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Raj Kumar v. Dipender Kaur Sethi .
Factual and Procedural Background
The respondent agreed on 21-12-1989 to sell certain property to the appellant and received earnest money. On 20-03-1990 the appellant filed a suit for permanent injunction to restrain the respondent from alienating the property. The respondent objected that such a suit was not maintainable and that the appellant should sue for specific performance.
On 03-10-1991 the appellant successfully moved for amendment of the plaint under Order 6 Rule 17 CPC, converting the suit into one for specific performance; the requisite court-fee was paid and an amended plaint was filed. Through oversight the amended plaint omitted the mandatory pleading that the appellant was “ready and willing” to perform his part of the contract.
The respondent then applied under Section 151 and Order 7 Rule 11 CPC to reject the plaint. On 18-05-1993 the trial court directed the appellant to add the missing plea and warned that failure would invite rejection under Order 7 Rule 11. The appellant complied by filing another amended plaint.
On 05-03-1994 the appellant filed a fresh application under Order 6 Rule 17 CPC to insert paragraph 5-A expressly averring continuous readiness and willingness. Despite the respondent’s objection, the trial court allowed this “second amendment” on 09-02-1995.
The respondent challenged that order in Civil Revision No. 1837 of 1995. By order dated 30-10-2002 the High Court set aside the trial court’s permission; a recall application (CM No. 10021-CII of 2003) was also dismissed on 22-08-2003. The present appeals arise from those High Court orders.
Legal Issues Presented
- Whether the trial court was correct in allowing a second amendment to the plaint—introducing the averment of continuous readiness and willingness—after the expiry of three years from the date of agreement to sell.
- Whether such an amendment constituted a new cause of action barred by limitation or merely rectified an inadvertent omission in a suit already converted into one for specific performance within limitation.
Arguments of the Parties
Appellant's Arguments
- The suit had already been converted into one for specific performance well within the limitation period; the second amendment only corrected an inadvertent drafting omission.
- No fresh cause of action was introduced; therefore limitation did not bar the amendment.
- Supported the trial court’s view and relied on the Supreme Court decision in “Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar” which permitted similar amendments when averments under Section 16(c) of the Specific Relief Act were accidentally omitted.
Respondent's Arguments
- The specific performance claim, introduced by the second amendment filed on 03-12-1994, was beyond the three-year limitation period (agreement dated 21-12-1989) and hence barred.
- Relied on “Gurdial Singh v. Raj Kumar Aneja” to contend that procedural rules governing amendments should preclude belated, limitation-barred changes.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar, (1990) 1 SCC 166 | An amendment adding the Section 16(c) “ready and willing” averment does not introduce a new cause of action and should be allowed if it causes no injustice. | Relied upon to hold that inserting para 5-A merely rectified an omission and did not offend the law of limitation. |
| Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, AIR 1957 SC 363; 1957 SCR 595 | Conditions for allowing amendments: (a) no injustice to the other side; (b) necessary for determining the real controversy. | Used to affirm that the proposed amendment met both conditions and therefore should be allowed. |
| Gurdial Singh v. Raj Kumar Aneja, (2002) 2 SCC 445 | General guidance on amendment procedure. | Distinguished; the Court found nothing in this decision that negated the permissibility of the present amendment. |
Court's Reasoning and Analysis
The Supreme Court observed that the suit had already been validly converted to one for specific performance within the limitation period when the first amendment was allowed on 29-02-1992. The omission of the “ready and willing” averment was an inadvertent drafting error. The second amendment sought only to insert a mandatory pleading required under Section 16(c) of the Specific Relief Act; it did not alter the nature of the suit or introduce a new claim.
Applying the principles in “Pirgonda Hongonda Patil” and “Gajanan Jaikishan Joshi,” the Court reasoned that an amendment should be allowed if it causes no irremediable prejudice and is essential to decide the real controversy. Because the respondent could be compensated by costs and still retain all substantive defences, no injustice would result from permitting the amendment. The Court rejected the High Court’s view that limitation barred the amendment, clarifying that limitation attaches to causes of action, not to corrective pleadings in a suit already within time.
The reliance placed by the respondent on “Gurdial Singh” was found misplaced, as that decision did not provide any contrary rule relevant to the present facts.
Holding and Implications
The appeals are allowed; the High Court’s orders dated 30-10-2002 and 22-08-2003 are set aside, and the trial court’s order dated 09-02-1995 permitting the second amendment is restored.
Immediate Effect: The suit for specific performance proceeds on the basis of the amended plaint containing paragraph 5-A. Costs are not awarded to either side.
Broader Implications: The judgment reinforces the permissive approach toward amendments that merely cure technical or inadvertent defects without introducing a new cause of action, even when sought after the limitation period, provided no irremediable prejudice is caused.
Judgment
1. Leave granted.
2. These appeals are directed against the orders of the High Court of Punjab and Haryana dated 30-10-2002 dismissing Civil Revision Application No. 1837 of 1995 and the order dated 22-8-2003 in CM No. 10021-CII of 2003 declining to recall the said order.
