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2000 DIGILAW 288 (KER)

Joseph v. Sivaraman Nair

2000-06-05

M.R.HARIHARAN NAIR

body2000
Judgment :- M.R. Hariharan Nair, J. The revision petitioner in both these cases is the plaintiff in a suit for specific performance. Through relief 'A* he prayed for a direction to the first defendant to fulfill his part of the contract dated 27.7.1992 and direct the second defendant to execute a sale deed in respect of the plaint schedule property in favour of the plaintiff at the cost of plaintiff. On noticing that the scheduled property was sold away in court auction in another case and purchased by a stranger and that there was little scope for getting specific performance in the circumstances, the plaintiff moved for amendment of relief 'A* aforementioned as follows: "'Allowing the plaintiff to realise an amount of Rs. 95,000/- with interest at 12% from the date of suit till realisation from the second defendant and his assets. On noticing that the aforesaid application was filed beyond three years from the date of agreement between the plaintiff and the first defendant which is 27.7.1992, the court below dismissed the application. According to the court below, the claim for recovery of money had become barred by limitation as on the date of the amendment application, namely, 23.9.1998 and hence the prayer for the amendment was inadmissible. 2. The learned counsel for the revision petitioner submitted that in the instant case the amendment sought was for an alternative relief in respect of the very same cause of action as alleged in the plaint and that in the circumstances, the court below went wrong in disallowing the amendment sought for. Reliance was placed in this regard on the decision in A.K. Gupta & Sons v. Damodar Valley Corporation (AIR 1967 SC 96). 3. The learned counsel for the respondents, on the other hand, relied on the decisions taking the view that after the cause of action has become barred, an amendment cannot be allowed as it will affect the right of the defendants to plead limitation. 4. The plaintiff s case is that the plaint schedule property of 4 cents in which an Oil Mill is conducted by the second defendant as owner was sold to the first defendant on 20.6.1990 for a price of Rs. 4. The plaintiff s case is that the plaint schedule property of 4 cents in which an Oil Mill is conducted by the second defendant as owner was sold to the first defendant on 20.6.1990 for a price of Rs. 1,55,000/-; that at the time of the said transaction, the property was outstanding on mortgage in favour of Union Bank of India pursuant to a loan transaction and that it was while things were like this that the first defendant agreed to sell the property to the plaintiff as per agreement dated 27.7.1992. The plaint, thus, contains a prayer for specific performance. It is clearly averred that the amendment" for recovery of an amount of Rs. 95,000/- received by the second defendant on various dates from 12.8.1992 to 20.3.1993 was necessitated on finding that the property was sold away in court auction for recovery of the dues to the creditor bank of the second defendant. 5. Under S.22(1) of the Specific Relief Act 1963, any person suing for specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for possession or partition and separate possession of the property in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him in case his claim for specific performance is refused. Here also there is an embargo provided under S.22(2) to the effect that no relief of refund of deposit or earnest money shall be granted by the court unless it has been specifically claimed. The proviso to S.22(2) further directs that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such relief. 6. What is clear from the aforesaid provision is that the court will be justified in granting the relief of refund in cases where specific performance is found inadmissible only if there is a specific claim for such relief and that the court has always the power to allow the amendment of the plaint for inclusion of such reliefs. 6. What is clear from the aforesaid provision is that the court will be justified in granting the relief of refund in cases where specific performance is found inadmissible only if there is a specific claim for such relief and that the court has always the power to allow the amendment of the plaint for inclusion of such reliefs. It is also clear that the inclusion of such an alternative relief does not at all alter the cause of action for the suit as what is involved is only addition of a provision for an alternative remedy of a lesser nature. 7. The question for consideration then is whether the general rule that a party cannot be allowed to amend the plaint to set up a new case of a new cause of action is applicable to such a case where without altering the cause of action an additional relief is also sought to be included. 8. The case law relevant on the aspect may be referred to here. T.L. Muddukrishna and Another v. Lalitha Ramachandra Rao ((1997) 2 S.C.C. 611) is a case where pursuant to an agreement for sale stipulating the date of performance as 28.5,1989, notice was issued and the respondent repudiated the contract through notice dated 6.11.1989. Suit was filed by the appellant on 21.4.1992 not for 'specific performance' but for mandatory injunction directing respondent to comply with the requirements in the agreement. During the pendency of the suit, he filed an application dated 5.11.1992 seeking amendment of the plaint for including prayer for specific performance of the agreement. It was held that the amendment was sought for after the expiry of three years from 28.5.1989 and as such, the relief was barred by limitation, as provided under Art.54 of the Limitation Act and that in the circumstances, the amendment sought for was inadmissible. It may be mentioned here that though the suit arose pursuant to an agreement for sale, the plaintiff had not sought for specific performance originally and such a claim was sought to be brought forth only through the amendment. In other words, there was a change of cause of action for the relief and it was for that reason that the Supreme Court disallowed the amendment. 