reliance on a truncated reading was a misapplication of that precedent. |
| Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, (1969) 1 SCC 869; AIR 1969 SC 1267 | Sets out basic principles governing when amendments to pleadings should be allowed under Order 6, Rule 17 CPC. | The Court referred to these Supreme Court principles as guiding the exercise of discretion and concluded that, applying those principles, refusal of the amendment in the present circumstances would cause grave injustice to the plaintiff. |
| L.J. Leach & Co. v. Jardine Skinner & Co., AIR 1957 SC 357 | Principle that limitation is one of the matters to be taken into account in the exercise of judicial discretion under Order 6, Rule 17 CPC. | The Court noted that bringing a suit within time by amendment is a relevant consideration but is not by itself a ground to refuse amendment; citing this case, it held that the possibility that the amendment would make the suit timely does not mandate dismissal of the amendment application. |
| Laxmi Narain Oil Mills v. Mamraj Musadilal, AIR 1969 Delhi 311 | Authority for the proposition that ordinarily an appellate or revisional court should not interfere with a trial Court's discretionary order on an amendment application once the trial Court has applied relevant principles. | The contesting respondent relied on this decision to argue against interference. The revising Court accepted the precedent's general point but found that here the trial Court had materially misapplied the law (misreading a key precedent), constituting material irregularity that justified interference. |
Court's Reasoning and Analysis
The revising Court examined the trial Court's order and the authorities relied upon. The Subordinate Judge had discussed principles for allowing or refusing amendments and would have normally been inclined to allow the amendment, but declined for two reasons: (a) the formal requirement in the plaint for specific performance (Form No. 47 paragraph 3) and (b) the necessity under Section 16(c) of the Specific Relief Act that a suit for specific performance must contain an averment and proof of the plaintiff's readiness and willingness to perform his part of the contract.
The revising Court accepted that the legal position stated by the trial Court about Section 16(c) was factually correct, but concluded that the trial Court misread the Calcutta High Court's decision in Manick Lal Seal v. K.P. Ghowdhury. The trial Court had treated that decision as establishing a blanket rule that amendment would not be allowed where the plaintiff had not deposed to readiness and willingness in evidence; the revising Court demonstrated that the Calcutta judgment, properly read, turned on the facts (the plaintiff had only spoken of past willingness and not willingness at the date of suit) and would not preclude amendment in a case where the application was made before evidence and at the earliest opportunity.
The revising Court emphasized that here the plaintiff applied to amend within a month of the ex parte decree being set aside and immediately after framing of issues—i.e., before evidence—and therefore there was no delay. The Court treated the Calcutta decision as supportive of permitting amendment under these circumstances.
The Court also invoked the Supreme Court guidance in Jai Jai Ram Manohar Lal to frame the exercise of discretion under Order 6, Rule 17 CPC and noted the principle from L.J. Leach & Co. that bringing a suit within time by amendment is a relevant factor but not a bar to amendment. The revising Court found that refusal to permit the amendment would likely cause grave injustice to the plaintiff.
The respondent's contention that the revising Court lacked jurisdiction to interfere once the trial Court had exercised discretion (as per Laxmi Narain Oil Mills) was considered. The revising Court acknowledged the general principle but concluded that the trial Court had committed a material irregularity and illegality by misapplying the Calcutta judgment. That misapplication of law justified interference in revision.
Balancing the fact that the plaintiff should ideally have pleaded the crucial averment earlier against the realities of the procedural history (ex parte decree, its later setting aside), the Court found that the plaintiff acted promptly in the post-remand period. Nonetheless, because the amendment should have been made at the outset, the Court imposed a condition of costs on the plaintiff as a precursor to allowing amendment.
Holding and Implications
Holding: The Court allowed the petition in revision, set aside the trial Court's order dated 7 October 1976, and permitted the plaintiff's application for leave to amend the plaint by adding the proposed paragraph (conditional on payment of costs).
More precisely, the Court ordered that the plaintiff must pay Rs. 100 to the contesting defendant or his counsel in the trial Court as a condition precedent to the amendment. Costs of this petition were to be borne by the parties as incurred by them. The final line of the opinion records: "Revision allowed."
Implications: The decision directly affects the parties by allowing the plaintiff to amend the plaint to plead readiness and willingness (a necessary averment under Section 16(c) of the Specific Relief Act) subject to payment of Rs. 100 as costs. The Court found material irregularity in the trial Court's exercise of discretion, thereby justifying interference in revision. The opinion does not purport to lay down a new general precedent beyond applying and reconciling existing authorities; it emphasizes correct application of precedents and timeliness of amendment applications (especially where the application is made before evidence and promptly after remand).
