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2003 DIGILAW 332 (CAL)

Rathindra Nath Chattopadhyay v. Ratna Roy Gupta

2003-07-09

GIRISH CHANDRA GUPTA

body2003
Judgment This application under Article 227 of the Constitution is directed against an order passed in revision under Section 115A of the Code of Civil Procedure. The facts of the case briefly stated are as follows:- A piece of land measuring more or less 2 cottahs situate in the District of 24-parganas comprised in Dag No. 546 and Khatian No. 130 belongs to the defendant. Pursuant to an agreement entered into between the defendant and the plaintiff, the plaintiff constructed a 4storied building thereat. The arrangement between the parties was that a portion of the building shall be allotted to the plaintiff and a portion thereof shall be allotted to the defendant. There is a written agreement between the parties dated 3.1.1988 which provides that the defendant shall be liable to convey by a registered deed the portion or portions allotted and or to be allotted to the defendant. The case of the plaintiff is that the building has duly been constructed and the parties have duly been given their respective portions of which they are in possession. It is alleged that on 27.1.1995 the plaintiff requested the defendant to execute the deed of conveyance which the defendant failed, neglected and/or refused to do. Accordingly, Title Suit No. 417 of 1995 was filed on 30.9.1995 claiming principally the following reliefs: (a) For a decree, declaring the plaintiff is entitled to 200 sq. ft. on the ground floor and the entire first floor flat as well as 3rd floor and the upper floor and roof of the building constructed on the land of the defendant described in the schedule hereunder written; (b) For Mandatory injunction directing the defendant to execute and register the deed of conveyances in favour of Smt. Sipra Mondal and Sri Bidyut Ray being the nominees of the plaintiff in terms of the agreement; (c) For permanent injunction." 2. After the hearing of the suit was started the plaintiff applied under Order 6. Rule 17 seeking to amend the plaint by inserting therein a prayer for specific performance of the agreement dated 3.1.1988, a paragraph in support thereof and for amendment of the schedule to the plaint. One of the allegations sought to be inserted by way of amendment is that the plaintiff constructed the building by spending a sum of Rs.4 lacs. Rule 17 seeking to amend the plaint by inserting therein a prayer for specific performance of the agreement dated 3.1.1988, a paragraph in support thereof and for amendment of the schedule to the plaint. One of the allegations sought to be inserted by way of amendment is that the plaintiff constructed the building by spending a sum of Rs.4 lacs. The application for amendment of the plaint was dismissed by the Trial Court by an order dated 7.5.2001 on two grounds: (i) that the proposed amendment shall change the nature and character of the suit and (ii) that the case of action sought to be brought in by way of amendment was barred by limitation as on the date of application for amendment. In dismissing the application for amendment the Trial Court relied on a judgment of the Apex Court in the case T. L. Maddhukrishna v. Smt. Lalitha Ram Chandra Rao reported in AIR 1997 SC 772 wherein, in a suit for mandatory injunction prayer for specific performance was sought to be inserted by way of amendment of the plaint which was disallowed by the Courts below and the Apex Court upheld the order on the ground of limitation. It would be apposite to notice the relevant portion of the aforesaid judgment which is as follows:- “................ Since the application for amendment of the plaint came to be filed after the expiry of three years, certainly it changed the cause of action as required to be specified in the plaint. The suit for mandatory injunction is filed and the specific performance was sought for by way of an amendment. The cause of action is required to be stated initially in the plaint but it was not pleaded. It was sought to be amended along with an application for specific performance which, as stated earlier, was rejected. Under these circumstances, even by the date of filing of the application, namely, November 5, 1992 the suit was barred by limitation. The High Court, therefore, was right in refusing to permit the amendment of the plaint. It is then contended that the appellants have already paid the substantial amount and therefore they will be deprived of the remedy of recovery thereof. The High Court, therefore, was right in refusing to permit the amendment of the plaint. It is then contended that the appellants have already paid the substantial amount and therefore they will be deprived of the remedy of recovery thereof. Shri Harish Salve learned Counsel for the respondent in fairness has stated that his client would refund by depositing in the Trial Court the entire amount with interest as stipulated in the contract within a period of six months from today. The appeal accordingly dismissed subject to the above undertaking given by the respondent. No costs.” 