R.R. Misra, J. - (1.) THE plaintiff -petitioner had filed original Suit No. 132 of 1971 for specific performance of a contract of sale. The other relief prayed for in the plaint was for permanent prohibitory injunction to be issued against the defendants. The trial Court decreed the suit for specific performance of the contract but refused the relief of permanent prohibitory injunction. Aggrieved, both the parties filed appeals before the District Judge, Mathura. The said appeals were consolidated and were transferred for disposal to the IIIrd Additional District Judge, Mathura. Meanwhile, since in the trial court the amendment application moved on behalf of the plaintiff for amendment in the plaint to the effect that the plaintiff was ever ready and willing to perform his part of contract was rejected by the trial court the plaintiff appellant again moved an application before the lower appellate court to the same effect, which has also been rejected by the lower appellate court vide its impugned order dated 18 -8 -1979. The petitioner filed a Civil Revision against the same, which was ultimately dismissed by this Court vide its order dated 23 -10 -1980 on the ground that the said revision was not maintainable. Thereafter, challenging the said order dated 18 -8 -1979 passed by the lower appellate court. the plaintiff has filed the present writ petition in this Court. Counter and rejoinder -affidavits have been exchanged in this case. Counsel for the parties have been heard. The main submission made by the learned counsel for the petitioner is that the courts below were not right in law in refusing the amending sought for in the plaint. A perusal of the counter -affidavit in the case shows that no specific objection has been taken on behalf of the defendants -respondents for not allowing the amendment application except that the amendment application if allowed will take away the valuable right which has accrued to the answering respondents. The respondents have not denied the fact that such an application for amendment of the plaint was actually moved even before the court. It has been held in the case of Virendra Kumar v. Daya Nand : 1982 AWC 176 that if the character of the cause of action is not altered and a fresh suit could be filed it is better to allow the amendment in order to avoid multiplicity of proceedings. It was also a suit of specific performance where the plaintiff wanted to introduce the plea that he was always ready and willing to perform his part of contract by way of an amendment application.
(2.) IN view of the above law declared by the court coupled with the fact that the plaintiff had moved necessary application for amendment in the trial court and the fact that the trial court had also decreed the suit for specific performance I consider it expedient and necessary and accordingly in the interest of justice held that the petitioner is entitled to make amendment in the plaint. Consequently, the writ petition succeeds and is allowed with costs. The impugned orders passed by both the courts below including the order dated 18 -8 -1979 passed by the lower appellate court rejecting the amendment application of the plaintiff are hereby quashed and the amendment sought for by the plaintiff in the amendment application is allowed. The plaintiff is permitted to make necessary amendment in the plaint. The trial court is further directed to proceed and dispose of the two appeals, pending before it since 1977, at an early date.;