Code of Civil Procedure, 1908 – Or. II r. 2 and Or. VI r. 17 – Applicability of Or. II r. 2 to an amendment application – Held: Or.II r.2 operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview – The bar of Or. II r.2 applies only to the subsequent suits – Or. II r.2 cannot apply to an amendment which is sought on an existing suit. Specific Relief Act, 1963 – Suit for Specific Performance – Code of Civil Procedure, 1908 – Or. II r.2, Or. VI r.17 – Applicability of – Respondents instituted suit seeking specific performance of the agreement and in the alternative, prayed for damages – High Court permitted the Respondents to amend the plaint, seeking to enhance the amount towards the alternative claim for damages – Correctness of – Held: There is no merit in the contention raised on behalf of the appellant that the amendment application is liable to be rejected by applying the bar u/Or.II r.2 CPC – Or.II r.2 of CPC cannot apply to an amendment which is sought on an existing suit – Further, the amendment application is also not hit by the principle of constructive res judicata – The said principle has no application in the instant case, since there was no formal adjudication between the parties after full hearing – Litigation before this Court has come up at the stage when the courts below allowed the amendment of plaint for the purpose of enhancing the amount towards damages in the alternative to the main relief of specific performance of the contract – Also, it cannot be successfully urged that a suit for specific performance falling under the provisions of the 1963 Act would not be governed by the provisions of the CPC – It is, therefore, clear that to such a suit the provisions contained in Or.VI, r.17 of the CPC would apply and a plaintiff who has earlier failed to incorporate the reliefs for compensation or who has incorporated the reliefs for compensation but seeks amendment in the same, could seek the permission of the court to introduce these reliefs by way of amendment – Impugned order passed by the Division Bench of the High Court, affirming the order passed by the Single Judge allowing the amendment application not disturbed – Doctrine of constructive res judicata.
Code of Civil Procedure, 1908 – Or. VI r. 17 – Amendment of pleadings – Held: All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side – This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Or.VI r.17 – In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs – Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed – Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation – Delay in applying for amendment alone is not a ground to disallow the prayer – Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. Code of Civil Procedure, 1908 – Or. VI r. 17 – Amendment of pleadings – When to be allowed and not to be allowed – Discussed.
Specific Relief Act, 1963 – Proviso to s.21(5) and s.22(2) – Code of Civil Procedure, 1908 – Or. VI r. 17 – Held: The two provisos deal with the question of permitting the plaintiff to amend his plaint – It is not, as if, in the absence of these two provisos, it is not permissible in law for the plaintiff to carry out an amendment in his pleading by introducing a relief for enhanced compensation – r.17 of Order VI does confer power on a Court to allow a party to alter or amend his pleading in such manner and on such terms as may be just and allows all such amendments to be made as may be necessary for the purpose of determining the real question in controversy between the parties.
Specific Relief Act, 1963 – s.21 – Scope and ambit of – Discussed – Specific Relief Amendment Act, 2018.
Words & Phrases:
“shall”, in the latter part of Or.VI r.17 – Code of Civil Procedure, 1908 – Or.VI r.17.
“omits to sue” and “intentionally relinquish any portion of his claim” – Discussed – Code of Civil Procedure, 1908 – Or.II r.2. Dismissing the appeal, the Court
HELD: 1.1 It is well settled that the court must be extremely liberal in granting the prayer for amendment, if the court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment, shall suffer irreparable loss and injury. It is also equally well settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the court to allow an amendment if it is of the view that allowing of an amendment shall really sub-serve the ultimate cause of justice and avoid further litigation. The power to allow an amendment is undoubtedly wide and may be appropriately exercised at any stage in the interests of justice, notwithstanding the law of limitation. The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defense which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favor of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defense taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. The proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the application for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement. But undoubtedly, every case and every application for amendment has to be tested in the applicable facts and circumstances of the case. As the proposed amendment of the pleadings amounts to only a different or an additional approach to the same facts, this Court has repeatedly laid down the principle that such an amendment would be allowed even after the expiry of statutory period of limitation. [Paras 19, 23, 25 & 26][1135-C-D; 1137-D; 1138-B-G]
L.J. Leach & Co. Ltd. &Anr. v. Jardine Skinner & Co. AIR 1957 SC 357 : [1957] SCR 438; T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board & Ors. (2004) 3 SCC
392 : [2004] 2 SCR 352; Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil 2 Ors. [1957] SCR 595 : AIR 1957 SC 363; Ganga Bai v. Vijay Kumar & Ors. (1974) 2 SCC 393 : [1974] 3 SCR 882; M/s Ganesh Trading Co. v. Moji Ram (1978) 2 SCC 91 : [1978] 2 SCR 614; South Konkan Distilleries & Anr. v.
