Shri Ashok Kumar Matta vs Smt. Indira Gulati And Ors.
2006 Latest Caselaw 1869 Del

JUDGMENT

Gita Mittal, J.

1. This application has been filed by the plaintiff under Order 6 Rule 17 of Code of Civil Procedure, 1908 seeking leave to incorporate an alternative prayer in the suit for specific performance. In order to appreciate the issues raised in the application, it is necessary to examine the plaint as laid and certain orders which have a bearing on the matter.

2. The plaintiff has filed the present suit for specific performance of an agreement to sell dated 5th December, 1995. The plaint as laid contains specific averments laying the foundation for a claim in alternative inasmuch as the plaintiff in the plaint has stated thus:

14. It is, therefore submitted under the above circumstances:

a) That the defendants are liable to be retrained by way of permanent injunction from disposing of or renting out or parting with possession of the said shop and from in any way creating any encumbrances, agreements, transfers, conveyance/sale of the said shop in favor of any third party till the decision of this Court.

b) That the plaintiff to have the sale deed of the said premises executed by the defendants in his favor by a decree for specific performance.

c) If for any reason this Hon'ble court comes to the conclusion that the plaintiff cannot be allowed to the relief of specific performance, then in the alternative, the plaintiff submits that he is entitled to the damages amounting to Rs. 45,00,000/- (Rupees Forty Five Lacs Only) including Rs. 30,00,000/- (Rupees Thirty Lacs Only) paid by him as earnest money to the defendants which amounts he claims from the defendants. Hence this suit.

Thus, in Sub para (c) of para 14 noticed above, it is evident that on facts already pleaded, the plaintiff has clearly stated that in case the court is of the view that the plaintiff is disentitled to the decree for specific performance, then the plaintiff has claimed that he is entitled to damages amounting to Rs. 45.0 lacs inclusive of the sum of Rs. 30.0 lacs which had been paid as earnest money to the defendants. The plaintiff has clearly stated that he claims this amount from the defendants.

3. In the para relating to the valuation of the suit for the purposes of the court fee and jurisdiction, the plaintiff has stated thus:

17. That the values of the suit for the purposes of court fees and jurisdiction is as under:

                                                       Valuation      Court Fee paid
a) For specific relief  or  in the  alternative
   for recovery of Rs.  45,00,000/- (Forty Five
   Lacs) as liquidated  damages  including  the
   earnest and advance money.                       Rs. 45,00,000/-    Rs. 46,264/-
b) For permanent injunction                         Rs.       130/-    Rs.     13/-
 Total court fee paid                                                  Rs. 46,277/-
 

 In view of the above plaint as originally filed, the plaintiff had paid the court fee only on the amount of Rs.  45.0 lacs which was to the tune of Rs.  46,264.00/-.  
 

4. The defendants have filed the written statement in reply to the case set up by the plaintiff and in para 14 of the written statement, the defendants have stated thus:

14. Para 14 of the plaint is wrong and denied. The plaintiff filed the present suit by distorting the facts of the case and with a view to mislead this Hon'ble Court. The plaintiff has committed clear breach of the agreements and is not entitled to seek specific performance. There is no prima facie case in favor of plaintiff. The agreements already stand cancelled and Defendants are free to deal with th property in any manner and the plaintiff is not entitled to any injunction in its favor. The plaintiff is also not entitled to refund of Rs. 30 lacs paid by him as earnest money has already been forfeited on failure of plaintiff to pay the balance sale consideration by 28.02.1996 as per the agreements and under the terms of the agreements. It is further denied that plaintiff is entitled to Rs. 45 lakhs as damages. Instead the Defendants are entitled to damages for breach of contract.

5. It appears that along with the suit, the plaintiff had filed an application bearing I.A. No. 3313/1996 under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908. By an order dated 12th April, 1996, this Court restrained the defendants from disposing of or renting out or parting with possession of the suit property.

