RAMAKRISHNAN Vs. SUBRAMANIAN

JUDGEMENT

(1.) THE Civil Revision Petitioner / respondent / defendant has preferred this Civil Revision Petition aggrieved against the order dated 16.07.2008 passed in I.A.No.303 of 2006 in O.S.No.279 of 2006 by the learned Principal District Munsif, Karaikal, in allowing the application for amendment of plaint filed under Order 6 Rule 17 and 18 of Code of Civil Procedure by the respondent/petitioner/ plaintiff.

(2.) THE trial Court while allowing the I.A.No.303 of 2006 has inter-alia observed that 'the effect of wrong mention of property in the agreement will be decided at the time of trial. If the petition is allowed, it will not prejudice to the respondent/defendant. ...etc..' and has resultantly allowed the application without cost.

(3.) ADDED further, the learned counsel for the revision petitioner/defendant also cites a decision " K. Raheja Constructions Ltd., and another ..vs.. Alliance Ministries and others" of the Honourable Supreme Court reported in "(1995 Supp (3) Supreme Court Cases 17)", wherein the Honourable Supreme Court as among other things observed that 'Limitation Period of three years under Article 54 of Limitation Act having elapsed, grant of the amendment would defeat the valuable right of limitation accruing to the respondents ... etc..'. He further presses into service the decision "Ganesh Shet ..vs.. Dr.C.S.G.K.Setty and others " of the Honourable Supreme Court reported in " AIR 1998 Supreme Court 2216 at page 2220 at paragraph 16" where under, it is observed that 'The Court would not in a case of this description permit the plaintiffs to depart from the case made in the plaint as the Court discourages, as a rule, variance between pleading and proof. The test to be applied in such cases is whether if the variance were permitted in favour of the plaintiffs, defendants would be taken by surprise and be prejudiced thereby.' Moreover, in the aforesaid decision, the learned counsel for the revision petitioner at page 2220 relies on the observations made in paragraph Nos. 17 and 18 which inter-alia run as follows: "17. A.N. Ray (as he then was) in Md. Ziaul Haque ..vs.. Calcutta Vyapar Pratisthan, (AIR 1966 Cal 605), referred to the special rule applicable to suits for specific performance and also relied upon Hawkins -vs- Maltby, (1867) 3 Ch A 188). The learned Judge observed (Para 31 of AIR): "In Nil Kanta's case 19 Cal WN 933 : AIR 1916 Cal 774, it was said that when a plaintiff alleged a contract of which he sought specific performance and failed to establish in the Court would not make a decree for specific performance of a different contract. Reliance was placed on Hawkins -vs- Maltby, reported in (1867) 3 Ch A 188). ... Emphasis was rightly placed on the aspect of the plaintiff's case pleaded that there was an agreement in the month of August and that the plaintiff failed to prove that case and the plaintiff having completely abandoned that case of agreement in the month of August, any attempt on behalf of the plaintiff to make recourse to May agreement would be to have a decree for specific performance of an agreement which was not the agreement of the parties according to the plaintiff." The above special principles applicable to cases of specific performance can be also gathered from standard works under the England (English) Law, where the above English cases and other cases have been cited. 18. Halsbury's Laws of England (Vol.44, 4th End. 1984) (Specific Performance, para 443) (f.n.1) states, after referring to Pillage -vs- Armitage. (1805), 12 Ves 78), that the plaintiff having failed to prove an agreement which he had set up, was refused specific performance of a different agreement admitted by the defendant Cf.Legal v. Miller. (1750) 2 Ves Sen 299."