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2016 DIGILAW 1499 (ALL)

BRIJENDRA SINGH v. SUNIL KUMAR ASTHANA

2016-04-22

MANOJ MISRA

body2016
JUDGMENT Hon’ble Manoj Misra, J.—Heard Sri P.K. Sinha for the defendant-revisionist; Sri S.C. Tripathi for the plaintiff-respondent; and perused the record. 2. This is defendant’s revision against an order dated 19.3.2016 passed by Civil Judge (Senior Division), Kanpur Nagar in Original Suit No. 1634 of 2011 by which application 76 Ka seeking amendment in the plaint, enabling addition of relief of specific performance as also of mandatory injunction with few additional paragraphs, has been allowed on payment of cost of Rs. 1000/-. 3. Original Suit No. 1634 of 2011 was instituted by the plaintiff-respondent for permanent prohibitory injunction to restrain the defendant, his agents, service agents, etc., from alienating the suit property to any one except the plaintiff. 4. The plaint case was that the defendant had entered into a registered agreement for sale with the plaintiff on 20.2.2008 for transfer of premises No. 117/K/80, Sarvodaya Nagar, Kanpur built over free-hold Plot No. 62 situated in Block No. K, Scheme-I, Kakadeo, Kanpur admeasuring 297.76 square meter alongwith existing construction for Rs. 40,00,000/-. In paragraph 7 of the plaint it was alleged that ground floor of the accommodation was in possession of tenants therefore it was agreed that the defendant would get those tenants evicted from his own resources and thereafter, within six months, will execute the sale-deed in favour of the plaintiff or his nominee. In paragraph 14 of the plaint it was pleaded that the plaintiff is ready and willing to pay balance sale consideration and get the sale-deed executed in his favour, subject to vacation of tenant as per registered agreement. Plaintiff’s case was that instead of securing eviction of tenants and informing the plaintiff accordingly, the defendant, through his advocate, served a notice dated 19.6.2011, on 20.6.2011, requiring the plaintiff to execute the sale-deed and, in fact, was seeking to dispose off the property in open market to third parties. 5. A written statement was filed in which several pleas were raised including that the defendant was not in a position to get the tenants evicted from the premises. It was also pleaded that the suit for permanent prohibitory injunction was not maintainable in view of the bar under Section 41(h) of the Specific Relief Act as the suit ought to have been instituted for relief of specific performance. 6. It was also pleaded that the suit for permanent prohibitory injunction was not maintainable in view of the bar under Section 41(h) of the Specific Relief Act as the suit ought to have been instituted for relief of specific performance. 6. It appears that to avoid the objection taken in the written statement, the plaintiff applied for amendment of the plaint so as to add a relief for mandatory injunction to direct the defendant to perform the contractual obligation set forth in the agreement for sale. This application was not pressed by the plaintiff. Thereafter, a more comprehensive application for amendment of the plaint was moved in which not only the relief for mandatory injunction but the relief for specific performance was also sought. It is this subsequent amendment application dated 28th April, 2014 which has been allowed by the impugned order. 7. The contention of Sri P.K. Sinha, learned counsel for the revisionist, is that the since the suit was for permanent prohibitory injunction and the agreement for sale was dated 20.2.2008, the relief for specific performance of the agreement had become barred by time by the time the amendment application was filed and, therefore, by allowing the amendment application the Court below has indirectly removed a fatal defect in the suit thereby causing serious prejudice to the defendant. It has been submitted that the nature of the suit has changed because of conversion into one for specific performance of an agreement, which cannot be allowed. 8. Per contra, Sri S.C. Tripathi, learned counsel for the plaintiff-respondent, has submitted that the basis of the suit was the agreement for sale between the parties and the suit was instituted for enforcement of contractual obligations of the parties arising there from. He submitted that whether the relief for specific performance is barred by time or not has been left open by the Court below while allowing the amendment and since the question of limitation could be better adjudicated after leading of evidence, keeping in mind the terms and conditions of the agreement, it would not be appropriate for this Court to adjudicate the issue of limitation, at this stage, particularly, when the Court below has left it open to be agitated by the defendant. He further submitted that it is well-settled position in law that an amendment which enables the Court to decide the real controversy between the parties should be allowed, particularly, when it prevents multiplicity of suits. He submitted that to avoid multiplicity of suits and to decide the real controversy between the parties, which relate to contractual obligations of the parties under the agreement, the amendment was necessitated and has been rightly allowed by the Court below. He also submitted that the nature of the suit does not change by mere addition of relief because ultimately the basis of the suit remains the same, which is nothing but an agreement between the parties. Sri S.C. Tripathi further submitted that the Court below has taken care to protect the interest of the defendant by specifically clarifying that the question of limitation would be open for the defendant to agitate, thus, the amendment does not prejudice the right of the defendant to agitate the plea that the suit for specific performance was barred by limitation. Sri Tripathi, during the course of hearing, produced before the Court the amended plaint so as to demonstrate that the amendment has already been incorporated in the plaint and Court fees for the added relief has also been paid. 9. I have considered the submission of the learned counsel for the parties. 10. Before dealing with the submissions of the learned counsel for the parties it would be important to observe that it is admitted to the counsel for the parties that in this case, at the stage of allowing the amendment application, the trial had not commenced inasmuch as the issues had not till then been framed, therefore, the rigours of the proviso to Order VI, Rule 17 of the Code of Civil Procedure were not applicable. 