Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Revision No. 25 of 1980 against the order of Sri V.S Bajpai, Civil Judge, Allahabad

Judges

Satish Chandra, C.J

Acts

section 16(c) of the Specific Relief Act or of Form 47 of Appendix A, CPC
plaint.5. Section 16(c) of the Specific Relief Act
case.9. Article 54 of the Indian Limitation Act
Sec. 16(c) of the Specific Relief Act.6.
Sec. 16(c) of the Specific Relief Act
Section 16(c) Specific Relief Act
Order XXIII, Rule 3 CrPC.13.
Section 16(c)

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Smart Summary

Judgment Summary — Satish Chandra, C.J.

Factual and Procedural Background

This matter is a plaintiff's application in revision against an order of the learned Civil Judge dismissing the plaintiff's application to amend the plaint. The original suit, filed on August 4, 1979, sought specific performance of a contract dated August 23, 1976, for the sale of a portion of a house for Rs. 35,000. The plaint alleged payment of Rs. 5,000 on August 23, 1976 and repeated requests by the plaintiff for execution of the sale deed, which the defendant deferred. The plaintiff filed an application to amend the plaint on November 20, 1979 to add an express plea that he was "still ready and willing" to perform his part of the agreement. The Civil Judge dismissed that amendment application on grounds including (a) that Section 16(c) of the Specific Relief Act requires that readiness and willingness must be averred in the plaint and proved, and (b) that allowing the amendment would introduce a fresh cause of action and that a valuable right had accrued to the defendant. The present opinion is the revisional consideration of that dismissal.

Legal Issues Presented

Whether an amendment to the plaint to add an averment that the plaintiff is "ready and willing" to perform his part of the contract should be permitted where the original plaint omitted that precise averment required by Form No. 47 (Appendix A, CPC) and Section 16(c) of the Specific Relief Act.
Whether the proposed amendment would introduce a fresh cause of action not present in the original plaint.
Whether any "valuable right" had accrued to the defendant by the date of the amendment application that would bar allowance of the amendment.
Whether the amendment application was time-barred in view of the limitation period for suits for specific performance under Article 54 of the Limitation Act (three years) and the date from which limitation begins to run.

Arguments of the Parties

Appellant (Plaintiff) — Contentions, as reflected in the opinion

The plaintiff sought to amend the plaint to expressly aver that he was still ready and willing to perform his part of the contract (a statutory requirement in Form No. 47 and Section 16(c) of the Specific Relief Act).
Implicitly, the plaintiff relied on the fact that the original plaint already contained allegations that he repeatedly offered to pay the price and asked for the sale deed to be executed, and therefore the amendment only formalised existing allegations rather than introducing a new cause of action.
The amendment was made at an early stage (first hearing) and well within the period of limitation for a fresh suit, so no prejudice or valuable right had accrued to the defendant by the time of the application.

Respondent (Defendant) — Contentions, as reflected in the opinion

In the written statement the defendant pleaded that no agreement was ever entered into, that the alleged agreement was concocted and forged, and that the defendant had already agreed to sell the property to another person by an agreement dated April 4, 1979.
The defendant (and the court below) relied on the proposition that an amendment to include the statutory averment could not be allowed because a valuable right had accrued to the defendant and because the amendment sought to introduce a fresh cause of action.
The defendant (and the court below) placed reliance on the case Mahmood Khan v. Abdulla Khan (AIR 1978 Allahabad 463) to support the proposition that omission of the statutory averment in the plaint is fatal and cannot be cured by amendment when a fresh suit would be time-barred.

Court Below's Decision (as summarized in the opinion)

The learned Civil Judge dismissed the amendment application on the ground that Section 16(c) of the Specific Relief Act requires the necessary averment in the plaint and proof of readiness and willingness, and in absence of that averment the suit cannot succeed.
The court below held that a valuable right had accrued to the defendant and that the proposed amendment would introduce a fresh cause of action which was originally absent, and therefore the amendment could not be allowed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mahmood Khan v. Abdulla Khan, AIR 1978 Allahabad 463	Held that the mandatory requirement of Section 16(c) of the Specific Relief Act (and clause (3) of Form 47, Appendix A, CPC) requires that the plaintiff must both aver readiness and willingness in the plaint and prove it; omission of the averment cannot be cured by proof where a fresh suit would, by that time, be barred by limitation.	The court in the present matter distinguished Mahmood Khan: here the amendment was sought at an early stage (first hearing) and within the period of limitation for a fresh suit, whereas in Mahmood Khan the amendment was sought at the second appeal stage after the period of limitation for a fresh suit had expired. Therefore Mahmood Khan was held not to be applicable to this case.

