- (1.) The controversy here arises in a suit for specific performance and it pertains to the permission granted to the plaintiff to amend his plaint to aver, "the plaintiff has always been and is still ready and willing to perform his part of the agreement and is ready to get the sale-deed registered in his favour". This plea being in consonance with the provisions of S.16-C of the Specific Relief Act 1963 (hereinafter referred to as 'the Act'), which, it is now settled are mandatory and imperative. Indeed, the specific performance of a contract cannot be enforced unless the plaintiff pleads and proves the essential ingredients thereof.
(2.) On December 22, 1984, there was an agreement for the sale of land executed by Joga Singh in favour of Pakhar Ram. Some money was paid by Pakhar Ram to Joga Singh as earnest money and possession of the land in suit was delivered to Pakhar Ram. Pakhar Ram thereafter filed two suits against Joga Singh with regard to this land. The first being for injunction to restrain Joga Singh from interfering with his possession over the land which was decreed in his favour on August 20, 1987. The other, which is the present suit, was filed on December 16, 1985 seeking specific performance of the agreement for sale of land executed in his favour. It was when the case was at the stage of arguments that the plaintiff sought amendment of the plaint to aver as mentioned earlier. The amendment allowed in this behalf is what is now challenged in revision.
(3.) The contention put forth by Mr. A.L. Bahal counsel for the petitioner being that by allowing this amendment, the trial court had deprived the petitioner of the valuable right acquired by him by the failure of the plaintiff to aver as per the provisions of Section 16 of the Act and had thus fallen in error in permitting this amendment. Reliance in this behalf was sought to be placed upon Palthur Honnur Saheb v. Bopanna Annapurnamma, AIR 1986 Kar 109; Ram Singhasan Choubey v. Sudama Prasad Sah, AIR 1982 Patna 200; and, Ahammed v. Mammad Kunhi, AIR 1987 Kerala 228. A reading of the judicial precedents cited would show that, unlike the present case, permission for amendment of the plaint to aver in terms of S.16 of the Act, had been sought after the period of limitation for filing of a suit for specific performance had elapsed. By lapse of time, therefore, a valuable right had come to vest in the defendants. This is not the case here as the amendment, though sought at the stage of arguments, had been asked for before the limitation for the filing of a suit for specific performance of the agreement had elapsed. In dealing with this matter, it must be borne in mind that the invariable ultimate aim of procedural law is to advance the cause of substantial justice and technical rules or procedure cannot be permitted or construed to obstruct it. It would be apt to recall here the judgment of the Supreme Court in M/s. Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484, where it was observed (paras 2 and 5) :- "Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take." Further; "It is true that if a plaintiff seeks to alter the cause of action itself and to introduce indirectly through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time. But, mere failure to set out even an essential fact does not, by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could some time be viewed as equivalent to an introduction of a new cause of action which, cured of its shortcomings, has really become a good cause of action. This, however, is not the only possible interpretation to be put on every defective state of pleadings. Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions, such as payment of either any additional court-fees, which may be payable, or of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should ordinarily refuse prayers for amendment of pleadings.";