Law Web: Whether court can allow amendment of plaint incorporating plea of readiness and willingness to perform his part of contract?

In the facts and circumstances of the case, it cannot be

said that the defendants were put to surprise by the lack of specific

averment in the plaint about the readiness and willingness on the

part of the plaintiff to perform his part of the contract. In the plaint,

apart from stating that the plaintiff is ready to deposit the balance

sale consideration, he also stated that he approached the

defendants several times to execute the document after receiving

the sale consideration. It was also averred by the plaintiff in the

plaint that the defendants refused to fulfill their part of the contract.

In the light of the averments contained in the plaint and in the nature

of the contentions put forward in the written statement as well as the

suggestion made on behalf of the defendants to the plaintiff in cross

examination, it cannot be said that prejudice would be caused to the

defendants if the amendment of the plaint is allowed.

21. The plaintiff specifically stated that it was only due to an

omission that he did not plead specifically in the plaint that he was

ready and willing and continues to be ready and willing to perform

his part of the contract. The question is whether in spite of due

diligence, the plaintiff could have raised the matter before

commencement of trial. The plaintiff stated in the affidavit in lieu of

chief examination about his readiness and willingness to perform his

part of the contract. An omission is something which is not made

consciously. If it is made consciously, strictly speaking, it cannot be

said that it is a bona fide omission. Sometimes, an omission could

not be found out in spite of due diligence in prosecuting the litigation.

Simply because the plaintiff omitted to mention something in the

plaint, not deliberately, it cannot always be said that he was not

acting with due diligence. The question whether the plaintiff acted

with due diligence and whether he could have raised the matter

before the commencement of trial, all depend on the facts and

circumstances of each case. The fact that the plaintiff stated in

evidence about the readiness and willingness would indicate that it

was not a deliberate omission in the plaint, but an accidental

omission.

22. Amendment of the plaint would relate back to the date of

plaint. The Supreme Court has made it clear that in the facts and

circumstances of each case, the Court can allow an amendment to

be carried out in the plaint, though the relief in respect of the

amendment was barred by limitation as on the date of the plaint. In

the present case, the relief claimed is a relief for specific

performance of an agreement for sale. By the amendment of the

plaint, no other relief is sought to be introduced. An averment which

is required to enable the plaintiff to get the relief pleaded in the plaint

is sought to be incorporated by way of amendment. Therefore, it

cannot be said that the claim put forward in the application for

amendment is barred by limitation. The question to be considered is

whether the relief for specific performance is barred by limitation.

Evidently, it is not barred. A fact to be proved to enable the plaintiff

to get the relief of specific performance can be added or

incorporated even after the period of limitation. In such a case, the

suit would not be barred as on the date of filing of the application for

amendment. Therefore, there is no reason to accept the contention

of the defendants that the application for amendment, if allowed,

would have the effect of allowing the plaintiff to incorporate a relief

in the plaint which is barred by limitation.

IN THE HIGH COURT OF KERALAAT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE K.T.SANKARAN

TUESDAY,THE 28TH DAY OF OCTOBER 2014/

OP(C).No. 625 of 2010 (O)

MOHANAN NAIR,

PREMACHANDRAN NAIR,

The Original Petition is filed by the plaintiff in O.S.No.588 of

2006 on the file of the Court of the First Additional Sub Judge,

Thiruvananthapuram, by which the court below dismissed the

application for amendment of the plaint.

2. The petitioner/plaintiff entered into an agreement for

sale with the respondents. The respondents agreed to sell their

property to the petitioner fixing a price at the rate of `12,000/- per

cent of land. The plaintiff contended that a sum of `2 lakhs was

received by the defendants as advance sale consideration. As per

the agreement dated 17.5.2006, the period of six months was fixed

for completing the transaction.

3. Since the defendants were not ready to execute the sale

deed, the plaintiff caused to issue two lawyer notices to the

defendants directing them to execute the document after receiving

the balance consideration. In the notice dated 4th October, 2006, it is

stated thus :

"That my client is always ready and willing to

purchase the property mentioned above, but both of you

have purposefully evaded from executing the sale deed

in favour of my client. My client is still ready and willing

to purchase your property as per the agreement dated

17.5.2006."

Since the defendants failed to comply with the request made in the

lawyer notice, the petitioner filed the suit. In the plaint, however, the

plaintiff did not make any averment that he continues to be ready

and willing to perform his part of the contract, which is mandatory

under Section 16(c) of the Specific Relief Act. However, the plaintiff

stated in the plaint that he was ready to deposit the balance sale

consideration of `2,74,420/- as and when directed by the court.

Along with the plaint, the lawyer notices were also produced.

4. In the written statement filed by the defendants, it was

contended that the plaintiff is a money lender and the agreement for

sale relied on by the plaintiff was not intended to be an agreement

for sale. The first defendant borrowed a sum of Rupees One lakh

from the plaintiff and on that date he executed an agreement

acknowledging receipt of the said amount. He also gave a blank

cheque in favour of the plaintiff. The first defendant again borrowed

a sum of Rupees One lakh from the plaintiff and another agreement

dated 12.4.2006 was executed and another blank cheque was also

handed over to the plaintiff. Interest was being paid to the plaintiff.