Prabhakar Gajanan Naik & Ors. (2008) 14 SCC 632 : [2008] 13 SCR 295; A.K. Gupta Sons Ltd. v. Damodar Valley Corporation AIR 1967 SC 96 : [1966] 1 SCR 796; Pankaja & Anr. v. Yellappa (dead) by LRs. & Ors. (2004) 6 SCC 415 – relied on.
1.2 One of the cardinal principles of law in allowing or rejecting an application for amendment of the pleading is that the courts generally, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of filing of the application. But that would be a factor to be taken into account in the exercise of the discretion as to whether the amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interest of justice. [Para 30][1141-D-E]
2. The judgment and order passed by the coordinate Bench of this Court in the Life Insurance Corporation of India (between the same parties) has no application so far as the present appeal is concerned. The appellant herein cannot succeed in the present appeal merely on the strength of the judgment and order passed by this Court in the Life Insurance Corporation of India. [Para 42][1148-D]
Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd. & Ors. (2018) 11 SCC 722 : [2017] 10 SCR
208 – held inapplicable.
3.1 The expressions “omits to sue” and “intentionally relinquish any portion of his claim” give an indication as to the intention of the legislature in framing the said rule. The term ‘sue’ can mean both the filing of the suit and prosecuting the suit to its culmination, depending on the context of the provision. In the present case, the legislature thought it fit to debar a plaintiff from suing afterwards for any relief which he/she has omitted without the leave of the court or from suing in respect of any portion of his claim which he intentionally relinquishes. Order II Rule 2(1) provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. [Para 45][1149-D-E]
3.2 The bar of Order II Rule 2 of the CPC applies only to the subsequent suits. If the two suits and the relief claimed therein are based on the same cause of action then the subsequent suit will become barred under Order II Rule 2 of the CPC. However, there is no merit in the contention raised on behalf of the appellant herein that the amendment application is liable to be rejected by applying the bar under Order II Rule 2 of the CPC. Order II Rule 2 of the CPC cannot apply to an amendment which is sought on an existing suit. Also not impressed by the contention raised on behalf of the appellant herein that the amendment application is hit by the principle of constructive res judicata. The principle of constructive res judicata has no application in the instant case, since there was no formal adjudication between the parties after full hearing. The litigation before this Court has come up at the stage when the courts below allowed the amendment of plaint for the purpose of enhancing the amount towards damages in the alternative to the main relief of specific performance of the contract. [Paras 49, 50 & 52][1152-D-E; 1153-G-H; 1154-A] Gurbux Singh v. Bhooralal AIR 1964 SC 1810 : [ 1964]
7 SCR 831 – followed.
Vaish Cooperative Adarsh Bank Ltd. v. Geetanjali Despande & Ors. (2003) 102 DLT 570 – approved.
4.1 The Act 1963 contemplates that in addition to or in substitution of a claim for performance, a plaintiff is entitled to claim compensation. Under sub-section (2) of Section 21, the court is empowered to award compensation for breach where it holds that there is a contract between the parties which was broken by the defendant but in the event, it decides that specific performance ought not to be granted. Sub-section (3) of Section
21 empowers the court to grant compensation for breach in addition to a decree for specific performance where it is of the view that specific performance alone would not satisfy the justice of the case. Sub-section (5), however, stipulates that compensation cannot be awarded under the section unless the Plaintiff has claimed such compensation in the plaint. This provision is mandatory. The proviso to sub-section (5) of Section
21 dilutes the rigours of the main provision by allowing the plaintiff who has not claimed such compensation in the plaint to amend the plaint at any stage of the proceedings and the court, it has been provided, shall at any stage of the proceedings allow an amendment for including a claim for such compensation on such terms as may be just. Section 22 has a non-obstante provision which overrides the CPC. A plaintiff who claims specific performance of a contract for the transfer of immovable property, may in an appropriate case ask for possession, partition and separate possession of the property, in addition to specific performance. The plaintiff may also claim any other relief including the refund of earnest money or deposit paid, in case the claim for specific performance is refused. Corresponding to the provisions of sub-section (5) of Section 21, sub-section (2) of Section 22 stipulates that such relief cannot be granted by the court unless it has been specifically claimed. However, the proviso requires that the court shall at any stage of the proceedings allow the plaintiff to amend the plaint to claim such relief where it has not been originally claimed on such terms which may appear just. [Paras 54, 55, 56 & 58][1154-B; 1155-B-E; 1156-D-E]
Shamsu Suhara Beevi v. G. Alex & Anr. (2004) 8 SCC
569 : [2004] 3 Suppl. SCR 653 – referred to.