On service of the notice in the injunction application, the defendants filed an application bearing I.A. No. 6040/1996 seeking vacation of the ad interim injunction granted by the court. On hearing of these applications, one by the plaintiff i.e. I.A. No. 3313/1996 and the other by the defendants i.e. I.A. No. 6040/1996, this Court by an order dated 5th August, 1996, deemed it appropriate to direct the plaintiff to deposit the entire balance of the sale consideration amounting to Rs. 38,75,000/- in a scheduled bank within two weeks from today to be kept in a fixed deposit receipt for a period of one year and to produce the receipt in this Court before the next date of hearing. The defendants were also directed to apply within two weeks to obtain the requisite clearances from the income tax authorities and permission of the L&DO as required under Clause 6 of the agreement. On 14th of November, 1996, this Court recorded the failure of the plaintiff to pay the balance amount of the sale consideration of Rs. 1,55,00,000/- in terms of the order dated 5th August, 1996 and consequently vacated the interim order dated 12th April, 1996.

6. In the meantime, the defendant No. 2 filed an application bearing I.A. No. 4100/1996 under Order 7 Rule 11 of the Code of Civil Procedure, 1908. The plaintiff also filed an application bearing I.A. No. 134/1998 under Order 6 Rule 17 of the Code of Civil Procedure, 1908 seeking amendment of the plaint. I.A. No. 4100/1996 was taken up for hearing by this Court on the 2nd of December, 1998 and the court noticed that the total sale consideration of the four agreements in respect of which the present suit had been filed was a sum of Rs. 1.85 crores as each agreement postulated sale consideration of Rs. 46,250/-.

7. This Court was of the view that the plaintiff had not valued the suit properly and appropriate court fee had not been paid at the time of its institution, and consequently the plaintiff deserved to be directed to make a correct valuation of the suit. It was held that the question of amendment as sought by I.A. No. 134/1998 whereby the plaintiff was seeking to give up the relief of specific performance would not arise as the plaint was itself not in order. In these circumstances, by the order dated 2nd December, 1998, the plaintiff was given six weeks' time to value the suit properly and to pay the deficit court fee. In terms of the directions, the plaintiff filed the deficit court fee of Rs. 1,36,640/- which was recorded by this Court on the 1st of February, 1999.

8. My attention has been drawn to the issues which were framed by this Court on the 1st of March, 2002 which interalia include the following:

  xxxx               xxxx            xxxx
 

3. Whether the plaintiff has performed his part of the agreements of sale dated 5.12.1995 and has paid the full amount in terms of those agreements to the defendant? If not, what is the effect ? (OPP).
 

4. Whether the plaintiff was and is still ready and willing to perform his part of the agreements of sale? If not, to what effect? (OPP).
 

5. Whether the defendants have failed to perform their part of the agreementsof sale dated 5.12.1995? (OPP).
 

6. Whether the defendants have right to forfeit the money received by them from the plaintiff under the agreements of sale? (OPD).
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9.Whether the plaintiff is entitled to the relief of specific performance of agreements of sale in question? (OPP). 
 

 The plaintiff was permitted to file the examination-in-chief of its witnesses by affidavit, which he has done so. 
 

9. At this stage, the present application being I.A. No. 1919/2005 has been filed under Order 6 Rule 17 of the Code of Civil Procedure, 1908 for amendment of the plaint. Notice of this application was accepted by learned Counsel for the defendants on the 11th of March, 2005. A statement was made on behalf of the defendants that no reply was required to be filed and the same shall be opposed orally. Consequently, counsels for the parties have been heard orally on this application.

10. In the application, the plaintiff has pointed out that in the light of the existing pleadings as contained in para 14 (c) and 17 of the plaint which have been noticed above, the following prayer may be permitted to be added at the end of the prayer 'A':

OR IN THE ALTERNATIVE a decree for damages amounting to Rs. 45,00,000/- (Rupees Forty Five Lakhs Only) Along with pendentelite and future interest @ 12% p.a. be passed in favor of the plaintiff and against the defendants.