Court's Reasoning and Analysis

The court's analysis proceeded through a sequence of statutory interpretation and factual evaluation:

Statutory requirement and Form: The court noted that Form No. 47 of Appendix A CPC (clause (3)) and Section 16(c) of the Specific Relief Act require that, in a suit for specific performance, the plaintiff should aver that he "has been and is still ready and willing specifically to perform the agreement" and must both aver and prove readiness and willingness. Consequently, the absence of such an averment in the plaint is a defect.
Nature of the omission: The court rejected the view of the court below that the amendment would introduce a fresh cause of action. It held that the plea of readiness and willingness is not a distinct cause of action but rather a necessary averment supporting the existing cause of action (which, in this case, was alleged to have arisen on August 23, 1976 and on subsequent dates when the plaintiff offered to pay and get the sale deed registered).
Limitation: The court examined Article 54 of the Limitation Act (three-year period for suits for specific performance) and reiterated the legal position that limitation begins either from a date fixed for performance in the agreement or, if no date is fixed, from the date when the plaintiff had notice that performance was refused. The agreement here fixed no date for performance; the pleadings and the written statement suggested that the defendant executed an agreement in favour of a third party on April 4, 1979, and thus limitation could at the earliest commence from April 4, 1979. On that basis, a suit or amendment dated November 20, 1979 was within three years.
Timeliness and prejudice: Because the amendment was sought at the early stage of the suit (at the first hearing, before framing of issues or evidence), the court found no undue delay. The court found no demonstration that a valuable right had accrued to the defendant by the date of the amendment application. The defendant and the court below were unable to identify any concrete valuable right that would be prejudiced.
Distinguishing precedent: The court examined Mahmood Khan v. Abdulla Khan and distinguished it on facts — in that case the requisite averment was entirely absent in the original plaint and the amendment was sought at a much later stage when the period of limitation for a fresh suit had expired. By contrast, in the present case the amendment was early and within limitation.
Policy considerations and procedure: The court emphasised that rules of procedure should not be applied to trap an unwary litigant or to punish a litigant for an incompetent lawyer where allowing amendment would avoid multiplicity of proceedings and would not cause irredeemable injustice or prejudice to the defendant. When the character of the cause of action is unaltered and a fresh suit could be filed, it is preferable to allow amendment to avoid multiplicity, provided no irredeemable prejudice results.

Holding and Implications

Holding:

REVISION ALLOWED; the impugned order of the learned Civil Judge dismissing the amendment application is set aside, and the court below is directed to allow the amendment application.

Implications and immediate consequences:

The plaintiff's amendment to insert the specific averment that he was ready and willing to perform his part of the contract is to be permitted and the earlier dismissal of that application is quashed.
The parties were directed to bear their own costs.
This decision rests on the specific facts that (a) the amendment was sought at an early stage, (b) the proposed amendment did not alter the character of the cause of action, and (c) no valuable right by lapse of limitation had accrued to the defendant. The court distinguished earlier authority that addressed a different factual context where limitation had already expired.
This opinion addresses the direct effect on the parties (allowing the amendment and setting aside the earlier order). The opinion does not purport to lay down a new general principle beyond the factual distinctions it relies upon.

Revision allowed.

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Virendra Kumar v. Daya Nand

Satish Chandra, C.J:— This is a plaintiff's application in revision. It is directed against an order of the learned Civil Judge dismissing an application for amendment of the plaint.