4.2 The plaintiffs in the original plaint claimed for compensation in addition to a decree for specific performance of the agreement to sell. Therefore, strictly speaking the provisions of Section 21 of the Act 1963 are not attracted to the facts of the present case. The intention of the plaintiffs in seeking for amendment of the plaint appears to be to get an enhanced amount of compensation than what was originally claimed in the original plaint which was restricted only to Rs. 1,01,00,000/-. The aforesaid intention becomes apparent when the averments made in the application praying for amendment are looked into inasmuch as, the plaintiffs have stated that in view of the fact that in last 30 years there had been a tremendous escalation of the value of the suit property which has an adverse effect on the quantum of damages, compensation, relief sought for the breach of contract by the appellant/defendant. According to the plaintiffs the raising of the amount of compensation to Rs. 400,01,00,000/- from Rs. 1,01,00,000/- as claimed in the original plaint has been necessitated in view of undue delay in the prosecution of the suit which was not earlier foreseen, which in turn has caused more damage to the plaintiffs through the years and therefore, they have sought to raise the amount of compensation to the present value as stated above from Rs. 1,01,00,000/-. The two provisos referred to, deal with the question of permitting the plaintiff to amend his plaint. It is not, as if, in the absence of these two provisos, it is not permissible in law for the plaintiff to carry out an amendment in his pleading by introducing a relief for enhanced compensation. Rule 17 of Order VI of the CPC does confer power on a Court to allow a party to alter or amend his pleading in such manner and on such terms as may be just. This rule does not stop at that, but it further says that all such amendments should be made as may be necessary for the purpose of determining the real question in controversy between the parties. This provision which empowers the court in its discretion to permit a party to amend his pleadings, was already on the statute book, when the Specific Relief Act, 1963 was enacted. It can, therefore, be presumed that when the latter legislation was on the anvil, the Parliament was aware of this power of the court to permit amendment of pleadings. Therefore, it cannot be successfully urged that a suit for specific performance falling under the provisions of the Act, 1963 would not be governed by the provisions of the CPC. It is, therefore, clear that to such a suit the provisions contained in Order VI Rule 17 of the CPC would apply and a plaintiff who has earlier failed to incorporate the reliefs for compensation or who has incorporated the reliefs for compensation but seeks amendment in the same, could seek the permission of the court to introduce these reliefs by way of amendment. [Paras 64 & 66][1160-F-H; 1161-A-B, E-H; 1162A]
4.3 Final conclusions:
(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.
(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and
(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
(iv) A prayer for amendment is generally required to be allowed unless
(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
(vi) Where the amendment would enable the court to pinpointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. [Para 70][1162-G-H; 1163-A-H; 1164-A-H]
B.K. Narayana Pillai v. Parameswaran Pillai & Anr. (2000) 1 SCC 712 : [1999] 5 Suppl. SCR 271; Jagdish Singh v. Natthu Singh (1992) 1 SCC 647 : [1991] 2 Suppl. SCR 567– relied on.
Charan Das & Ors. v. Amir Khan & Ors. AIR 1921 PC 50; Kisandas Rupchand & Anr. v. Rachappa Vithoba Shilwant and Ors. ILR (1909) 33 Bom 644; Ragu Thilak D. John v. S. Rayappan & Ors. (2001) 2 SCC 472; Vishwambhar & Ors. v. Laxminarayan (Dead) through Lrs. & Anr. (2001) 6 SCC 163; Vineet Kumar v. Mangal Sain Wadhera (1984) 3 SCC 352 : [1984] 2 SCR 333 : AIR 1985 SC 817; Sanjeev Builders Pvt. Ltd. & Ors. v. Life Insurance Corporation of India 2018 SCC OnLine Bom 15283; Mohd. Khalil Khan & Ors. v. Mahbub Ali Mian & Ors. AIR 1949 PC 78; Upendra Narain Roy v. Rai Janoki Nath Roy AIR 1919 Cal 904; Kahini Developers Pvt. Ltd. v. Mukesh
Morarjipanchamatia & Ors. (2013) 3 Mah LJ 440; The Arya Pradeshak Pritinidhi Sabha, Sindh, Punjab & Bilochistan v. Lahori Mal & Ors. (1924) 6 Lah LJ
286 : AIR 1924 48 Lah 713; Somasundaram Chettiar v. Chidambaram Chettiar, AIR 1951 Mad 282; Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.