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Barnik Ray Alias Harekrishna Ray Vs. West Bengal Housing Board and anr. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtKolkata High Court
Decided On
Case NumberC.O. No. 1991 of 1984
Judge
Reported inAIR1985Cal362,88CWN1025
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17; ;Specific Relief Act - Section 16
AppellantBarnik Ray Alias Harekrishna Ray
RespondentWest Bengal Housing Board and anr.
Appellant AdvocateA.K. Matilal and ;Tapan Kr. Bhattacharjee, Advs.
Respondent AdvocateN.N. Gupta, Govt. Pleader, ;D. Bagchi and ;Suchit Kr. Banerjee, Advs. (for No. 1)
DispositionApplication allowed
Cases ReferredRamananda Chowdhary v. Mst. Bhonri
Excerpt:
- .....by mr. gupta is concerned, it may be pointed out that there is no scope for any dispute that in a suit for specific performance if the plaintiff fails to prove that at all materialtimes he had been ready and willing to perform his part of the contract, he is not entitled to a decree for specific performance. that indeed is the mandate of the statute itself as we find it in section 16 of the specific relief act. therefore, to the extent the learned single judge of this court has emphasised this aspect, he has rightly done so having regard to the provision of the statute. in that case this court was not called upon to consider whether a formal defect with regard to the pleading on the point could or could not be removed by a subsequent amendment. as a matter of fact, the amendment.....
Judgment:

Anil K. Sen, J.

1. An application under Order 6, Rule 17 of the C.P.C. filed at a very late stage having been dismissed by the learned Judge, 3rd Bench, City Civil Court, Calcutta, by an order dt. June 16, 1984, the plaintiff has preferred the present revisional application.

2. The suit was instituted by the plaintiff for specific performance of a contract for sale of a flat at Karunamoyee Housing Estate, Salt Lake City, Calcutta. In drawing up the plaint it is quite evident that the plaintiff overlooked the amended provisions of Section 16(c) of the Specific Relief Act. Though the claim for specific performance was really based on implied pleadings envisaged by the said clause, there was no express pleading to the effect that the plaintiff had always been ready and willing to perform the essential terms of the contract which are to be performed by him. Parties led evidence. Plaintiff too led evidence on the point and he was subjected to cross-examination. At the stage of argument the aforesaid defect in the pleading was brought home to the plaintiff and accordingly, the plaintiff prayed for an amendment to incorporate the following additional pleading to the plaint, namely : --

'The plaintiff was and/or is ready and willing to perform the essential terms of the contract to be performed by him and the plaintiff is also ready and willing to purchase the said flat from the defendants.'

3. This prayer for amendment was strongly contested by the defendants. On such contest the learned Judge, City Civil Court, Calcutta, has rejected the prayer for amendment relying upon a single Bench decision of the Patna High Court in the case of Ram SinghasanChoubey v. Sudama Prasad Sah, : AIR1982Pat200 . According to the learned Judge, the pleading proposed to be introduced by the amendment was an essential part of the pleading and since it was not incorporated in the original plaint, he cannot now be allowed to add that to the pleading because by lapse of time a valuable right has accrued to the defendants. The correctness of the view thus taken by the learned Judge is the subject matter of challenge before us in the present revisional application.

4. Mr. Matilal appearing in support of the revisional application has contended that though the prayer for amendment was made at a late stage, the amendment sought for was really of a formal nature intended to remove a patent defect in the pleading which was not in any way inconsistent with the case originally pleaded nor was it in any way a new case. Mr. Matilal has strongly disputed the correctness of the view taken by the learned Judge that the amendment, if allowed, will take away any vested right of the defendants.

5. Mr. Gupta, who is appearing on behalf of the opposite party No. 1 has strongly contested the points thus raised by Mr. Matilal According to Mr. Gupta, the amendment, if allowed, would introduce a new cause of action, and a suit on the said new cause of action already being barred, should not be allowed. Repeated attempts were made by Mr. Gupta to refer to us to the evidence already recorded in the suit to indicate that the plaintiff was not really ready and willing at the time of filing of the suit to perform his part of the contract so that the amendment now proposed contrary to the said fact will be highly unjustified. Reliance was placed by Mr. Gupta on three decisions. Two of the decisions have already been referred to by the learned Judge in the trial Court. These are M/s. Ganesh Trading Co. v. Moji Ram, : [1978]2SCR614 , and Ram Singhasan Choubey v. Sudama Prasad Sah, : AIR1982Pat200 . The other decision relied on by Mr. Gupta is not on the point of amendment but is with regard to the effect of non-fulfilment of the provisions of Section 16(c), that is, the case of Manik Lal Seal v. K. P. Choudhury, : AIR1976Cal115 . So far as the last of these cases referred to and relied on by Mr. Gupta is concerned, it may be pointed out that there is no scope for any dispute that in a suit for specific performance if the plaintiff fails to prove that at all materialtimes he had been ready and willing to perform his part of the contract, he is not entitled to a decree for specific performance. That indeed is the mandate of the statute itself as we find it in Section 16 of the Specific Relief Act. Therefore, to the extent the learned single Judge of this Court has emphasised this aspect, he has rightly done so having regard to the provision of the statute. In that case this Court was not called upon to consider whether a formal defect with regard to the pleading on the point could or could not be removed by a subsequent amendment. As a matter of fact, the amendment proposed was really intended to meet the possible objection based on Section 16(c) of the Specific Relief Act as pointed out by this Court in the aforesaid case of Manik Lal Seal.