3. The plaintiff in the present case applied for revision against the order rejecting the application for amendment before the Additional District Judge. Alipore. The revisional Court recorded a concurrent finding to the effect that the cause of action is barred by limitation and could not be allowed to be brought in by way of amendment. 4. Mr. Ashok Banerjee, learned Senior Advocate appearing in support of this application submitted that both the learned Courts below fell into a grave error in proceeding on the basis that by the amendment the nature and character of the suit will be changed. He submitted that a suit for mandatory injunction is basically a suit for specific performance. 5. He further submitted that even if the nature and character of a suit is changed, amendment is permissible because that would shorten the litigation and/or minimise the litigation. 6. He further submitted that the supposition that cause of action for specific performance was barred on the date of the application for amendment is therefore incorrect and in any event the amendment petition should have been allowed reserving the question as regards limitation to be tried as an issue in suit. 7. In support of his submission he has relied upon the case of R.T.V. John v. S. Rayappan reported in 2001 (2) SCC 472 wherein the Apex Court laid down the law as follows :- “If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in Paragraphs 8(a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject matter of the issue after allowing the amendment prayed for.” 18. Mr. Roy, learned Advocate appearing for the defendant-opposite party reiterated his submission based on the case reported in AIR 1997 SC 772 adverted hereinabove and further contended that in the event the application for amendment is allowed the Court would be ousted of its jurisdiction because in that event the valuation of the suit would increase and shall no more remain within the pecuniary jurisdiction of the Trial Court. He submitted that an amendment which results in ouster of jurisdiction is not permissible and therefore the application for amendment was rightly dismissed and that the impugned order cannot be interfered with. 9. Let us now examine the contentions advanced by the learned Advocates for the parties. The submission made by Mr. Banerjee that a suit for mandatory injunction is basically a suit for specific performance is in my view a correct submission. Fry in his "Specific Performance of Contracts" 6th Edition, at page 535 has opined as follows:- "1149. The jurisdiction of the Court in injunction is connected with the specific performance of executory contracts in three ways: (i) Sometimes the injunction is the instrument by which the Court specifically enforces the contract itself or some part of it; (ii) Sometimes the injunction is merely incident or ancillary to the performance of the contract; and (iii) Sometimes the injunction is used for the purpose of giving effect to rights resulting from the non-performance of the contract." 10. Section 38 of the Specific Relief Act provides for grant of perpetual injunction to prevent breach of obligation existing in favour of the plaintiff Section 39 of the Specific Relief Act provides for mandatory injunctions and is worded as follows:- "S.39. Section 38 of the Specific Relief Act provides for grant of perpetual injunction to prevent breach of obligation existing in favour of the plaintiff Section 39 of the Specific Relief Act provides for mandatory injunctions and is worded as follows:- "S.39. Mandatory injunction-When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts." 11. An important pre-condition for grant of an injunction both under Sections 38 and 39 is to be found in Section 41 (f) of the Specific Relief Act which provides "an injunction cannot be granted to prevent the breach of a contract the performance of which would not be specifically enforced." 12. It is therefore clear that in exercising the jurisdiction to grant an injunction Court really exercises the jurisdiction of specific performance of the contract and in case specific performance cannot be had then neither a perpetual injunction nor a mandatory injunction can be issued where the cause of action is founded in a contract. 13. In the present case there is already a prayer in the plaint for a mandatory injunction directing the defendant to execute a registered deed of conveyance which is in my view in essence a prayer for specific performance of the contract dated 3.1.1988. The amendment prayed for by the petitioner is only an additional approach. The learned Courts below were therefore wrong in proceeding on the basis that by the proposed amendment the nature and character of the suit will be changed. The cause of action for specific performance is already there in the plaint. Therefore, there was no reason to think that the nature and character of the suit will be changed. 