SHEIKH BASHA SAHIB Vs. ABDUL SHARIFF AND ANOTHER

JUDGEMENT

(1.) This is a Revision filed by the defendant in O. S. No. 1043 of 1987, on the file of District Munsifs Court Kallakurichi.

(2.) The suit filed by respondents was one for a permanent injunction and also to direct the petitioner to demolish that portion of the building alleged to have been constructed by him unauthorisedly by a decree of mandatory injunction. In that suit, the respondents filed I. A. 2068 of 1993 seeking amendment. The amendment was in the nature of an alternative relief claiming damages. By the impugned order the lower Court allowed the same. The defendant has come upon Revision challenging the same.

(3.) Proviso to sub-section 2 of Sec. 40of the Specific Relief Act enables the plaintiff to amend the plaint at any stage of the proceeding. There is no discretion for the Court in refusing the amendment. The amendment application seeking damages cannot be refused on the ground of lack of bona fides, or that it is belated, or that the claim is barred by limitation. I am bound by the Bench decision in V. R. Nathan Vs. Mac Laboratories (P.) Ltd reported in AIR 1975 Madras 189, wherein this Court has held that the proviso is imperative and the Court has no option but to grant the amendment of the plaint. The said decision was followed by a single Judge of the Delhi High Court in Jagdish Vs. Har Sarup reported in AIR 1978 Delhi 233. It was held in that decision that even though Order 6 Rule 17 of the Civil Procedure Code enables the Court to exercise the discretion. Sec. 40 of the Specific Relief Act makes it imperative for the Court to slow the amendment. Their Lordships have roted the difference in the language used in under 6 Rule 17 of the Code of Civil Procedure and Sec. 40 (2) of the Specific Relief Act. It a also held in A. M. S. Paramasiva Mudaliar Vs. M. S. Munirathina Mudaliar reported in (1983) 96 Law Weekly 119 that amendment of plaint even though it is barred by limitation can be allowed. In this case, the amendment sought in the nature of an alternative relief inly. Hence the petitioner can never be prejudiced. There is no change in the cause of action or in the nature of suit.