JUDGMENT : ( 1. ) THE petition is for revision of an order dated 10-4-1985 whereby, in civil suit No. 33-A of 1978 instituted by the petitioners against the respondents, Second additional District Judge, Vidisha, dismissed an application for amendment of the plaint. ( 2. ) THE case of the petitioners-plaintiffs was that, on 29-6-1972, the respondents defendants entered into an agreement to sell certain fields to them for a consideration of Rs. 38,332/- out of which a sum of Rs. 5000/- was paid at the time of the agreement and the balance was agreed to be paid by 6 annual instalments commencing from 30-7-1973. The last instalment of Rs. 4,381/- payable on 30-7-1978 was to be paid before the sub-Registrar at the time of registration of the sale-deed. The term No. 7 of the agreement provided that the petitioners would not be entitled to alienate the fields or incur loan on security thereof without consent of the respondents without getting the sale-deed executed in their favour and the respondents would also not be entitled to do so. Possession of the fields was also delivered to the petitioners. The first five instalments were paid by the petitioners as per terms of the agreement. In the month of july 1972, they called upon respondents to accept the amount of the last instalment before the Sub-Registrar and execute the sale deed as per terms of the agreement but, on 29-6-1972, they declined to do so unless the above-mentioned term No. 7 of the agreement was stated therein. Notices were also sent by them to the respondents, but in vain. The term No. 7 of the agreement was operative only for the period till execution and registration of the sale-deed, and therefore, it was not necessary to state it in the sale-deed. As the respondents were not prepared to execute the sale-deed, unless that term was incorporated therein, the petitioners claimed a declaration that the said term was binding only till execution and registration of the sale-deed and it was not necessary to incorporate it in the sale-deed. They further claimed a perpetual injunction restraining the respondents from interfering with their possession over the fields. ( 3.
They further claimed a perpetual injunction restraining the respondents from interfering with their possession over the fields. ( 3. ) AT the stage of evidence, an application for amendment of the plaint was filed on behalf of the petitioners who thereby wanted to plead that they were and would ever be prepared to get the sale-deed executed and registered and that, in the alternative, they claimed specific performance of the agreement of sale. The Trial court was of the view that the claim for specific performance having become barred by time the amendment could not be allowed. Accordingly, it dismissed the application vide the impugned order. ( 4. ) IN the matter of amendment of pleading, the general rule, no doubt, is that a party is not allowed by amendment to set up a new case on a new cause of action, particularly when a suit on the new case or cause of action is barred by time, 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 is allowed even after expiry of the statutory period of limitation. The expression cause of action in the present context means a new claim made on a new basis constituted by new facts. The words new case have been understood to mean new set of ideas. No amendment can be allowed to introduce a new set of ideas to prejudice of any right acquired by the opposite party by lapse of time. Decision of their Lordships of the Supreme Court in the case of A K. Gupta and Sons Ltd. vs. Damodar Valley Corporation, AIR 1967 SC 96 , may be referred to in that connection. Referring to Rules 2, 4, 5, 6, 7 and 17 of order in of the Code of Civil Procedure in the case of M/s Ganesh Trading Co. vs. Moji ram, AIR 1978 SC 484 .
Referring to Rules 2, 4, 5, 6, 7 and 17 of order in of the Code of Civil Procedure in the case of M/s Ganesh Trading Co. vs. Moji ram, AIR 1978 SC 484 . Their Lordships observed - " It is clear from foregoing summary of the main rules of pleadings that 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 shortcoming 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. 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. 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.
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. " On the principle stated in the last mentioned case, as rightly observed by a Division bench of Allahabad High Court in the case of Narendra Bahadur Singh vs. Baijnath singh and another (AIR 1981 Allahabad 410) where there is a defect in the cause of action, the amendment application can be allowed to rectify the mistake but, where there was no cause of action for the suit and valuable right has accrued to the other side on account of efflux of time, the Court should ordinarily refuse the prayer for amendment. ( 5. ) SECTION 16 (c) of the Specific Relief Act specifically lays down that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract. In a suit for specific performance of a contract, the plaintiff cannot succeed if he fails to fulfil any of these two obligations enjoined by law. In the absence of such an averment in the plaint as required by section 16 (c) ibid, the plaintiff cannot be held to have pleaded cause of action for the relief of specific performance. In other words the absence of such an averment, the plaint would not disclose cause of action for the claim for specific performance. In that connection, reference may be made to decision in the case of Narendra Bahadur Singh (supra) wherein reliance was placed on decisions of their Lordship of the Supreme Court in the case of Prem Raj vs. D. L. F. Housing and Construction Private Ltd (AIR 1968 S. C. 1355) and in the case of Ouseph Verghese vs. Joseph Aley, (1969) 2 S. C. 539 ). ( 6. ) IN the present case, the plaint did not contain such an averment as required by section 16 (c) of Specific Relief Act. That being so, it did not have a cause of action for the relief of specific performance. The relief of specific performance was also not claimed.
( 6. ) IN the present case, the plaint did not contain such an averment as required by section 16 (c) of Specific Relief Act. That being so, it did not have a cause of action for the relief of specific performance. The relief of specific performance was also not claimed. By the date the plaintiffs filed the amendment application in question, the claim for specific performance admittedly became barred by time and valuable rights accrued in favour of the other party. In the case of Narendra Bahadur Singh (supra), although suit was instituted for specific performance, the plaint did not contain the necessary averment in terms of section 16 (c) of the Specific Relief Act. It was held that omission of the averment that the plaintiff was ready and willing to perform part of the contract rendered the plaint without cause of action and the claim for specific performance was, therefore, bound to fail. By a subsequent amendment, an assertion was made that the plaintiff was ready and willing to perform the remaining part of the contract. By the time the application for amendment was made, claim for specific relief had become barred by time, it was held that the amendment-application could riot be allowed. The following observations made in that case are note-worthy "in the present case, omission of the averment in the plaint that the plaintiff is ready and willing to perform his part of the contract rendered the plaint without a cause of action for a suit for specific performance. By the time the application for amendment was made, a fresh suit for specific relief had become barred by time. A valuable right had accrued in favour of the defendant by efflux of time. He could not be deprived of that right by allowing an amendment in exercise of powers under Order 6, Rule 17 Civil p. C. The order of the court below allowing the amendment cannot be sustained. " Thus, I conclude that the amendment-application in question could not be allowed and was rightly dismissed by the trial Court. ( 7. ) IN the result, the revision petition is dismissed. In the circumstances, the parties are left to bear their own costs as incurred. Revision Petition dismissed.