PADMAVATHAMMA Vs. SUGUNA FERTILIZERS

JUDGEMENT

(1.) Plaintiffs 3 to 5 in O.S. No. 19 of 1974 on the file of the Principal Subordinate Judge, Anantapur are the petitiontrs. The suit was filed for specific performance of an aggreement dated January 3, 1973 to supply fertilizer. In the said suit the petitioners did not ask for damages or compensation. Later they filed I. A. No. 473 of 1980 for amendment of the plaint with a prayer that the Court award damages in the event of contract becoming unenforceable. The petition was contested by the defendant contending that the amendment changes the nature of the suit and the alternative reliefs seeking damages is also barred by limitation. The trial Court dismissed the petition. Hence the revision.

(2.) The learned counsel for the petitioners submits that the language in Section 21 (5) of the specific Relief Act 47 of 1963 (the Act) is clear in this regard and provides that in a suit for specific performance, damages in the alternative can be asked and the plaint can be amended at any stage of the proceeding and the provisions of the Indian Limitation Act do not bar such a relief being sought.

(3.) Section 21 of the Act deals with the power of the Court to award compensation. Sub-Clause (1) of Section 21 of the Act lays down that in a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance. Sub-clause (5) of Section 21 of the Act limits the power of the Court and lays down that no compensation shall be awarded unless the plaintiff has claimed such compensation in his plaint. The proviso to sub-clause (5) of Section 21 however provides that where the plaintiff has not claimed any such compensation in the plaint, the Court, shall at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation. Section 22 of the Act deals with the power of the Court to grant relief for possession, partition, refund of earnest money etc. Sub-clause (2) of Section 22 of the Act lays down that no relief under clause (a) or clause (b) of sub-section (1) of Stction 22 shall be granted by the Court unless it has been specifically claimed. But the proviso to sub-clause (2) of Section 22 of the Act which is in the same language as that of the proviso to sub-clause (5) of section 21 of the Act provides that the plaintiff can seek amendment of plaint at any stage of the proceeding and such amendment can be allowed on such terms. It can therefore be seen that proviso to sub-clause (5) of Section 21 is clear and unambiguous and enables the plaintiff to seek the amendment of the plaint at any stage of the proceeding. The object obviously is to avoid multiplicity of suits. In. Ex-Servicemen Enterprises vs. Sumey Singh it was held that the term 'proceeding' used in these provisions is a very comprehensive term and includes execution proceedings also and the expression " at any stage" in its literal ond actual meaning means without limitation either in frequency or duration or length of time and the expression used gives the widest freedom to a court of law so that it may do justice to the parties in the case. The learned judge also observed that the amendment for including the relief of possession can be allowed under the proviso to sub-clause (2) of Section 22 of the Act even during execution proceedings. The view taken by the Delhi High Court has been affirmed by the Supreme Court in Babulal vs. Hazari lal Kishorilal. Their Lordships referred to the observations made by the Delhi High Court in Ex-Servieemen Enterprises vs. Sumey Singh and approved the same and held that they are in complete agreement with the view taken by the Delhi High Court. It can therefore be seen that the Courts have interpreted the proviso to sub-clause (2) of Section 22 of the Act which is also in the same language as that of the proviso to sub-clause (5) of Section 21 of the Act in such a manner enabling the plaintiff to get his plaint amended at any stage of the proceeding on such terms as may be just. The expression "at any stage" in it means without limitation either in frequency or duration or length of time. The Supreme Court in Babulal vs. Hazari Lal Kishori Lal as a matter of fact observed that the 'proceeding' is wide term giving the widest freedom to a Court of law and that execution is also one of the stages in the legal proceedings and that in a journey of litigation there are various stages. Therefore the question of applying the provisions of the Indian Limitation Act in a case where an amendment of the plaint is sought cither under sub-clause (5) of Section 21 or sub-clause (2) of Section 22 of the Act does not arise. The learned counsel for the respondent however relied on two decisions viz., Laxmidas vs. Nanabhai and P. Ramanna vs. GramPanchayat. Both these cases are distinguishable and they do not deal either with sub-clause (5) of Section 21 or sub-clause (2) of Section 22 of the Act. In the first case Their Lordships held that the amendment would ordinarily be refused when the effect of the amendment could be to take away from a party a legal right which had accrued to him by lapse of time. There cannot be any dispute about this ratio. To the game effect is the decision in P. Ramnna vs. Gram Panchayat. In the instant case we are concerned with the proviso to sub-clause (5) of section 21 of the Act. A specific relief is an equitable remedy and the courts are competent to grant the relief sought for or other specific remedies which are incidental. It is a matter of common knowledge that in some cases the contract becomes unenforceable and the party suffers some loss. In such a case it is open for the party to ask for damages in the alternative in the same suit and section 21 of the Act provides for the same. In number of cases the Courts have held that where performance becomes impossible, the defendant cannot be allowed to escape scot-free and the Court will award compensation for the non-performance of the contract. That being the affect of Section 21 of the Act the amendment to the plaint as contemplated under the proviso should also be granted whenever it is just and necessary.