RAMAKURUP NARAYANA KURUP Vs. OOMMAN EAPEU

JUDGEMENT

(1.) THE Plaintiff is the Petitioner. His application to have the plaint amended was dismissed by the Munsiff. This revision petition challenges that order.

(2.) THE suit is for specific performance of a contract for sale of immovable property. The plaint contains 19 paras and a narration in detail of whatever happened in respect of the contract. Paragraph 7 mentions a contract in Makaram 1118. The next paragraph referred to a suit, O.S. 424/119 filed by the parties bound to convey as per the contract apparently in repudiation of that liability. It is stated at the bar in argument by learned Counsel for Respondent 2 Mr. Varghese that the suit was filed on 28 -5 -1119. Paragraph 9 refers to other proceedings not in conformity with the contract. After referring in para 10 to some connection that the Plaintiff had with the properties otherwise than under the said contract to sell, para 11 proceeds to state the circumstances under which a settlement was effected between the parties to the contract through the mediation of a named person and the arrangements thus come to as regards the conveying of the property to the Plaintiff as also as regards the expenses incurred in connection with the proceedings started subsequent to the contract. One of the terms was that the Plaintiff should bear the expenses incurred in connection with those proceedings as well. This was on 10 -7 -1121. In para 11 two suits are mentioned by number. There appears to have been yet Anr. suit which, is not expressly mentioned in that paragraph. In para 19 of the plaint, however, it is expressly stated that should it be found that the Plaintiff is liable to pay any other amounts than that shown in the plaint as the expenditure in respect of the 2 suite expressly mentioned, he is agreeable to pay that amount as well. In para 18 while mentioning the date of the actual cause of action, the 10th day of Kumbhom 1121 is mentioned which is the date of the final settlement of the matter through the arbitrator. The Plaintiff having relied upon an agreement of Makaram 1118 which was repudiated by the Defendants the parties joined issue thereupon and issue No. 2 was the result, which runs thus: "Is the agreement set up in para 7 of the plaint true - All the evidence that the parties wanted to adduce was taken and the case was, argued. It was at the conclusion of the argument that the application for amendment was made by the Plaintiff, and it was mainly for that reason that the learned Munsiff dismissed it. He says:

(3.) IT appears to me that even without the introduction of these matters sought to be brought in by the amendment, the plaint is in perfect form and would admit of the granting of the reliefs asked for in the plaint on the averments made therein. The amendment would appear to be only one sought to be made to avoid an objection being raised about the form of the plaint. As already stated all the averments necessary to entitle the Plaintiff to the relief have been made already in the plaint. What the learned Munsiff means by saying that the application is mala fide, I am not able to see. If it means as is evident by some part of the order that the Plaintiff wants to protract the proceedings which is very much against his interest, learned Counsel for the Petitioner assured me that the Plaintiff does not want to adduce any more evidence in the case and is content to have the case argued upon the evidence already on record. He is further agreeable that the Defendants may be permitted to adduce whatever other evidence that they want to adduce and to file fresh written statements upon the amended plaint. Protraction of proceedings is, therefore, not one of the objects of the Plaintiff. Learned Munsiff says that the amendment is brought in to fit in with the evidence in the case. The matters brought in are not fresh matters. They are, as already stated, in the plaint as originally filed. As to the date 28 -5 -1119 though it is not as such in the plaint, it is there in effect in the reference made to O.S. 494/119 which was stated to have been filed in violation of the agreement alleged in para 7, the date of which is now admitted at the bar to be 28 -5 -1119. It is clear that the cause of action for enforcement of the agreement which might arise on knowledge of violation of the terms of the agreement is referred to already in the plaint. The suit was filed on 11 -3 -1122 which is within three years of the date of the act done by the party liable to convey which may involve or indicate a violation of the agreement or a repudiation of it. Learned Counsel for the Respondent here urged before me that if the amendment is allowed, it will change the cause of action. The argument is clarified by stating that whereas the 1121 agreement is mentioned as the cause of action in para 18 of the plaint, the introduction of 28 -5 -1119 which is the date of the violation of the agreement of Makaram 1118 would be introducing a fresh cause of action. This argument having been raised, reference has to be made to two decisions of the Privy Council. Their Lordships say that the term "cause of action" cannot be taken in its literal and most restricted sense. It has to be considered rather with reference to the substance than to the form of action. Their Lordships also say that the cause of action means the media on which the Plaintiff relies to arrive at the conclusion in the case in his favour. See -'Krishna Behari v. Brojeswari Chowdranee', 2 Ind App 283 (P.C.) (A); -'Mt. Chand Kour v. Partab Singh', 15 Ind App 156 (P.C.) (B). More citation is unnecessary because these principles are well known and have always been accepted and acted upon,