11. No other amendment has been sought. It is the case of the plaintiff that in fact, this prayer is already contained in para 14 (c) of the existing plaint only it is being sought to formally place it in the prayer clause of the plaint.

The plaintiff has submitted that this amendment has become necessary as it was not stated so in the existing prayer clause on account of inadvertence.

12. This application has been vehemently opposed on behalf of learned Counsel for the defendants. It is contended that the application has been filed mala fide. It is submitted that the plaintiff had earlier also filed an application bearing I.A. No. 134/1998 under Order 6 Rule 17 of the Code of Civil Procedure, 1908 praying for amendment of the plaint abandoning the relief of specific performance. It is further contended that in view of the pendency of I.A No. 134/1998, the plaintiff has abandoned the prayer for specific performance. It is also contended that if this be the position, then by the amendment the plaintiff is seeking to incorporate the relief of compensation under Section 21 of the Specific Relief Act, 1963.

Mr. M.S. Vinayak, learned Counsel for the defendants has submitted that the relief claimed by the plaintiff in this application is barred in view of the principles laid down by the Apex Court in Jagdish Singh v. Natthu Singh.

Further, according to learned Counsel for the defendants, the relief prayed for by the plaintiff in this application cannot be permitted as it is barred by law. It is submitted that by operation of the law of limitation, the claim of damages of the plaintiff has become barred by limitation and the plaintiff cannot be permitted to incorporate the prayer as sought by amendment as the same is barred by law.

It is lastly contended by learned Counsel for the defendants that the provisions of Order 6 Rule 17 of the Code of Civil Procedure, 1908 are binding and the parties are precluded from seeking amendment of pleas once trial has commenced. In this case issues have been framed and the plaintiff has even filed evidence by way of affidavit and consequently amendment cannot be permitted at this highly belated stage.

In support of this submission, the defendant has placed reliance on the pronouncement of the Division Bench of this Court reported in 72 (1998) DLT 445, Commander I.Kovoor (Retd.) v. Mahalakshmi Land & Finance Pvt. Ltd.

13. I have heard learned Counsels for the parties and considered the rival contentions. There is no dispute that the plaintiff filed the plaint averring a clear claim towards damages as an alternative to the relief of specific performance in para 14 (c) of the plaint. The defendants have in answer stated that he claims this amount from the plaintiff. In the valuation clause contained in para 17 of the plaint, the plaintiff has again clearly given the valuation of his further alternative claim of liquidated damages of Rs. 45.0 lacs.

From the perusal of the record, it is the court fee payable on such claim of Rs. 45.0 lakhs which was actually paid by the plaintiff on the plaint filed in this Court. This had resulted in the objection taken by defendant No. 2 by way of I.A. No. 4100/1996 which was decided by the order dated 2nd December, 1998 giving an opportunity to the plaintiff to make good the deficit court fee in respect of the relief for specific performance which was valued higher.

14. It is well settled that when the plaintiff seeks relief in the alternative, then in accordance with law, the plaintiff is required to pay the court fee on the valuation of the relief which is higher in value as between it and the alternative relief (Ref: AIR 1925 Pat 193 Dasarate Meshy and Ors. v. Jay Chand Sutradhar and Ors. In view of this position in law, undoubtedly, the relief of specific performance which was valued at Rs. 1.85 crores was higher than the alternative relief of liquidated damages of Rs. 45.0 lakhs. Consequently, the plaintiff had been required to make good the deficiency.

15. Since learned Counsel for the defendants has argued at great length that the plaintiff had abandoned the prayer for specific performance, it becomes necessary to examine this submission as well. By an order dated 2nd December, 1998, the plaintiff was required to pay court fee on the relief of specific performance. It is an admitted position on record that the plaintiff has in compliance with this direction deposited the deficit court fee of Rs. 1,36,640/- on court record.

