BORANNA Vs. KYATHANNA

JUDGEMENT

(1.) i have heard the petitioner's learned Advocate as also the respondents' learned advocate. In this case, the petitioner who is the original plaintiff had contended that his property was sold to the defendants in the year 1972 under a sale deed and that the consideration was only Rs. 1,000/-. It is his case that the transaction was more from the point of view of security for the amount and that therefore the agreement specifies that if the amount was repaid along with interest within a period of sixteen years, that the property would be reconveyed. Plaintiff contended that he has repaid the amount to the defendants' father in the year 1985 i.e., within a period of sixteen years and that the defendant has not reconveyed the property for which reason, he approached the court. Effectively, he is seeking for reconveyance of that property on the ground that according to him the loan was discharged within the prescribed period. In the written statement, the defendant has denied the receipt of the repayment at which stage, the plaintiff filed an application for amendment of the plaint whereunder he desires to take up the alternate plea that he is willing to pay the amount along with interest which by that stage aggregated to Rs. 5,800/-. The defendants objected to such an amendment being permitted on the ground that it virtually makes out a new case, that the amendment is belated having come forward after the written statement is filed and under these circumstances, that the application should be rejected. The learned trial judge relied on earlier decisions of this court in the case of Thimme Gowda v Kalegowda, in support of the proposition that in a suit for specific performance, it is a requirement of law that the plaintiff has to aver that the plaintiff is ready and willing to perform his obligations and in the absence of such an averment, that the suit is liable to fail. The learned trial judge proceeded to hold that a belated offer to perform the obligations cannot cure such a defect and that therefore, the amendment cannot be permitted.

(2.) petitioner's learned Advocate submitted that this reasoning of the learned trial judge runs contrary to the decision of the Supreme Court in the case of Gajanan Jaikishan Joshi v Prabhakar Mohanlal Kalwar, wherein the Supreme Court while considering the provisions of Order 6, rule 17, C.P.C. and the facts of that case did observe that the alteration of the pleadings to this limited extent would not really make out a new case and that if a genuine cause had been shown for the error of drafting, that a court should normally allow corrective action and not penalise the plaintiff as the entire suit would fail if the court were to take a very strict view of the matter. As far as this aspect of the matter is concerned, petitioner's learned Advocate is right to the limited extent that if it is a question of rectifying an error that has taken place in the drafting, a court would not normally shut out a plaintiff provided again, that the rectification is sought to be done in good time. This court has come across situations wherein frivolous amendment applications are made and that too, untimely ones for instance, such applications which are preferred when the evidence is complete, arguments are over and the court is about to dictate the judgment, and in all such situations a court would be justified unless valid ground is shown, in straightaway dismissing the amendment application because it is very clear that the sole purpose is in Order to dilate and virtually sabotage the dismissal of the matter.

(3.) the position does not however rest there. Respondents'learned Advocate submitted that the amendment in the present case is not confined to indicating the willingness and reasonableness of the plaintiff to discharge his obligations but that it is a situation where an entirely new case is made out. He clarifies that whereas originally the case was that the loan has been discharged, that through the amendment a contention is being raised for the first time that the plaintiff is willing to discharge the loan amount with interest. Respondents' learned Advocate vehemently objects to this being permitted because he contends that it makes out a new case and furthermore, that the agreement prescribe a time-limit of 16 years from 28-1-1972 which expired in the year 1988 and that therefore, it is not permissible for the plaintiff to pray for any reliefs if the payment is made beyond this period.