6. Before we deal with the other two decisions referred to by Mr. Gupta, we propose to deal with the respective arguments put forward before us. The first objection raised by Mr. Gupta is that by the amendment the plaintiff is proposing to introduce a new cause of action or a cause of action which was totally absent in the plaint at a time when a suit if brought on such a cause of action would be clearly barred by limitation. Hence, he contends that the court cannot or rather should not allow such an amendment, the effect whereof would be to deprive the defendant of a valuable right which has accrued to him in the meantime by lapse of time. In considering this objection, we must first remind ourselves of the basic principles governing application of Order 6 Rule 17 of the C.P.C. It was pointed out by the Supreme Court in the case of Jai Jai Ram Manoharlal v. N.B.M. Supply, : [1970]1SCR22 , that the power to grant amendment of pleadings is intended to serve the ends of justice and hence exercise of such powers should not be circumscribed by technicalities. Supreme Court observed: 'Rules of procedure are intended to be hand-maid to administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide or that by his blunder he has caused injury to the opponent which may not be compensed by an order of costs.' The approach indicated is certainly a liberal approach.

7. Judged in that light it cannot be said that the amendment sought for, should not be allowed. Admittedly there is a formal defect in the pleading which if not allowed to be cured would result in denial of just relief to the plaintiff and the prayer for amendment cannot be turned down due to any lack of bona fides. But Mr. Gupta thinks that due to plaintiffs failure to plead the requirement of Section 16(c) of the Specific Relief Act, which is the cause of action for the suit for specific performance, a valuable right had already accrued to the defendant by lapse of time which should not be taken away. We are unable to accept this contention for two reasons. The first of the reason is that it is now well settled that in the matter of allowing amendments, the court's power is not circumscribed by law of limitation though the question of limitation is one of the important factors which is always taken into consideration. There are enough authorities for this proposition. We may only refer to the decision of the Supreme Court in the case of L. J. Leach & Co. Limited v. M/s. Jardine Skinner & Co. : [1957]1SCR438 , which approved the Privy Council's decision in Charan Das's case, 47 Ind App 255 : (AIR 1921 PC 50).

8. The second reason for which we cannot accept this contention of Mr. Gupta is that we are unable to agree with him that by the amendment sought for, the plaintiff was really proposing to introduce such a new cause of action or a cause of action which was otherwise absent as cannot be allowed by way of amendment if it results in deprivation of a right of the defendant which might have accrued in the meantime by lapse of time. In a suit for specific performance of a contract it is the agreement between the parties and the refusal, to fulfil the same by the party resiling therefrom which constitutes the basic cause of action. It may be that in such a suit the plaintiff is also required to plead and prove the requirement of Section 16(c) of the Specific Relief Act. Even if that constitutes a part of the cause of action, that is not the whole of it and a prayer for amendment to remove any, defect due to omission to plead the said fact does not come within the bar of the principle which bars amendment to set up a new claim or a new cause of action. It was pointed out by the Supreme Court in the case of A.K. Gupta v. D.V.C. : [1966]1SCR796 , that the expression 'cause of action' in that context does notmean every fact which is material to be proved to entitle the plaintiff to succeed. The expression only means a new claim made on a new basis constituted by new facts. In this case the Supreme Court clearly laid down the rule that only when the amendment introduces a new set of ideas to the prejudice of any right which has been acquired by a party by lapse of time that the same can be refused and not otherwise. Certainly an amendment for removal of a defect in the pleading to bring it in conformity with Section 16(c) of the Specific Relief Act, does not constitute introducing any such new case as pointed out by the Supreme Court.