16. I.A. No. 134/1998 which was filed by the plaintiff under Order 6 Rule 17 of the Code of Civil Procedure, 1908 was never pressed nor adjudicated upon by the court. In fact, the effect of the order dated 2nd December, 1998, according to Mr. Anil Airi, learned Counsel for the plaintiff was that the parties treated this application as having been rejected. Issues in the case were framed on 1st March, 2002. As noticed above, most of the issues relate to the pleas in support of the relief of specific performance as prayed in the plaint. Undoubtedly, the prayer made in I.A. No. 134/1998 was never pressed.

In any case on the 20th of September, 2006, a request was made on behalf of the plaintiff for passing of the formal order dismissing this application as withdrawn which was so permitted. Therefore, nothing would turn on the filing of the I.A. No. 134/1998 by the plaintiff.

17. The defendants do not dispute that issues have been framed on the relief of specific performance and the parties have been permitted to lead evidence on the same. So far as principles laid down by the Apex Court in , Jagdish Singh v. Natthu Singh are concerned, it is necessary to note that in this case, the contention of the defendant was that the contract had become incapable of specific performance in view of the fact that during the pendency of the second appeal, the State had initiated proceedings for compulsory acquisition of the suit property and the subject matter of the suit itself ceased to be available.

It had been urged on behalf of the defendant therein, who was the appellant before the Supreme Court, that the power to give compensation as an alternative to specific performance did not extend to a case in which the relief of specific performance had itself become impossible.

The appellant was aggrieved by the order passed in the second appeal at the instance of the plaintiff whereby the court reversed findings of the two courts below and held that the plaintiff/respondent before the Supreme Court was ready and willing to perform his part of contract; that the appellant was the party in breach of contract and therefore, the respondent was entitled to a decree.

The High Court held that even acquisition of the plaintiff's land did not result in extinguishing the plaintiff's rights in totality and that the appellate court could mould the relief appropriately bearing in mind such relief as the circumstances of the case may require or permit. The High Court permitted the plaintiff's right to recover the compensation from the authorities or the defendants.

In these circumstances, the court noticed that under Section 21(5) of the Specific Relief Act, 1963, the compensation cannot be awarded under the section unless the plaintiff had claimed such compensation in his plaint and that the section permitted the plaintiff to incorporate such claim by amendment. So far as the applicability of the provision of Sub-section 5 of Section 21 of the Specific Relief Act, 1963 is concerned, the Apex Court in , Jagdish Singh v. Natthu Singh laid down the following principles:

If the amendment relates to the relief of compensation in lieu of or in addition to specific performance where the plaintiff has not abandoned his relief of specific performance the Court will allow the amendment at any stage of the proceeding. That is a claim for compensation falling under Section 21 of the Specific Relief Act, 1963 and the amendment is one under the proviso to Sub-section (5). But different and less liberal standards apply if what is sought by the amendment is the conversion of a suit for specific performance into one for damages for breach of contract in which case Section 73 of the Contract Act is invoked. This amendment is under the discipline of Rule 17, Order 6, C.P.C. The fact that Sub-section (4), in turn, invokes Section 73 of the Contract Act for the principles of quantification and assessment of compensation does not obliterate this distinction.

Thus, as per the law laid down by the Apex Court, a claim for compensation in lieu of or in addition to specific performance where the plaintiff has not abandoned his relief of specific performance can be permitted to be incorporated by amendment at any stage of the proceedings.

18. In the light of the facts of the present case as noticed above, the plaintiff has not abandoned his relief of specific performance. The relief of compensation as laid down in the para 14(c) of the plaint has been sought in lieu of specific performance in the event that the court holds that the plaintiff is not entitled to specific performance of the agreement. Therefore, the contention on behalf of the defendant that the amendment sought by the plaintiff cannot be permitted under the provision of Sub-section 5 of Section 21 of the Specific Relief Act, 1963 has to be rejected.