1. In January, 1968, one Bhanwar Singh (predecessor-in-interest of respondents Nos. 1 to 1-C) is stated to have entered into an agreement with Rama Nand plaintiff-petitioner for selling a piece of his land to the plaintiff for a consideration out of which Rupees 1,900/- are alleged to have been paid to him by the plaintiff. Instead of selling that piece of land to the plaintiff, Bhanwar Singh transferred the same along with his other land in favour of Mst. Dodi respondent by a registered sale-deed dated June 12, 1968, for Rs. 17,500. One of the terms of the alleged agreement for sale in favour of the plaintiff-petitioner was that in case of failure of Bhanwar Singh to sell the contracted piece of two kanals of land to him within the stipulated period the plaintiff would be entitled to have a sale of double the land, i. e., four kanals for Rs. 2,400/-. This led to the filing of the plaintiff's suit for specific performance of the agreement to sell in August, 1968. The suit was decreed ex parte in 1969. The application of the defendant, for setting aside the ex parte decreee under Order 9, Rule 13 of the CPC having been dismissed on August 10, 1973, the defendant went up in appeal against that order under Order 43, Rule 1 of the Code which appeal was allowed on July 19, 1976, and ex parte decree was set aside on that day. Immediately on the suit going back to the trial Court issues were framed out of the pleadings of the parties and issue No. 4 was “whether the plaintiff has been ready and willing to perform his part of the contract? (Opp)”
2. It appears that the plaintiff realised immediately that though certain averments of fact had been made by him in a part of the plaint, which the plaintiff insists even now amount to a plea of the plaintiff being ready and willing to perform his part of the contract, no such specific averment had been made in the plaint. It was in these circumstances that in August, 1976, within a month of the setting aside of the decree and immediately after the framing of the issues the plaintiff made an application under O. 6, R. 17 of the Code for leave to amend the plaint so as to add paragraph 5A therein for specifically pleading that the plaintiff has been ready and willing and is still ready and willing to perform his part of the contract and that the breach of the contract had been committed by the defendant. The application was contested by the defendant (the vendor respondent). After a detailed discussion of the law on the subject, the Court of Shri S.N Chadha, Subordinate Judge First Class, Narnaul, dismissed the application of the plaintiff by his order dated Oct. 7, 1976. This is a petition for revision of that order.
3. The learned Subordinate Judge referred in some detail to the principles laid down in various judgments for allowing or declining to allow amendment of pleadings. As I read the order under revision, it appears that on a consideration of those principles the learned Subordinate Judge would normally have been inclined to allow the application, but two considerations weighed with him in declining the request of the plaintiff. Besides referring to the form of the plaint for a suit for specific performance (paragraph 3 of Form No. 47 in the Code) wherein such a plea is necessary, the learned Subordinate Judge correctly found that no suit for specific performance of an agreement to sell is allowed by Section 16 of the Specific Relief Act to be decreed unless there is an averment and proof of the plaintiff having been ready and willing and being still ready and willing on the date of the suit to perform his part of the contract. The learned Subordinate Judge held that S. 16(c) leaves no room for doubt that the suit for specific performance has to fail if the plaintiff fails to plead and prove his readiness and willingness to perform his part of the contract and that inasmuch as the object of the plaintiff for amending the plaint was to make that averment on the assumption that it did not exist in the plaint earlier the result of allowing the amendment would be to deprive the vendee of a valuable right which had accrued to him. There is no doubt about the factual correctness of this position as referred to in the order under revision, but it was at this stage that the learned Subordinate Judge appears to have misread or not correctly appreciated the judgment of Calcutta High Court (Manick Lal Seal v. K.P Ghowdhury, AIR 1976 Cal 115) which he purported to have followed in dismissing the application of the plaintiff. The learned Subordinate Judge has said that the Calcutta High Court has held that “where in a suit for specific performance of contract, the plaintiff did not say in evidence anywhere that even at the time of hearing he had been always ready and willing or had been performing his part of the duty according to the contract, an application for amendment of the plaint would not be allowed.” It is the above-mentioned observations of the Calcutta High Court divorced from their context that led to the passing of the order under revision. I have gone through the judgment of Bhattacharya, J., in Manick Lal Seal's case (supra). The requisite averment had not been made in the plaint of the suit After the dismissal of the suit an application was made by the plaintiff in the High Court at the appellate stage for leave to amend the plaint so as to mate the requisite averment. The argument of the counsel for the plaintiff was that the plaintiff had in fact deposed in the course of his statement that he had been ready and willing to perform his part of the contract. The argument having been advanced an application for leave to amend the plaint was permitted to be filed. At the hearing of the application it transpired that in the course of evidence the plaintiff had merely referred to his past willingness prior to the institution of the suit but had not made any averment about his being ready and willing to perform his part of the contract at the time of the institution of the suit. In those circumstances, this is what the learned single Judge of the Calcutta High Court precisely observed (at p. 121):—
“His evidence (the plaintiffs evidence) was in the past tense and he referred to his past willingness. He did not say anywhere that even at the time of hearing, he was willing and ready or had been performing his part of the duty according to the contract. Had there been such statement, there would have been reasons for this Court to allow a prayer for such amendment. This amendment cannot be allowed in the facts and circumstances of this case.”