9. It would be pertinent to refer to the facts of Charan Das's case and the weighty observation of Lord Buckmaster in relation thereto. In that case the plaintiffs filed suits for declaration of their right of pre-emption over certain lands and not for actual preemption or possession on pre-emption. The suit as framed would not lie in view of the proviso to Section 42 of the Specific Relief Act. The plaintiffs accordingly prayed for necessary amendment for converting it to a suit for preemption. Such amendment was refused by the Courts below but was allowed by the Judicial Commissioner and that decision was the subject matter of challenge before the Privy Council Before the Privy Council it was contended that a mere claim of declaration of a right of pre-emption is totally different from a claim for pre-emption and possession on pre-emption. The claim of pre-emption not having been made in the original plaint and such a claim being barred by limitation on the date of amendment, an objection was raised that by the amendment the defendants had been deprived of a valuable right which had accrued to them in the meantime by lapse of time. In overruling this objection, Lord Buckmaster fully approved the following statements of the Judicial Commissioner:

'However defective the frame of the suit may be, the plaintiffs' object was to pre-empt the land; their cause of action was one and the same whether they sued for possession or not.'

Lord Buckmaster went on further to observe 'If this be so, all that happened was that the plaintiffs through some clumsy blundering, attempted to assert rights that they undoubtedly possessed under the statute in a form the statute did not permit.' In our opinion,the defect sought to the removed by the amendment now under consideration by us squarely answers the decription pointed out by Lord Buckmaster. Plaintiffs are claiming specific performance of a contract and their case remains so even after the amendment. Amendment was sought for only to bring the pleading in conformity with the statute.

10. Though reliance has been placed by Mr. Gupta on the decision of the Supreme Court in the case of Ganesh Trading Co. v. Moji Ram, : [1978]2SCR614 , that decision really does not support the contention of Mr. Gupta. Therein the Supreme Court was merely reaffirming the well settled principle, namely, that if lapse of time has barred the remedy on newly constituted cause of action, the court shall, ordinarily refuse prayers for amendment of pleading. But that rule in our opinion must be understood and applied in the light of the earlier decision of the Supreme Court in the case of A. K. Gupta v. D. V. C. : [1966]1SCR796 (supra). It is no doubt true that the two decisions in the case of Ram Singhasan v. Sudama Prosad, : AIR1982Pat200 and Mahmood Khan v. Ayub Khan, : AIR1978All463 , do support to some extent the contention of Mr. Gupta. But for reasons already given and with due respect to the learned Judges who decided those cases, we are unable to share the views expressed therein. Views so expressed are said to follow from the decision of the Supreme Court in the case of Ganesh Trading Co., but in our view as pointed out earlier such a conclusion does not really follow from that decision. That decision in a way supports in contention of Mr. Motilal that the amendment seeking to remove a formal defect in the pleading without changing the nature and character of the case or the cause of action should have been allowed. Even in this case of Ganesh Trading Co., the Supreme Court observed : 'Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent.' We have already given reasons for holding that defect sought to be removed in this case does not constitute any such total absence of the cause of action. Based on the agreement and the refusal by the defendant to fulfil the same, the suit as originally framed was constituted and the case continues to remain the same even after the amendment is allowed. Such amendment would merely remove a defect in the pleading but would notchange its nature or character, nor would it make out a case which would deviate from the original one. We would, therefore, prefer to agree with the Punjab & Haryana High Court in the views expressed by the said Court in the case of Ramananda Chowdhary v. Mst. Bhonri, AIR 1978 Punj & Har 291.

11. So far as the second objection raised by Gupta is concerned, it is not for us to go into the merits of the case as would stand after the amendment at this stage. We cannot refuse the amendment on the ground that the plaintiff would not be able to prove the case made on amendment. If the amendment be relevant and necessary it should be allowed irrespective of any consideration as to whether the plaintiff would ultimately be able to substatiate the case so made on amendment. It is not permissibele to pre-judge the case proposed to be made on the amendment for the purpose of refusing the prayer therefor.

12. In the result, we are unable to sustain the order impugned whereby the learned Judge on total misconception of the scope of Order 6 Rule 17 of the Code had refused to exercise his jurisdiction for allowing an amendment as sought for. We are conscious of the position that the amendment was sought for at a very late stage but that was due to an unfortunate mistake, as we have pointed out hereinbefore, of the lawyer who drew up the plaint. We are also conscious of the position that unless this defect in the pleading be allowed to be removed the suit is bound to fail. Since it is never the intention of any Court of law to deny relief to a party on mere technicality, it is just and proper that the formal defect should be removed and the amendment for the said purpose should be allowed even at a late stage, the defendant being amply compensated by appropriate costs.

13. The revisional application, therefore succeeds. The impugned order being set aside, we allow the amendment. The plaintiff however, is directed to pay a cost of Rs. 150/-to the defendant irrespective of the result of the suit. The defendant will now be entitled to file any additional written statement, if they so like, within a period of 3 weeks from this date and thereafter the learned Judge is directed to give an appropriate opportunity to the parties to adduce any further evidence they want including recalling of any pf the, witnesses already examined. The revisionalapplication is disposed of accordingly. Let the aforesaid costs be deposited in the trial Court within a period of 3 weeks from this date.

Sudhir Ranjan Roy, J.

14. I agree.


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