19. The other two objections on behalf of the defendant firstly, is to the effect that the amendment as prayed for by the plaintiff is barred by law inasmuch as the same is barred by limitation and secondly, that the application is also barred in view of the amended provisions of Order 6 Rule 17 of the CPC, 1908 whereby the amendment will not be allowed once the trial has commenced, deserve to be considered together.

20. For the purposes of appreciating the nature of the amendment, it becomes necessary to examine the plaint as laid. The plaintiff has already laid the factual background for his claim of damages and has clearly spelt out its claim and prayer in para 14(c) of the plaint. Para 17(a) notices the court fee payable on such claim. The defendant has already replied to these pleas. Thus, by the proposed amendment, the plaintiff is seeking liberty only to repeat the prayer, which it had already made in para 14(c), in the prayer clause of the plaint.

In the light of these facts, I find no force in the submission on behalf of the defendant that by the proposed amendment, the plaintiff is seeking to make out any new case. No amendment so far as the factual narration is concerned or in the prayer of the plaint has been sought. In fact, the alternative prayer of the plaintiff is also substantively contained in the plaint as it stands. The proposed amendment is really in the nature of a re-arrangement of the submissions of the plaintiff already made in the plaint. The plaintiff is at best seeking to lift the prayer already contained in para 14(c) of the plaint by repeating it in the prayer clause as well.

21. It has been pointed out that the plaintiff, in the existing pleadings, has already prayed that the amount of Rs. 30,00,000/- which has been paid to the defendants as earnest money should form part of the damages.

In this behalf, issue No. 6, as noticed above as to whether the defendants had any right to forfeit such amount of the plaintiff, stands framed. The relief of damages would really be in the nature of the consequential effects of the findings which are returned in this issue.

Therefore, no prejudice results to the defendants if the proposed amendment is permitted.

22. So far as the answer to the specific plea that the claim of damages is barred by limitation and cannot be permitted at this stage is concerned, it becomes necessary to examine the various judicial pronouncements wherein the Apex Court has been required to consider such pleas. The principles governing an amendment which may be permitted even after the expiry of the statutory period of limitation were laid down by the Privy Council in its judgment reported in AIR 1921 PC 50 entitled Charan Das v. Amir Khan. In this case, the Privy Council laid down the principles thus:

That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are out-weighed by the special circumstances of the case.

23. Subsequently, in the celebrated pronouncement of the Supreme Court entitled L.J. Leach & Co. Limited v. Jardine Skinner & Co., the court was considering an amendment sought by the appellant who had filed a suit for damages against the respondents on the ground that the respondents had actually imported the goods which they were required to do so as agents of the appellant and that despite the import, had refused to deliver them to the appellant. The suit was dismissed by the Trial Court on the ground that the parties stood not as principal and agent but stood in the relationship of seller and purchaser and that the title in the goods could only pass to the appellant when the respondents appropriated them to the appellant's contractor. In the appeal before the Apex Court, the appellant applied for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for non-delivery of the goods. All allegations necessary for sustaining such a claim were already present in the plaint and the only allegation which was lacking, was that the appellant was, in the alternative, entitled to claim goods for breach of contract for non-delivery of goods. The admitted position, however, was that a fresh suit, on the amended plaint, was barred by limitation on the date of the application.

The respondents raised the same objections as have been urged by the defendants herein before this Court in the present case.

Upon consideration of the matter and the facts noticed above, the court held thus:

...It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interests of justice.

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In the present case, apart from the contents of the plaint already set out, there is the fact that the defendants cancelled the contract without strictly complying with the terms of Clause 14. The ground on which they repudiated the contract was that the second plaintiff has assigned his interests to the first plaintiff; but the record shows that subsequent to the assignment the defendants had business transactions with both the plaintiffs and therefore the ground for cancellation appears to have been a mere device to deprive the plaintiffs of the benefits of the orders which they had placed. We are of opinion that the justice of the case requires that the amendment should be granted.