However, the plaintiff insisted to execute an agreement for sale with

respect to the plaint schedule property. Accordingly, an agreement

dated 17.5.2006 was executed. The agreement is not a contract for

sale. The plaintiff is not entitled to the relief of specific performance.

5. The suit was listed for trial. It would appear that the

evidence was over. At that time, the plaintiff filed I.A.No.3650 of

2010 to amend the plaint by incorporating the averment that he has

been ready and willing to perform his part of the contract and was

ready to pay the balance sale consideration and he continues to be

ready and willing to perform his part of the contract. In the affidavit

accompanying the application, the plaintiff stated that by an

inadvertent omission, the plea of readiness and willingness was not

incorporated in the plaint.

6. The defendants contended in the counter affidavit that

the amendment cannot be allowed in view of the proviso to Rule 17

of Order VI of the Code of Civil Procedure. An amendment of plaint

cannot be allowed after the commencement of the trial unless the

court comes to the conclusion that in spite of due diligence the

plaintiff could not have raised the matter before the commencement

of the trial. The application for amendment was filed after the period

of limitation for filing a suit for specific performance. It was also

contended that if the application is allowed, serious prejudice would

be caused to the defendants and their accrued rights would be taken

away. The amendment would change the nature and character of

the suit and it would introduce a new cause of action.

7. The court below dismissed the application for amendment

which is under challenge in this Original Petition. The court below

held that the amendment sought for will not change the nature and

character of the suit. The trial court also held that the plaintiff

produced copies of lawyer notices along with the plaint and they

form part of the pleadings. However, the application was dismissed

only on the ground that it was filed after commencement of the trial

and the plaintiff did not establish that in spite of due diligence, he

could not have raised the matter before the commencement of the

trial.

8. Rule 17 of Order VI of the Code of Civil Procedure reads as

follows:

"17. Amendment of pleadings.-- The Court may

at any stage of the proceedings allow either party to

alter or amend his pleadings in such manner and on

such terms as may be just, and all such amendments

shall be made as may be necessary for the purpose of

determining the real questions in controversy between

the parties:

Provided that no application for amendment shall

be allowed after the trial has commenced, unless the

Court comes to the conclusion that in spite of due

diligence, the party could not have raised the matter

before the commencement of trial."

9. In Eapen Antony v. Joseph and another (ILR 2009(1)

Kerala 712), it was held that if the exception to the first part of the

proviso is satisfied and the Court comes to the conclusion that in

spite of due diligence, the party could not raise the matter before

commencement of the trial, it does not restrict the power of the Court

to allow the amendment even after closure of the evidence. In such

a case, the main part of Rule 17 empowering the Court to allow

amendment at any stage of the proceedings will come into operation.

It was also held that only on the ground that the Court has power to

allow amendment of pleadings even after the closure of evidence, it

cannot be said that the plaintiff would have unrestricted rights to

apply for amendment of the pleadings.

10. In Salem Advocate Bar Association, T.N. v. Union of

India ((2005) 6 SCC 344), the Supreme Court held that if the

application is filed after commencement of trial, it has to be shown

that in spite of due diligence, such amendment could not have been

sought earlier. The object is to prevent frivolous applications which

are filed to delay the trial.

11. In Sajjan Kumar v. Ram Kishan ((2005) 13 SCC 89), an

application for amendment of the description of the suit property was

allowed at the final stage of the litigation. The Supreme Court held

that the proposed amendment was necessary for the purpose of

deciding the real question in controversy between the parties and the

refusal to permit the amendment would create needless

complications at the stage of execution, even if the plaintiff gets a

decree.

12. In Chander Kanta Bansal v. Rajinder Singh Anand

((2008) 5 SCC 117), it was held that the proviso to Rule 17 of Order

VI of the Code of Civil Procedure, to some extent, limits the scope of

amendment of pleadings, but it would still vest enough powers in

courts to deal with unforeseen situations whenever they arise.

Therefore, it is not a complete bar to entertain an application after

the commencement of trial.

13. In M.P.Rajasekharan Nair v. Raju & Another (2003 (2)

KLJ 847), a Division Bench of this Court, relying on the decisions of

the Supreme Court in Gajanan Jaikishan Joshi v. Prabhakar

Mohanlal Kalwar ((1990) 1 SCC 166) and Lakhi Ram v. Trikha

Ram (AIR 1998 SC 1230), held as follows:

"....The question that is posed for consideration is

whether the proviso added to Order 6 Rule 17 would bar

the amendment of pleadings. Once the suit has been

listed for trial such an amendment could be allowed only

if the court comes to the conclusion that in spite of due

diligence, the party could not have raised the matter

before the commencement of trial. We are of the view

the plaintiff is seeking amendment of the plaint not to

incorporate a fresh cause of action or to change the

character of the suit. Plaint when drafted due to an

oversight by the lawyer omitted to incorporate an

important averment of readiness and willingness. Fact

that such an averment was not taken was noticed only

when the vakalath was changed and new counsel was

engaged. We are of the view by allowing the

amendment no new cause of action is sought to be

introduced by the plaintiff. Even if such an averment

has been incorporated plaintiff has to prove that he was

ready and willing to perform his part of the contract....."