(Emphasis supplied by me).
4. It is obvious from the above-quoted passage from the judgment that if the High Court had found that the plaintiff had made the requisite averment on both the points covered by Section 16(c) of the Specific Relief Act it would have allowed the amendment. In the present case, the stage for recording of evidence has admittedly not yet arrived and the plaintiff made the application for leave to amend the plaint in this crucial respect at the earliest possible opportunity. He could not have made such an application before the ex parte decree was set aside. He made it within a month thereafter, i. e., almost immediately. Therefore, in the circumstances of this case there was no delay on the part of the plaintiff to make the application. The Calcutta High Court judgment appears to me to be in favour of the plaintiff rather than against him. I am sure that if this aspect had been brought to the notice of the learned Subordinate Judge he would have allowed the application for amendment The basic principles for allowing amendment have been laid down by the Supreme Court in Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, (1969) 1 SCC 869 : AIR 1969 SC 1267. In the circumstances of this case, refusal to allow the amendment is likely to cause grave injustice to the plaintiff. It is also significant that the defence of the respondent in the case is that there was no agreement to sell in favour of the plaintiff and, therefore, there was no question of the plaintiff being ready and willing to perform his part of the contract. The pleas already taken by the plaintiff were taken by both sides to cover this aspect of the case. That is why issue No. 4 was framed. It was by way of abundant caution that the plaintiff made the application at the earliest possible stage, as already held by me. There is no doubt that the suit for specific performance, if filed on the date on which the application for leave to amend was filed, would have been barred by time. As held in L.J Leach and Co. v. Jardine Skinner and Co., AIR 1957 SC 357, limitation is one of the matters to be taken into account in the exercise of the Judicial discretion under O. 6, R. 17 of the Code. It is not necessary to dismiss an application for amendment merely because it would bring within time a suit which would have been barred by time by then.
5. The only argument strongly put forward by Mr. Jitendervir Gupta, the learned counsel for the contesting respondent, is that, once discretion has been exercised by the trial Court after taking notice of the sound judicial principles laid down by the Supreme Court and other Courts, this Court has no jurisdiction to interfere with an order passed on an application for leave to amend, as held by the Delhi High Court in Laxmi Narain Oil Mills v. Mamraj Musadilal, AIR 1969 Delhi 311. As I have already held above, the trial Court having taken notice of the judicial principles for allowing or not allowing amendment of the pleadings, has committed material irregularity and illegality in mis-applying the law laid down by the Calcutta High Court, as the whole of the judgment in that case does not appear to have been read before the trial Court.
6. For the reasons assigned above, I hold that the order of the trial Court declining to permit the amendment would result in grave injustice to the plaintiff and that the order of the trial Court declining to allow the amendment suffers from material irregularity in the exercise of the Court's jurisdiction under O. 6, R. 17 of the Code.
7. At the same time the amendment appears to have been applied for on the assumption that the crucial averment has not been made in the original plaint. Inasmuch as such an averment should have been made in the very beginning and was made in the post-remand period, the plaintiff must pay costs to the contesting defendant as a condition precedent to the amendment of the plaint
8. For the foregoing reasons, I allow this petition, set aside the order of the trial Court dated Oct. 7, 1976, and allow the application of the plaintiff for leave to amend the plaint conditional on his paying to the contesting defendant or his counsel in the trial Court a sum of Rs. 100/- as costs. Costs of this petition shall be borne by the parties as incurred by them.
9. Revision allowed.
Alert