M P RAJASEKHARAN NAIR Vs. RAJU
HIGH COURT OF KERALA
MADHYA PRADESHRAJASEKHARAN NAIR
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(1.) The question that has come up for consideration in this case is as to whether plaintiff could be permitted to amend the plaint and incorporate the averment regarding plaintiff's readiness and willingness to perform his part of the contract as provided under S.16(c) of the Specific Relief Act and whether amendment if allowed would go against the proviso to O.6 R.17 C.P.C.
(2.) Plaintiff instituted the suit for specific performance in the year 1999. The case was included in the list for trial on 5.12.2002. On the said day an application under O.6 R.17 read with S.151 CPC was filed for amendment of the plaint so as to incorporate the pleading of readiness and willingness on the part of the plaintiff in getting the sale deed executed. Objection was filed by the defendant contending that if the amendment is allowed that would change the character of the suit and would cause prejudice to him. Contention was also raised that such an amendment cannot be allowed in view of amended provisions of O.6 R.17 of the CPC. We may extract the amended provisions of O.6 R.17 for easy reference.
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 question 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.
The question that is posed for consideration is whether the proviso added to O.6 R.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 inspite 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. Almost identical question came up for consideration before the Apex Court in Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar 1990 (1) SCC 166 . In that case Apex Court observed as follows:
In the present case no fresh cause of action was sought to be introduced by the amendment applied for. All that the plaintiff appellant sought to do was to complete the cause of action for specific performance for which relief he had already prayed. It was only one averment required under S.16(c) of the Specific Relief Act to be made in a plaint in a Suit for specific performance which was not made, probably on account of some oversight or mistake of the lawyer who drafted the plaint and that error was sought to be rectified by the amendment applied for. There was no fresh cause of action sought to be introduced by the amendment and hence, no question of causing any injustice to the respondent on that account arose.
The above mentioned principle was followed by a later bench of the Apex Court in Lakhi Ram v. Trikha Ram, AIR 1998 SC 1230 . That was a case where District Court had allowed the amendment and remitted the matter back to the Trial Court. Matter was taken up before the High Court. High Court interfered with the order of the District Court and refused the request for amendment of the plaint. Reversing the order of the High Court Apex Court held that the amendment inserting the relevant averments under S.16(c) of the Specific Relief Act does not change the cause of action and would be legally permissible. I am of the view the principle laid down by the Apex Court in the above mentioned two decisions would apply to the facts of this case as well. Under such circumstance I am inclined to set aside the order passed by the court below and allow the revision petitioner's prayer for amendment of the plaint.
CRP would stand allowed.;
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