14. In Dasan v. Sasi (2011 (2) KLT 381), it was held that in

the case of a suit for specific performance of a contract for transfer

of immovable property, the plaintiff can be permitted to amend the

plaint to incorporate a prayer for possession under Section 22 of the

Specific Relief Act. It was also held that the rigour of the proviso to

Rule 17 of Order VI of the Code of Civil Procedure would not as such

apply in cases where proviso to Section 22(2) of the Specific Relief

Act applies.

15. In Rajkumar Gurawara v. S.K.Sarwagi & Company

Private Limited and another ((2008) 14 SCC 364), the Supreme

Court held thus:

"13. To put it clear, Order 6 Rule 17 CPC confers

jurisdiction on the court to allow either party to alter or

amend his pleadings at any stage of the proceedings on

such terms as may be just. Such amendments seeking

determination of the real question of the controversy

between the parties shall be permitted to be made. Pre-

trial amendments are to be allowed liberally than those

which are sought to be made after the commencement

of the trial. As rightly pointed out by the High Court in

the former case, the opposite party is not prejudiced

because he will have an opportunity of meeting the

amendment sought to be made. In the latter case,

namely, after the commencement of trial, particularly,

after completion of the evidence, the question of

prejudice to the opposite party may arise and in such

event, it is incumbent on the part of the court to satisfy

the conditions prescribed in the proviso."

16. In Ravejeetu Builders and Developers v.

Narayanaswamy and Sons and Others ((2009) 10 SCC 84), the

Supreme Court, on an analysis of the English and Indian cases, held

as follows:

"63. On critically analysing both the English and

Indian cases, some basic principles emerge which

ought to be taken into consideration while allowing or

rejecting the application for amendment:

(1) whether the amendment sought is imperative

for proper and effective adjudication of the

case;

(2) Whether the application for amendment is

bona fide or mala fide;

(3) the amendment should not cause such

prejudice to the other side which cannot be

compensated adequately in terms of money;

(4) refusing amendment would in fact lead to

injustice or lead to multiple litigation;

(5) Whether the proposed amendment

constitutionally or fundamentally changes the

nature and character of the case; and

(6) as a general rule, the court should decline

amendments if a fresh suit on the amended

claims would be barred by limitation on the

date of application.

These are some of the important factors which may be

kept in mind while dealing with application filed under

Order 6 Rule 17. These are only illustrative and not

exhaustive."

17. In the aforesaid decision in Ravejeetu Builders and

Developers v. Narayanaswamy and Sons and Others ((2009) 10

SCC 84), the Supreme Court also considered the question of

limitation in the matter of considering the application for amendment

of the plaint and it was held thus:

"39. The rule, however, is not a universal one and

under certain circumstances, such an amendment may

be allowed by the court notwithstanding the law of

limitation. The fact that the claim is barred by the law of

limitation is but one of the factors to be taken into

account by the court in exercising the discretion as to

whether the amendment should be allowed or refused,

but it does not affect the power of the court if the

amendment is required in the interests of justice (see

Ganga Bai v. Vijay Kumar and Arundhati Mishra v. Ram

Charitra Pandey)."

18. In Chander Kanta Bansal v. Rajinder Singh Anand (AIR

2008 SC 2234 = (2008) 5 SCC 117), it was held thus:

"10. The entire object of the said amendment is

to stall filing of applications for amending a pleading

subsequent to the commencement of trial, to avoid

surprises and the parties had sufficient knowledge of

the other's case. It also helps in checking the delays in

filing the applications. Once, the trial commences on

the known pleas, it will be very difficult for any side to

reconcile. In spite of the same, an exception is made in

the newly inserted proviso where it is shown that in

spite of due diligence, he could not raise a plea, it is for

the court to consider the same. Therefore, it is not a

complete bar nor shuts out entertaining of any later

application. As stated earlier, the reason for adding

proviso is to curtail delay and expedite hearing of

cases."

19. In the present case, in the notice issued on behalf of the

plaintiff, specific mention was made about the readiness and

willingness on the part of the plaintiff. The reply notice was

produced along with the plaint. In the affidavit filed by the plaintiff in

lieu of chief examination, he specifically averred that he was always

ready and willing to pay the balance consideration and to get the

document registered and that he continues to be ready and willing to

do so. In the cross examination of the plaintiff, there is no specific

challenge to this statement. The case of the defendants is that the

agreement in question was not as such executed by them as an

agreement for sale of their property. The suggestion made to the

plaintiff in cross examination was that the plaintiff was not entitled to

get any of the reliefs claimed in the plaint and that he would be

entitled to get back `2 lakhs and interest. To that suggestion, the

plaintiff stated that it is for the Honourable Court to decide as to

which relief he would be entitled to.

20. In the facts and circumstances of the case, it cannot be