14. Once it is realised that the suit is basically a suit for specific performance, the question of limitation evaporates because by the amendment only a specific prayer to that effect is sought to be added. No new cause of action is being imported by the amendment nor is it a case where the cause of action was absent ab-initio. Unless a new cause of action is sought to be brought in, the question of limitation does not really arise. No new cause of action is being imported by the amendment nor is it a case where the cause of action was absent ab-initio. Unless a new cause of action is sought to be brought in, the question of limitation does not really arise. Both the learned Courts below have missed an important distinction between the case in hand and the one reported in AIR 1997 SC 772 . In that case originally the prayer was "for mandatory injunction ......... directing the respondent to comply with the requirements as mentioned in the agreement". Those requirements related to obtaining of necessary permission from Urban Land Ceiling Authority and income tax authority etc. Originally there was no prayer in that case for a direction upon the defendant to convey the title. That prayer was sought to be made by seeking specific performance. It is in this context that the Apex Court refused to disturb a right which had accrued already to the defendant. But the present case is totally different because here prayer directing the defendant to execute and register the deed of conveyance was already there. Originally prayer for specific performance was implicit. By the amendment what was implicit is sought to be made explicit. There is thus no question of any limitation. 15. There is one more distinction between the case in hand and the case of T.L. Maddhukrishna reported in AIR 1997 SC 772 . In the latter case the defendant opposed the amendment seeking to include a prayer for specific performance but offered to pay the amount received by him together with interest. But in the case before me the defendant has taken the fullest benefit of the contract and is opposing the prayer for amendment relying on the aforesaid case. 16. The second point urged by Mr. Roy learned Advocate appearing for the opposite party that in the event the amendment is allowed the valuation of the suit shall be increased and the learned Trial Court shall no more remain competent to try the suit was at one point of time looked upon with favour but the recent view is that the amendment of plaint should not be refused on this ground because the object is to shorten the litigation. The recent view taken by the various High Courts is that amendment should nonetheless be allowed and the amended plaint should be returned to the plaintiff for presenting before the appropriate Court. Reference in this regard can be made to the Division Bench judgment of the Bombay High Court in the case of Benisham Mohanlal Khetan v. Mahadeo Tukaram Borkar reported in AIR 1985 Bombay 462 wherein the following view was taken:- "A Civil Court under Order 6, Rule 17 can allow the plaint to be so amended as to result in ousting its own jurisdiction in the matter, and in case the amendment is allowed and carried out, the proper course to be followed is to return the amended plaint to the plaintiff for presentation to the proper Court under Order 7, Rule 10, C.P.C." 17. Reference can also be made to the case of Suri Films v. S.N. Gobinda Prabhu and Brother reported in AIR 1989 Kerala 28 wherein the following view was taken:- "The Court before which a suit which it is competent to entertain and dispose of is pending can allow amendment of the plaint involving ouster of its jurisdiction. After allowing the amendment the Court should return the plaint as amended for presentation to the proper Court. When a Court having jurisdiction is seized of a matter, the question whether the amendment of the plaint has to be allowed or not could be considered only by that Court. The question of ouster of jurisdiction and competency to decide anything in the suit will come into play only when that effect is achieved by amendment. Even though the amendment notionally relates back to the date of presentation of the plaint, the amended plaint will be deemed to have been wrongly presented before the Court not having jurisdiction to entertain the same only when the amendment is carried out as per orders of the Court and then alone the question of passing an order for return of plaint for presentation before the proper Court under Order 7, Rule 10 (1) could arise." 18. For the aforesaid reasons this Court of the view that the amendment should be allowed. For the reasons indicated above the petition succeeds. The proposed amendment of the plaint is allowed subject to payment of costs assessed at Rs.2000/- to the defendant to be paid by the petitioner as condition precedent. For the aforesaid reasons this Court of the view that the amendment should be allowed. For the reasons indicated above the petition succeeds. The proposed amendment of the plaint is allowed subject to payment of costs assessed at Rs.2000/- to the defendant to be paid by the petitioner as condition precedent. After the amendment is incorporated the amended plaint be returned to the plaintiff for presentation before the appropriate Court.