3. On 21-12-1989 the respondent agreed to sell certain property to the plaintiff at certain consideration. Certain amount was also received by the first respondent as earnest money. On 20-3-1990 the appellant filed a suit for permanent injunction against the respondent-defendant in which temporary injunction was sought to restrain the respondent-defendant from alienating the suit property until further orders. It was urged by the defendant that a suit for permanent injunction was not maintainable and the plaintiff can seek redress under the Specific Relief Act for specific performance. On 3-10-1991 the appellant moved an application under Order 6 Rule 17 read with Section 115 CPC for making appropriate amendments in the plaint to convert it into a suit for specific performance of the agreement to sell dated 21-12-1989. This application was allowed on 29-2-1992 despite objections made by the respondent. The amendment was permitted and carried out. The appellant thereafter paid the requisite court fee and filed an amended plaint. Unfortunately for the appellant, however, perhaps due to negligence of the draftsman of the plaint, the necessary pleading, that the plaintiff was still ready and willing to perform his part of the contract in terms of the agreement, was inadvertently omitted even in the amended plaint.
4. On 10-6-1992 the respondent filed an application under Section 151 and Order 7 Rule 11 CPC and sought an order to reject the amended plaint. By an order dated 18-5-1993 the trial court disposed of the said application by directing the appellant-plaintiff to file an amended plaint only after carrying out amendment in the relief clause “after taking the plea regarding the fact that he has been ready and willing to perform his part of the contract”. The trial court also directed the plaintiff to comply with this order by 30-5-1993 failing which the provisions of Order 7 Rule 11 CPC would be invoked against him. The appellant thereafter filed the amended plaint in compliance with the said order.
5. The respondent-defendant challenged the order of the trial court dated 18-5-1993 by a civil writ petition CR No. 2214 of 1993 which was disposed of by an order made on 15-8-1993 giving liberty to the appellant to make appropriate application to the trial court. On 5-3-1994 the appellant filed an application under Order 6 Rule 17 CPC read with Section 151 CPC for amendment of plaint and thereby to add inter alia para 5-A which reads as follows:
“… that the plaintiff has always been and is still ready and willing to perform his part of contract in terms of the said agreement, but the defendant has failed to perform her part of the contract.”
6. This was objected to by the respondents. On 9-2-1995 the trial court allowed the amendment as prayed for after finding that the amendment of adding para 5-A did not change the original controversy between the parties since the nature of the suit would remain the same. This order of the trial court was challenged by a revision petition before the High Court. The revision petition was allowed by order dated 30-10-2002. A miscellaneous petition for recalling that order was dismissed on 22-8-2003.
7. The High Court in the order dated 30-10-2002 rightly points out that the first application for converting the suit for injunction into a suit for specific performance had not been objected to. Consequently, when the said amendment was allowed, the suit became one for specific performance. Undoubtedly, the said suit was filed within the period of limitation. It is only the inadvertence of the draftsman in not making the material averment which was sought to be rectified by seeking the second amendment of adding para 5-A. The ground on which the second amendment application was objected to was that the period of limitation for filing a suit for specific performance was 3 years; the agreement to sell was dated 21-12-1989 and the amendment concerned, introducing para 5-A, was filed on 3-12-1994, much beyond the period of limitation.
8. The learned counsel for the appellant have reiterated the contentions which were urged before the High Court. The learned counsel also placed on record a judgment of this Court in Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar (1990) 1 SCC 166 which also pertains to a suit for specific performance in which the averments required under Section 16(c) of the Specific Relief Act, 1963, had been inadvertently omitted while drafting the plaint. The application was made for amending the plaint to bring this averment on record. This Court pointed out that, thereby no fresh cause of action was introduced and, hence, there was no question of causing any injustice to the respondents on that account. Reiterating the principle laid down in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil AIR 1957 SC 363, 1957 SCR 595 it was held by this Court that all amendments ought to be allowed which satisfy the two conditions: (a) not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. It was further observed: (SCR pp. 603-04)
“[A]mendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim.”
9. In our view, therefore, the trial court was justified in permitting the second amendment and the High Court was not right in allowing the revision petition thereagainst for the reason that the suit had already been converted into a suit under the Specific Relief Act within the period of limitation and, thereafter, it is only the missing averment which was introduced by para 5-A. There was no question of not complying with the law of limitation, as far as the second amended plaint was concerned. The High Court was also not justified in not recalling the order.
10. Learned counsel for the respondent heavily relied on the judgment of this Court in Gurdial Singh v. Raj Kumar Aneja (2002) 2 SCC 445, JT (2002) 1 SC 633. Having perused the said judgment with the help of learned counsel for the respondent, we find there nothing which would be of assistance in deciding this case; nor is there anything apart from indicating the procedure for amendments.
11. In the result, we are of the view that the impugned judgment and order of the High Court are erroneous and need to be set aside. The appeals are allowed and the impugned judgment of the High Court dated 30-10-2002 and the order dated 22-8-2003 are both set aside. The trial court's order dated 9-2-1995 is restored. The appeals are accordingly allowed with no orders as to costs.
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