2. The suit was for specific performance of a contract dated August 23, 1976 for sale of a portion of a house. The suit was filed on August 4, 1979. The application for amendment was instituted by the plaintiff on November 20, 1979. The plaintiff wanted to add in the plaint the plea that the plaintiff is still ready and willing to perform his part of the agreement. The learned Civil Judge dismissed the application. The court held that in view of Sec. 16(c) of the Specific Relief Act the plaintiff has to make the requisite averment in the plaint and then to prove by evidence that he has always been ready and willing to perform his part of the contract. In the absence of such an averment in the plaint, the suit cannot succeed. Since valuable right has accrued to the defendant and, in the second place, because the amendment seeks to bring out a fresh cause of action in the plaint which was originally absent, the amendment cannot be allowed. In the original plaint, it was pleaded that the plaintiff was a tenant in a portion of the house which was subject-matter of the contract of sale by the defendant to the plaintiff for a sum of Rs. 35,000/-. The plaintiff alleged that he had advanced a sum of Rs. 5,000/- to the defendant on August 23, 1976, the date on which the defendant executed an agreement to sell the portion in his tenancy to him. The plaint went on to allege that the defendant had promised to obtain permission from the ceiling authorities to sell the house to him but he kept on deferring the matter. The plaintiff several times approached the defendant to get the sale deed registered but the defendant put the plaintiff off on one pretext or another. It was further alleged that the defendant is trying to resile from the contract because he wants to sell it to some other party for a higher price. In paragraph 8 of the plaint it was stated that the cause of action for the present suit arose on August 23, 1976 when the agreement was entered into between the parties at Allahabad and on all subsequent dates, when the plaintiff offered to pay the price and get the sale deed registered.

3. Form No. 47 of Appendix A CPC gives the model form for a plaint for a suit for specific performance of contract of sale. Clause (3) of this Form provides:

(3) The plaintiff has been and is still ready and willing specifically to perform the agreement on his part of which the defendant has had notice.”

4. In accordance with this Form such an allegation should be made in the plaint.

5. Section 16(c) of the Specific Relief Act provides that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or is always ready and willing to perform the essential part of the contract, which has to be performed by him other than the terms, the performance of which has been prevented or waived by the defendant. Reading these two statutory provisions, it is plaint that the plaintiffs' willingness and readiness to perform his part of the agreement has not only to be proved but has also to clearly stated in the plaint. Lack of such an averment in the plaint can lead to the dismissal of the suit on the ground that relief of specific performance of the contract cannot be granted to the plaintiff because of failure to comply with the statutory requirement of Sec. 16(c) of the Specific Relief Act.

6. The court below has observed that the amendment sought by the plaintiff seeks to introduce a fresh cause of action in the plaint which was absent in the plaint as filed originally. This is incorrect. The introduction of the plea that the plaintiff was always ready and willing to perform his part of the contract is not a part of the cause of action for a suit for specific performance. It is one of the necessary averment. In the plaint as originally filed, it was alleged that the plaintiff has been offering the defendant the price and asking him to get the sale deed registered, but the defendant continued to postpone the matter on one pretext or the other. The cause of action was stated to be the date of the agreement, namely, August 23, 1976 and all subsequent dates when the plaintiff offered to pay the price and to get the sale deed registered. So the requisite averment to constitute the cause of action were there. It is not right to say that the plaintiff was attempting to introduce a fresh cause of action by the amendment.

7. In the plaint it was stated that after the agreement the plaintiff got a site plan of the home prepared by a civil engineer and the defendant approved the same on October 26, 1977. It was pleaded that the plaintiff approached the defendant to get the sale deed registered in conformity with the contract but the defendant has been trying to defer it on one pretext or the other. It was then alleged in paragraph 5 of the plaint that certain other persons have approached the defendant and offered higher price for the house including the portion in the tenancy of the plaintiff and the defendant refused to comply with the contract with the plaintiff. In paragraph 6 it was alleged that the defendant is proposing to resile from the contract because of higher offers being received from third parties. Hence the need for the suit.

8. In the written statement it was pleaded that the defendant never entered into an agreement with the plaintiff, that the alleged agreement was concocted and forged, that the defendant had agreed to sell the house to another person by a deed of 4-4-1979 and that the plaintiff has no case.

9. Article 54 of the Indian Limitation Act prescribes a period of three years for filing a suit for specific performance of contract of sale. The period of limitation of three years commences to run from the date fixed for the performance in the agreement or, if no such date is fixed, when the plaintiff had notice that performance is refused. It is not in dispute that the agreement did not fix any date or time for performance. The date of agreement is irrelevant for purpose of computing the period of limitation. For this purpose, two dates are material, namely, the date fixed for performance or, if no such date is fixed, when the plaintiff has notice that performance is refused. From this point of view, the plaint was defective. It was very inartistically drafted. It neither mentioned whether a date was fixed for performance of contract nor did it specifically mention the date when the notice of performance was refused.