24. It would be useful to also notice the observations of the Apex Court in , Pirgonda Honganda Patil v. Kalgonda Shidgonda Patil wherein the court considered an objection to the amendment on the ground that the same amounted to a new case and a new cause of action. In this case, the Apex Court laid down the principles which would govern exercise of discretion as to whether the court ought to permit an amendment of the pleadings or not. The court approved observations of Batchelor, J in 33 Bombay 644 when he laid down the principles thus:

All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties... but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defense to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?

Applying these principles, the court held that it was not possible nor advisable to encase a discretionary power within the straitjacket of an inflexible formula. Noticing that the quantity and quality of the reliefs sought remained the same even after amendment of the plaint, the court observed that as to whether the reliefs should be granted or not was different matter on which no opinion was required to be expressed at the stage of consideration of the amendment application. The ultimate test laid down was as to whether the amendment could be allowed without injustice to the other side or can't it not and whether the amendment is necessary for the purpose of determining the real questions in controversy between the parties.

25. The Apex Court has repeatedly held that the power to allow an amendment is undoubtedly wide and may be appropriately exercised at any stage in the interests of justice, the law of limitation notwithstanding. In this behalf, in Smt. Ganga Bai v. Vijay Kumar, the court held thus:

22. The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the Court.

26. Again in entitled Ganesh Trading Company v. Moji Ram, the court laid down the principles thus:

4. It is made clear from the foregoing summary of the main rules of pleadings and provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its Counsel is inefficient in setting out its case initially the short coming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.

The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The Courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defense which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favor of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defense taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement.

27. But undoubtedly, every case and every application for amendment has to be tested in the applicable facts and circumstances of the case. As the proposed amendment of the pleadings amounts to only a different or an additional approach to the same facts, the Apex Court has repeatedly laid down the principle that such an amendment would be allowed even after the expiry of statutory period of limitation.

28. In this behalf, in entitled A.K. Gupta & Sons v. Damodar Valley Corporation, the court held thus:

The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit or new case or cause of action is barred: Weldon v. Neale (1887) 19 QBD 394. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation.

29. In entitled B.K.N. Pillai v. P. Pillai and Anr., the court was called upon to consider objections of the plaintiff to an application seeking amendment of the written statement. The plaintiff had sought eviction of the defendant on the ground of his being a licensee. The defendant pleaded in his written statement that he was not a licensee but a lessee. In the application for amendment to the written statement filed by the defendant, he merely sought to incorporate a plea that in case he is not held to be a lessee, he was entitled to the benefit of Section 60(b) of the Easement Act, 1882. This was opposed by the plaintiff on grounds that the same amounted to withdrawal of an admission and that such withdrawal would result in irretrievable prejudice to the plaintiff. The Apex Court noticed that the principles applicable to allowing amendment of the written statement were more generous subject to the exception that the proposed amendment should not subject the plaintiff to any injustice or withdrawal of an admission made. It was held that all amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided that the proposed amendment does not alter to substitute a new cause of action on the basis of which the original lis was raised or defense taken. No amendment could be permitted which amounted to or relates to defeating a legal right accruing to the opposite party on account of lapse of time and that the delay in filing the application for amendment of the pleadings should be properly compensated by costs. The error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of the plaint or the written statement. In this background, the Apex Court held that the alternative plea sought to be incorporated by the defendant in the written statement was in fact, the extension of the plea of the plaintiff and rebuttal to the issue regarding liability of the appellant of being dispossessed on proof of the fact that he was a licensee and liable to be evicted in accordance with law. The mere fact that the appellant had filed the application after a prolonged delay could not be made a ground for rejecting its prayer more particularly when the respondent/plaintiff could be compensated by costs. The court also held that such amendment did not amount to withdrawal of an admission and was unlikely to cause irretrievable prejudice to the respondent. Accordingly, this amendment application was allowed.

