R.N. Misra, C.J.
1. It is a plaintiff's application challenging the order of the learned Subordinate Judge of Jeypore refusing to allow an application under Order 6. Rule 17 of the Code of Civil Procedure for amendment of the plaint.
2. Title suit No. 4 of 1973 was instituted for specific performance of an agreement dated 23-11-1971 by which defendants had undertaken to deliver a specified quantity of timber. Petitioner obtained an interim order of injunction against removal of the timber and when the interim order was rescinded. Miscellaneous Appeal No. 150 of 1973 was carried to this Court where injunction was again granted. During the pendency of the appeal, original defendant No. 1 died on 16-8-1973 and substitution was made on 22-11-1973. According to the plaintiff, notwithstanding injunction from this Court, defendants felled the standing trees, cut them into pieces, removed the logs and disposed of the same with a view to making the suit infructu-ous. The suit was posted for hearing to 14th Mar. 1978, when defendants were set ex parte. On 15th Mar. 1978, plaintiff applied for amendment of the plaint. The amendment was allowed and the suit was decreed ex parte on 20th Mar, 1978. On the basis of an application un-der Order 9, Rule 13 of the Civil P. C., the ex parte decree was vacated on 2-4-1979. The court ordered that a copy of the petition for amendment of the plaint should be served on the defendants and after hearing both parties rejected the application for amendment on 23-7-1979. In the application for amendment, the plaintiff had specifically pleaded that the necessity for the amendment arose on account of events that happened after the suit was filed and unless the alternate relief for compensation on the basis of the value of the timber was allowed, the suit would be rendered infructuous. 3. Mr. Murty in support of the application contends that the learned Subordinate Judge has gone wrong in accepting the plea of limitation. Plaintiff's case was that the relief for compensation became necessary to be asked for on account of events which happened during the pendency of the suit. For admitting consideration of the alternate relief, the date of institution of the suit was not material because the cause of action for the alternate relief was recent and no premium could have been attached to the pendente lite conduct of the defendants. Relying on the decision of Mukherji, J., as the learned Judge then was, in the case of Rajendra Nath Saha v. Saraswati Press Ltd.. AIR 1952 Cal 78, Mr. Murty argues that the original suit for specific performance could be converted by amendment into a claim for damages for breach of contract and such an amendment did not amount to altering the cause of action or the nature of the suit. In the self-same decision it was pointed out by the learned Judge that the cause of action in a suit for specific performance or damage was the breach of contract and, therefore, when in lieu of specific performance damages are asked for. the cause of action continues to be breach of contract and one relief which is impossible of performance on account of the defendant's conduct is substituted by the alternate relief asked for. The ratio of the decision reported in AIR 1952 Cal 78, is based upon an analysis of the law applicable to the facts of a case like the present one.
Mr. Swamy for the other side relied upon a later Bench decision of the Calcutta High Court in the case of Gopi Nath Sen v. Bahadurmal Dulichand, AIR 1979 Cal 203, where the Court held that the question of granting relief byway of damages in lieu of or in substitution of specific performance is a matter resting entirely with the Court and parties have nothing to do with it. The plaintiff, therefore, could not be allowed to abandon the case for specific performance and yet claim damages in lieu thereof. That was a case where the plaintiff was not ready to perform his part under the contract. The latter case of the Calcutta High Court would not apply to the facts of a case of the pre-sent type. There is, therefore, no question of limitation in the present case.
4. There is another feature which must also be taken notice of. The amendment of the plaint had once been allowed when the defendants were ex parte. When as a result of the application under Order 9, Rule 13, Civil P. C., the ex parte decree was vacated, the suit was indeed not relegated to the position when defendants were first set ex parte, but the stage of actual trial. Orders passed prior to trial would not automatically be wiped out. In the present case, the time-lag was short, but there may be cases where the defendant could be set ex parte at an initial stage and after a chequered career of the suit taking years, it might be called for trial.) When in such a suit on defendant's ap-plication the ex parte decree is vacated, the effect of vacation of the ex parte decree cannot affect all proceedings taken in the suit after the defendant was initially set ex parte. Those orders under which the rights of parties have been allowed to work out and which in the absence of challenge have become final cannot be set aside or treated to have been recalled as a result of the ex parle decree being vacated.
5. In my opinion, the learned Subordinate Judge went wrong in refusing the prayer for amendment in the facts of the case. The Civil Revision is accordingly allowed and the impugned order is set aside. The amendment shall be carried as required by law. Defendants shall be now given an opportunity of filing additional written statement, if any, within a time to be fixed by the trial court. I call upon the parties to appear before the trial court on March 16. 1981 to which date the suit shall stand posted.
There would be no order for costs.