10. According to the plaint allegations, the defendant kept on deferring the matter of executing the sale deed on one pretext or the other. That does not necessarily mean that the defendant had refused performance, muchless that plaintiff had notice of such refusal of performance. A reading of the plaint shows that the plaintiff was apprehensive that the defendant is not likely to comply with the contract and hence the suit. From the written statement it appears that the defendant had executed an agreement to sell the house on April 4, 1979 in favour of some other person. A reading of the pleadings shows that the period of limitation could at the earliest commence from April 4, 1979. Thus, the suit filed on November 20, 1979 was well within the prescribed period of three years from April 4, 1979 assuming that the plaintiff had notice of the execution of that agreement in favour of the third party on that date.

11. In this point of view the amendment application dated November 20, 1979 was well within the period of three years form the date of the commencement of limitation for this suit.

12. On the allegations contained in the pleadings of the parties, it is apparent that the plaintiff could file another suit on November 20, 1979 after making the correct and the requisite allegations in the plaint. That plaint could not be said to be barred by time. The present suit could well be dismissed on the ground that it is likely to fail for technical defects. For that reason the court could well grant permission to the plaintiff to file another suit under Order XXIII, Rule 3 CrPC.

13. In this view of the matter I fail to see what valuable right had accrued to the defendant. The defendant could say that a valuable right has accrued to him if a fresh suif filed on the date of the application for amendment would be barred by limitation. That is not the case here. Neither the court below nor the counsel for the defendant opposite party has been able to spell out what exactly is the valuable right which has accrued or vested in the defendant on the date of the amendment application.

14. The requirements of Section 16(c) of the Specific Relief Act or of Form 47 of Appendix A, CPC do not lay down any straight jacket formula. A reading of the plaint shows that the plaintiff was keen to buy the house for fulfilment of the contract but the defendant was resisting. It is evidence that clear Cut averment required by Section 16(c) had not been made. The plaintiff desired to make the position clear by inserting the requisite allegations specifically. This, in my opinion, was formalising the allegations already existing in the plaint and since no right in virtue of lapse of period of limitation had accrued, it could not be said that any valuable right had accrued to the defendant.

15. The court below as well as learned counsel for defendant opposite party has heavily relied on Mahmood Khan v. Abdulla Khan, AIR 1978 Allahbad 463. In that case the requisite averments as required by Section 16(c) Specific Relief Act or by clause (3) of Form 47 of Appendix A of the First Schedule of the CPC had not at all been made in the original plaint directly or indirectly. The amendment was sought at the second appeal stage in the High Court. By that time the preiod of limitation for a fresh suit had long expired. In that context the court held that the mandatory requirement of law was not only proof but averment in the plaint and in the absence of an averment to that effect, the suit cannot succeed even though the plaintiff may have adduced evidence to prove it because proof of the fact cannot be a substitute for its averment in the plaint. This decision is not applicable. Here the prescribed period of limitation had not expired. The amendment application was filed at the first hearing of the suit after its institution. Issues had not been framed till then what to say of evidence having been adduced. There was no undue delay on the part of the plaintiff. It appears that the lawyer who drafted the plaint was inefficient or incompetent and subsequently he came to realize it and then tried to make up the, deficiency in the drafting of the plaint.

16. One of the factors which the court has to keep in mind in matters of disposing of amendment application is to avoid multiplicity of proceedings. If the character of the cause of action is not altered and if a fresh suit could be filed then it is better to allow amendment in order to avoid multiplicity of proceedings provided no irredeemable injustice or prejudice is caused to the defendant. In the present case, I see neither injustice nor any such prejudice. The rules of procedure are not meant to trap on unwary litigant or to punish him for the incompetence of the lawyer. In the result, the revision succeeds and is allowed. The impugned order is set aside and the court below is directed to allow the amendment application. The parties may, however, bear their own costs.

17. Revision allowed.

Virendra Kumar v. Daya Nand

Judgment Summary — Satish Chandra, C.J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (Plaintiff) — Contentions, as reflected in the opinion

Respondent (Defendant) — Contentions, as reflected in the opinion

Court Below's Decision (as summarized in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Virendra Kumar v. Daya Nand

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