Surinder Kumar And Anr vs Smt. Kaushalya Devi
2022 Latest Caselaw 7421 P&H

                      205

                                IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                               CHANDIGARH
                                                     -.-
                                                            CR-1250-2019 (O&M)
                                                         Date of Decision : 21.07.2022


                      Surender Kumar & Another                                            ...Petitioners

                                                         versus

                      Smt. Kaushala Devi                                                 ...Respondent



                      CORAM :          HON'BLE MRS. JUSTICE ALKA SARIN



                      Present :        Mr. Chanderhas Yadav, Advocate for the petitioners.

                                       Mr. Sanjay Mittal, Advocate for respondent No.1



                      ALKA SARIN, J. (Oral)

The present revision petition has been filed under Article 227 of

the Constitution of India challenging the order dated 30.01.2019 (Annexure

P-5) whereby an application filed under Order 6 Rule 17 of the Code of

Civil Procedure, 1908 (hereinafter referred to as 'CPC') by the petitioners

for amendment of the plaint has been dismissed.

The brief facts relevant to the present lis are that the plaintiff-

petitioners filed a suit for specific performance of agreement to sell dated

15.04.2013 as well as for declaration to the effect that legal notice dated

19.08.2013 regarding the termination of agreement to sell dated 15.04.2013

was illegal, null and void. In the plaint, the necessary averments were made.

It was also averred that stamp papers worth Rs.1,19,000/- had also been

purchased on 24.07.2013 for the execution of the sale deed. However, the TRIPTI SAINI 2022.07.22 17:06 I attest to the accuracy and authenticity of this document CR-1250-2019 (O&M) -2-

formal paragraphs stating that the plaintiffs were ready and willing to

perform their part of the contract were inadvertently left out.

Learned counsel for the petitioners would contend that the

amendment is only formal in nature and that from a plain reading of the

plaint it was clear that it had been averred that the petitioner were ready and

willing to perform their part of the contract. It is further the contention that

no further evidence is required to be led on this point. In support of his

arguments, learned counsel has relied upon a judgment of the Supreme

Court passed in the case of Gajanan Jaikishan Joshi Vs. Prabhakar

Mohanlal Kalwar [1990 (1) SCC 166].

Per contra, the learned counsel for respondent No.1 has stated

that the amendment has rightly been rejected as the same was filed beyond

the period of limitation. It is further the contention that readiness and

willingness is an essential ingredient to be averred and proved as per Section

16(c) of the Specific Relief Act, 1963.

Heard.

In the present case, a reading of the plaint reveals that it has

been averred that in order to get the sale deed executed the plaintiff-

petitioners had also purchased stamp papers worth Rs.1,19,000/-. The formal

words that the plaintiffs were ready and willing to perform their part of the

contract were inadvertently left out. In a similar situation, in the case of

Gajanan Jaikishan Joshi (supra), their Lordships of the Supreme Court

have held as under :-

TRIPTI SAINI
2022.07.22 17:06
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authenticity of this document
                       CR-1250-2019 (O&M)                                   -3-

"4. In the leading case of Pirgonda Hongonda Patii v.

Kalgonda Shidgonda Patil and Others, AIR 1957 SC

363 a Bench comprising three learned Judges of this

Court laid down the principles which should govern the

question of granting or disallowing amendments. It was

held by this Court that all amendments ought to be

allowed which satisfy the two conditions: (a) 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.

Amendments 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 defence to the claim.

5. In L.J. Leach & Co. & Anr. v. Messrs Jardine

Skinner & Co., AIR 1957 SC 357 another Bench TRIPTI SAINI 2022.07.22 17:06 I attest to the accuracy and authenticity of this document CR-1250-2019 (O&M) -4-

comprising three learned Judges of this Court held that

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.

6. If these principles are to be followed, there is little

doubt that the learned judge was in error in rejecting

the application for amendment made by the appellant. In

the present case no fresh cause of action was sought to

be introduced by the amendment applied for. All that the

appellant sought to do was to complete the cause of

action for specific performance for which relief he had

already prayed. It was only that one averment required

in law to be made in a plaint in a suit for specific

performance in view of the provisions of sub-section (c)

of section 16 of the Specific Relief Act 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 TRIPTI SAINI 2022.07.22 17:06 I attest to the accuracy and authenticity of this document CR-1250-2019 (O&M) -5-

amendment and hence, no question of causing any

injustice to the respondent on that account arose."

Keeping in view the fact that no further evidence needs to be

led, as stated by the learned counsel for the plaintiffs-petitioners, and in

order to do complete justice between the parties, the present revision petition

is accepted, the impugned order dated 30.01.2019 (Annexure P-5) is set

aside and the amendment application filed by the plaintiff-petitioner is

allowed.

Pending applications, if any, also stand disposed off.

                      July 21, 2022                                       (ALKA SARIN)
                      tripti                                                 JUDGE

NOTE : Whether speaking/non-speaking : Speaking Whether reportable : YES/NO

TRIPTI SAINI 2022.07.22 17:06 I attest to the accuracy and authenticity of this document