9. In Munilal v. Oriental Fire & General Insurance Co. In other words, there was a change of cause of action for the relief and it was for that reason that the Supreme Court disallowed the amendment. 9. In Munilal v. Oriental Fire & General Insurance Co. Ltd., ((1996) 1 SCC 90), the question that arose was whether in a suit for mere declaration without seeking consequential relief, amendment can be allowed seeking consequential relief after the suit was barred by limitation and during the pendency of the appeal from the decree of dismissal on the ground of want of a prayer for consequential relief. The court found that though to render substantial justice without causing injustice to the other party or violating fair play, Court would be entitled to grant proper relief even at the stage of appeal, granting of amendment sought for in the case seeking to introduce alternative relief of mandatory injunction for payment of specified amount was bad in law in so far as the alternative relief was available to be asked for when the suit was filed; but was not made. In the circumstances, he cannot be permitted to amend the plaint after the claim was barred by limitation during the pendency of the proceeding in the appellate court. 10. The facts of the said case are different in so far as no question of specific performance was involved there, and as such, there was no specific provision as available in S.22 of the Specific Relief Act enabling amendment of the plaint to provide for alternative relief. 11. A.K. Gupta & Sons v. Damodar Valley Corporation (AIR 1967 SC 96) is also relevant on the point. The question that arose there was whether in the suit for declaration which relief was found inadmissible, amendment of plaint praying for 'decree for the sum specified in the plaint or such amount as was to be determined after accounts' was admissible. The question was answered by the Supreme Court in the affirmative though as on the date of application for amendment a suit for money under the contract had become barred. The question was answered by the Supreme Court in the affirmative though as on the date of application for amendment a suit for money under the contract had become barred. While upholding the general rule that such an amendment would not be allowed if it involves change of cause of action, it was found that where the amendment does not constitute the addition of a new cause of action or raise a different case; but only seeks to introduce a different or additional approach to the same facts, the amendment can be allowed even after the expiry of the statutory period of limitation. 12. Though not specifically with reference to amendment involving relief under the Specific Relief Act, the decision in L.J. Leach & Co. Ltd., v. Jardine Skinner & Co. (1957 S.C.R.438) also is relevant here as it throws light on the aspect of admissibility of claims for amendment in pending suits. That was a case where in a suit for damages for conversion against respondent and during the pendency of appeal before the Supreme Court, the appellants applied for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for non-delivery of goods. The claim had become barred by limitation with reference to the date of cause of action at the time. However, all the allegations necessary for sustaining a claim for damages for breach of contract were already available in the plaint and the only allegation lacking was that the appellants were, in the alternative, entitled to claim damages for breach of contract by the non-delivery of the goods. Notwithstanding the fact that a fresh suit on the amended claim would have been barred by limitation on the date of application, the Supreme Court allowed the amendment sought for. It was held that the fact that a fresh suit would be barred by limitation at the time, though a factor to be taken into consideration in the exercise of the discretion as to whether the amendment should be ordered or not, does not affect the power of the court to allow the amendment if that is required in the interests of justice. 13. 13. In view of the aforesaid decisions and taking into consideration the direction in S.22 of the Act itself that amendment, in cases for specific performance, to include alternative claim for refund is expected to be allowed by the courts and also taking into account the fact that all the pleadings required to sustain the claim for refund already exists in the plaint filed in the case with the prayer for specific performance, I am of the view that the amendment sought for deserves to be allowed albeit a fresh suit for refund would have been barred at the time when the amendment application was filed. Denial of relief would certainly amount to negation of justice on the facts and circumstances of the case. Courts should be liberal in allowing amendments in such cases because of the specific direction contained in the proviso to S.22 of the Specific Relief Act already mentioned in paragraph-5 above. 14. In the circumstances, C.R.P. No. 2504/98 is allowed and the impugned order is set aside. The amendment prayed for by the plaintiff will stand allowed. The court below will carry out the amendment and proceed with the suit in accordance with law. 15. In C.R.P. No. 2548/98, the challenge is with regard to the dismissal of the application seeking attachment of the property of the 2nd defendant invoking 0.38 R.5 of the Code of Civil Procedure. A perusal of the impugned order shows that the only reason for rejecting the prayer was the fact that the amendment of the plaint sought by the plaintiff for inclusion of the claim for refund had been disallowed. Now that C.R.P. No. 2504/98 is allowed and the amendment is to be brought into the plaint, the basis of the impugned order goes. The attachment petition deserves to be considered on the merits in view of the changed circumstances. Hence C.R.P. 2548/98 is also allowed and the order passed therein on 20.11.1998 is set aside. I.A. No. 675/98 is remitted to the court below for fresh disposal in accordance with law.