30. In recent judgments , G.Nagamma and Anr. v. Siromanamma and Anr., the court considered the proposed amendment of the plaint and noticing that neither cause of action would change nor the relief would be materially affected, allowed the same. The court in this case noticed that in the plaintiff's suit for specific performance, the plaintiff was entitled to plead even inconsistent pleas and that in the present case, the plaintiffs were seeking only alternative reliefs. It appears that the plaintiffs had filed a suit for specific performance of an agreement of re-conveyance. By the application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 for amendment of the plaint, the appellants were pleading that the transactions of execution of the sale deed and obtaining a document for re-conveyance were single transactions viz. mortgage by conditional sale. They also wanted to incorporate an alternative relief to redeem the mortgage. At the end of the prayer, the plaintiff sought alternatively to grant of a decree for redemption of the mortgage. This amendment was permitted by the Apex Court.

31. In Pankaja and Anr. v. Yellappa (Dead) by L.Rs. and Ors., the court held that it was in the discretion of the court to allow an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 seeking amendment of the plaint even where the relief sought to be added by amendment was allegedly barred by limitation. The court noticed that there was no absolute rule that the amendment in such a case should not be allowed. It was pointed out that the court's discretion in this regard depends on the facts and circumstances of the case and has to be exercised on a judicial evaluation thereof. It would be topical to notice the observations of the Apex Court in this pronouncement in extenso. The principles were laid down by the Apex Court thus:

12. So far as the court's jurisdiction to allow an amendment of pleadings is concerned, there can be no two opinions that the same is wide enough to permit amendments even in cases where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held that the dominant purpose of allowing the amendment is to minimise the litigation, therefore, if the facts of the case so permit, it is always open to the court to allow application in spite of the delay and laches in moving such amendment application.

13. But the question for our consideration is whether in cases where the delay has extinguished the right of the party by virtue of expiry of the period of limitation prescribed in law, can the court in the exercise of its discretion take away the right accrued to another party by allowing such belated amendments.

14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.

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16. This view of this Court has, since, been followed by a three-Judge Bench of this Court in the case of T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board. Therefore, an application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that the same is barred by limitation, on the contrary, application will have to be considered bearing in mind the discretion that is vested with the court in allowing or disallowing such amendment in the interest of justice.

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18. We think that the course adopted by this Court in Ragu Thilak D. John case applies appropriately to the facts of this case. The courts below have proceeded on an assumption that the amendment sought for by the appellants is ipso facto barred by the law of limitation and amounts to introduction of different relief than what the plaintiff had asked for in the original plaint. We do not agree with the courts below that the amendment sought for by the plaintiff introduces a different relief so as to bar the grant of prayer for amendment, necessary factual basis has already been laid down in the plaint in regard to the title which, of course, was denied by the respondent in his written statement which will be an issue to be decided in a trial. Therefore, in the facts of this case, it will be incorrect to come to the conclusion that by the amendment the plaintiff will be introducing a different relief.

32. In the case before this Court, the defendants have objected to the amendment on the ground that the relief of damages sought by amendment was barred by limitation.

As noticed above, the plaintiff has already made a prayer in para 14(c) of the plaint and has even placed the valuation of the relief before this Court. It has been stated that by inadvertence, this very prayer was formally not incorporated in the prayer clause and that by the proposed amendments, the plaintiff is only seeking to repeat the same in the prayer clause.

In the light of the afore-noticed principles laid down by the Apex Court, there is no absolute prohibition to grant of permission to amend a plaint on the ground that the same was barred by limitation. Discretion is conferred on the court to permit even such a claim for circumstances to be considered by the court. In the instant case, the factual background has already been laid before this Court. Even a prayer is contained in para 14 of the existing plaint and court fee stands paid. The issues with regard to the substantive component of the damages prayed for by the plaintiff have also been framed. In this view of the matter, interest of justice merit that the plaintiff be permitted to amend the plaint and to incorporate the alternative relief.

