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2019 DIGILAW 1161 (GAU)

Basanti Koiri v. Probha Bati Koiri

2019-10-25

PRASANTA KUMAR DEKA

body2019
ORDER : 1. Heard Mr. S.P. Choudhury, learned counsel for the petitioners. Also heard Mr. A. Biswas, learned counsel for the respondents. 2. The petitioners are the defendants in Title Suit No. 17/2018 filed by the present respondent-plaintiffs for specific performance of contract in respect of agreement of sale. The defendant-petitioners filed written statement and the issues are also framed and suit is fixed for evidence of the plaintiffs' side. At that stage the plaintiff-respondents filed an application under order 6, rule 17 of CPC for introducing in the plaint, “the plaintiff is ready and willing and shall ready to perform her part of contract”. The learned Civil Judge, Karimganj, registered the said application as Misc. Case No. 129 of 2018. The defendant-petitioners filed the written objection. The learned court below vide order dated 13.12.2018 allowed the said amendment with cost of Rs. 500. The said order is impugned in this revision petition. 3. Mr. Choudhury, learned counsel for the petitioners submits that the impugned order dated 13.12.2018 is liable to be set aside as there was no finding as stipulated under order 6, rule 17 of CPC in respect of due diligence on the part of the plaintiff-respondents was recorded. In addition to that the suit had already entered into the stage of trial and under such circumstance it is mandatory on the part of the court below to give finding in respect of the due diligence on the part of the plaintiff-respondents in introducing the amendment. 4. Mr. Biswas, learned counsel for the respondents on the other hand countered the said submission and submits that the introduction of the said amendment does not change the cause of action of the suit. Moreover, an issue in respect of the said amendment was already framed by the court below and as such mere introducing the said amendment cannot change the nature of the suit which is the prime consideration for deciding an application under order 6, rule 17 of CPC and as such learned court below correctly allowed the said application. In support of the said contention Mr. Biswas relied the case laws of Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar, (1990) 1 SCC 166 and Lakhi Ram (dead) through LRs. v. Trikha Ram, (1998) 2 SCC 720 . 5. I have given due consideration to the submissions of the learned counsel. In support of the said contention Mr. Biswas relied the case laws of Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar, (1990) 1 SCC 166 and Lakhi Ram (dead) through LRs. v. Trikha Ram, (1998) 2 SCC 720 . 5. I have given due consideration to the submissions of the learned counsel. In a suit for specific performance of contract readiness and willingness of the plaintiff plays a vital role in the decision for granting the decree. Even if there is no pleading to the said effect, the court is bound to look into the said aspect of readiness and willingness on the part of the plaintiffs. The Apex Court reported in Gajanan Jaikishan Joshi (supra) in a similar issue but against rejection of the same nature of amendment seeking for introducing the fact of readiness and willingness held that by introduction of the said amendment, no fresh cause of action is introduced arid the appellant sought to complete the cause of action for specific performance for which relief he had already prayed. It is only one averment required under section 16(c) of the Specific Relief Act to be made in a plaint in a suit for specific performance which 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. The said ratio of the Hon'ble Apex Court was again taken into consideration in the decision rendered by Hon'ble Apex Court reported in Lakhi Ram (supra) wherein it was held that the amendment inserting the relevant averments under section 16(c) of the Specific Relief Act does not change the cause of action and would be a legally permissible exercise as laid down by this court in the earlier decision. 6. Keeping in view the said ratio of the aforesaid decisions, I do not find any merit in this revision petition inasmuch as while disposing the petition under order 6, rule 17 of CPC a prime consideration is given as to whether the said introduction of the amendment would change the nature of the suit. However, if it is in the trial stage, it is necessary to give a finding by the court in respect of due diligence on the part of the party seeking for amendment. However, if it is in the trial stage, it is necessary to give a finding by the court in respect of due diligence on the part of the party seeking for amendment. The said scrutiny is required to examine the aspect of delay in disposal of the suit by filing unnecessary, petition under order 6, rule 17 of the CPC and deter scrupulous litigants. In the present case in hand, the suit is fixed for evidence on affidavit for the plaintiffs' side. As submitted by Mr. Choudhury, the defence that the plaintiff-respondents are not ready and willing to perform. the contract is taken by the defendant-petitioners. But the court below recording that the trial was likely to be started did not give its finding on the issue of due diligence which cannot be held to be bad in law. Considering the same, I do not find any force in the submission of Mr. Choudhury. 7. Accordingly, this revision petition is dismissed. No costs.