11. Ordinarily, allowing a suit for permanent prohibitory injunction to be amended to one for specific performance of contract, after the period of limitation for the suit for specific performance is over, is not to be permitted {vide Tarlok Singh v. Vijay Kumar Sabharwal, (1996) 8 SCC 367 ; K. Raheja Construction Ltd. v. Alliance Ministries, 1995 Supp (3) SCC 17; and Vijendra Kumar Goel v. Kusum Bhuwania, (1997) 11 SCC 457 } because it would cause serious prejudice to the defendant. But where the issue as to whether the suit for specific performance has become barred by limitation or not needs to be adjudicated upon examination of the terms of the agreement as also the evidence led on that score, during the course of trial, the Court has discretion to allow the amendment subject to the question of limitation being left open. In Raghu Thilak D. John v. S. Rayappan, (2001) 2 SCC 472 , it was observed by the Apex Court that where the plea that the relief sought by way of amendment was barred by limitation is arguable, the amendment can be allowed subject to consideration of such plea as an issue during the course of the suit. In Abdul Rehman v. Mohd. Ruldu, (2012) 11 SCC 341 , the Apex Court held that all amendments which are necessary for the purpose of determining the real questions in controversy between the parties should be allowed if it does not change the basic nature of the suit. It was observed that change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties. 12. In Sampath Kumar v. Ayyakannu, (2002) 7 SCC 559 , the question was whether in a suit for permanent prohibitory injunction which remained pending for 11 years the relief for declaration and recovery of possession should be allowed to be added by way of amendment or not. While allowing such amendments, in paragraphs 7 to 11 of the judgment, as reported, the Apex Court observed as follows: “7. In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial Court, it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff’s revision. In the opinion of the trial Court, it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff’s revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings. 8. In Rukhmabai v. Lala Laxminarayan, AIR 1960 SC 335 , this Court has taken the view that where a suit was filed without seeking an appropriate relief, it is a well-settled rule of practice not to dismiss the suit automatically but to allow the plaintiff to make necessary amendment if he seeks to do so. 9. Order 6 Rule 17 CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In the former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No straitjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment. 10. An amendment once incorporated relates back to the date of the suit. No straitjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment. 10. An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation-back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed. (See observations in Siddalingamma v. Mamtha Shenoy.) 11. In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed.” 13. It is thus clear that pre-trial amendments which are required to address to the real controversy between parties in the suit are not to be disallowed ordinarily, keeping in mind that it prevents multiplicity of suits, unless it seriously prejudices the interest of the other side. For instance, in cases where a completely new case is introduced or new relief sought by way of amendment, ex facie, is barred by limitation, on the date of moving the application, or an admission made is being completely withdrawn by the proposed amendment thereby causing prejudice to the other side, the Court should be loath to allow such amendments. But where the question whether the relief sought by way of amendment is barred by limitation or not, is arguable, meaning thereby that it requires adjudication by entering into the merit of the plea upon examination of evidence in that regard, it is open to the Court to allow amendment subject to such question being examined as an issue in the suit and in such a case it is also open to the Court to make such an amendment effective from the date of filing of the amendment application so that it does not relate back to the date of institution of the suit as normally an amendment does unless directed otherwise by the Court {vide Siddalingamma v. Mamtha Shenoy, (2001) 8 SCC 561 }. It is equally important to note that nature of the case does not change by addition or subtraction of a relief. If the foundational facts are already available in the plaint by mere addition of an effective relief the nature of the case does not change. It is equally well-settled that while considering the amendment application the Court is not required to address to the merit of the plea sought to be incorporated {Rajesh Kumar Aggarwal v. K.K. Modi, (2006) 4 SCC 385 ; Andhra Bank v. ABN Amro NV Bank, (2007) 6 SCC 167 ; Usha Devi v. Rijwan Ahmed, (2008) 3 SCC 717 }. 14. 14. Having noticed the legal position, now coming to the facts of the present case, what transpires is that the suit, as instituted, was based on the contractual obligations of the parties flowing from a registered agreement for sale dated 20.2.2008. According to the plaintiff the sale-deed was to be executed, as per the terms of the agreement, within six months of the defendant having evicted his tenant, which condition, according to the plaintiff, was not fulfilled by the date of institution of the suit, though the plaintiff had been ready and willing to perform his part under the contract. It was alleged that instead of performing his obligation under the contract, by seeking eviction of tenants, the defendant was planning to dispose off the property to some other person, therefore, the suit for permanent injunction was necessitated. By amendment, relief for specific performance was sought to completely settle the real controversy between the parties arising from that registered agreement for sale, keeping in mind that the trial had not commenced and it would avoid multiplicity of proceedings. Under the circumstances whether the relief for specific performance was barred by limitation on the date of filing of the application for amendment is an arguable issue and, therefore, Court below committed no jurisdictional error in allowing the amendment by leaving the question of limitation open and to be considered as an issue. Further, by incorporation of the relief for specific performance of the agreement no new case is introduced because the suit, as it originally stood, continues to be based on the agreement for sale between the parties. This Court is therefore of the considered view that by allowing the amendment the Court below committed no jurisdictional error more so when it has protected the interest of the defendant by leaving the question of limitation open to be considered as an issue. However, to do complete justice between the parties, this Court directs that the amendment, which has been incorporated pursuant to the order dated 19.3.2016, will not relate back to the date of the institution of the suit but would be with effect from the date of filing of the amendment application, which has been allowed by the order impugned. However, to do complete justice between the parties, this Court directs that the amendment, which has been incorporated pursuant to the order dated 19.3.2016, will not relate back to the date of the institution of the suit but would be with effect from the date of filing of the amendment application, which has been allowed by the order impugned. It is further observed that it would be open to the defendant to set up a plea that the relief for specific performance was barred by limitation and the same shall be considered by the Court below while deciding the suit. 15. Subject to the above, the revision is dismissed.