33. So far as the last submission of the defendant based on the amendment to provision of Order 6 Rule 17 of the Code of Civil Procedure, 1908 is concerned, it would be useful to consider the amended provision of Order 6 Rule 17 of the Code of Civil Procedure, 1908 and the proviso thereto which 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.

34. This Court has had occasion to consider the impact of the amended provisions of Order 6 Rule 17 of the Code of Civil Procedure, 1908. In the judgment reported at 2006 (32) PTC 78, International Tractors Ltd. v. Punjab Tractors Ltd., the court noticed thus:

5. The law of amendment has received liberal interpretation in the recent times, but in view of the amended provisions of Order 6 Rule 17 CPC, the Courts have been cautioned by the Legislature so as not to exercise the discretion vested in the Court too liberally and literally. The present application is the second application for amendment filed by the plaintiff in the present case. The Court can allow amendment of pleadings at any stage of the proceedings but the proviso clearly states that no application for amendment shall be allowed after the trial has commenced and unless the Court comes to the conclusion that in spite of due diligence the parties could not have raised the matter before commencement of the trial. In the present case, it cannot be stated that plaintiff has acted with due diligence at any stage of the suit. On the contrary the plaintiff with reference to the same documents has already moved applications for amendment which were partially allowed and the present application again is found and has reference to the same document. The plaintiff is seeking to establish now an entire new cause of action and a new relief, which are bound to affect the defendant prejudicially. Furthermore, it would even change the nature of the suit.

xxxxx xxxxx xxxxx

9. In the present case, the plaintiff had ample opportunity to claim this relief right from the date of very institution of the suit which was filed in the year 2003. Even in the Deed of Assignment of 13th August, 2004 is taken as the basis for seeking these amendments, the plaintiff had admittedly filed an application for amendment of this plaint on earlier occasion also. Either the plaintiff could consciously have not taken up such pleadings in the application for amendment or could not have claimed any relief against the defendant in regard to violation of his exclusive rights of exploitation and infringement of the confidential information of the plaintiff. This is a very vital factor and cannot be ignored by the Court. A party when approaches the Court of law is expected to act with responsibility and cannot take the procedure of the Court as a hand made to frustrate the very object of the civil court for expeditious disposal of the suit. In the present case, the plaintiff has not given any cause much less a sufficient cause for not claiming these reliefs in the earlier amendment application. The law comes to the rescue of a litigant who acts with due diligence and does all that of demanded if him in law and equity. In the present case, the applicant has failed to satisfy any of these ingredients. The amendments sought for by the plaintiff are, in no way, essential for determining the controversies raised and reliefs prayed for by the plaintiff in the suit. Plaintiff having not claimed any of these reliefs for all this time, now cannot be permitted to materially alter the entire nature of the suit to the serious prejudice of the defendant.

35. The Apex Court was called upon to examine the validity of the amendments to the Code of Civil Procedure in Salem Advocate Bar Association v. Union of India. So far as the provisions of Order 6 Rule 17 of the Code of Civil Procedure are concerned, in para 26 of the pronouncement reported at , it was observed that:

26. Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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 proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if 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. There is no illegality in the provision.

36. In Kush Saigal v. MC Mitter, the court stated that since the natural presumption is that but for the proviso, the enacting part of the section would have included the subject matter of the proviso, the enacting part has to be given such a construction which would make the exceptions carved out by the proviso necessary and a construction which would make the exceptions unnecessary and redundant should be avoided.

37. From the foregoing discussion, it is apparent that the plaintiff has in fact raised the matter in the plaint as filed and there could possibly be no prohibition under the amended provisions of Order 6 Rule 17 of the Code of Civil Procedure, 1908. In any case, the present case is a fit case meriting exercise of discretion by the court under the provisions of Rule 17 of the Order 6 of the Code of Civil Procedure, 1908.

38. In view of the above, this application deserves to be allowed. Accordingly, the plaintiff is permitted to amend the plaint as prayed for. The amended plaint is directed to be taken on record.