MANAKCHAND Vs. DHANRAJ

JUDGEMENT

(1.) 1This revision petition u/s 115 of the Code of Civil Procedure (for short 'the Code') is directed against the order dated 3 -9 -85 passed by Shri S. K. Pandey,

(2.) Additional Judge to the District Judge, Indore in C. S. No.47 -A of 1985 whereby be has allowed the respondents' application filed on 25 -6 -83 for amendment of the plaint seeking thereby to incorporate the relief of mesne profits, in the suit for specific performance of contract to sell immovable property. Circumstances giving rise to the petition are these. Respondents instituted the aforesaid suit against the petitioners on 13 -7 -79 for specific performance of contract dated 24 -5 -76 according to which the petitioners bad agreed to sell the house in dispute to them.

(3.) BY the impugned amendment the N. As. have sought to incorporate a claim for mesne profits at the rate of Rs. 1000/ - per month as they have been deprived of the possession of the house in question. The date from which mesne profits are claimed has not, however, been stated. 1959 JLJ 718, AIR 1959 MP 232. 5. Learned lower Court, observing that the evidence is yet to be taken, allowed the amendment application. 6. The point for determination is whether the impugned order deserves to be set aside. 7. The decision of a case cannot be based on grounds outside the pleadings of the parties and this highlights the importance of pleadings. Therefore claim for mesne profits bas to be pleaded. 8. Courts exist for doing substantial justice between the parties, and the rules of procedure are meant only to subserve the cause of justice. With that end in view, the procedural law bas to be liberally construed. It is in the interest of justice that litigations are shortened and mulitiplicity of actions is avoided. O. 6, R. 17 of the Code is designed to cloth the Courts, as is clear from the words employed therein, with wide discretionary powers in the matter of amendment so as to ensure that initial mistakes in drawing proper pleadings may re corrected by suitable amendments and justice is done. It may be noted that provision enjoins that amendments necessary for the purposes of determining the real questions in controversy between the parties have to be allowed. As pointed out in Nichhalbhai's case [1] where the amendment does not introduce new or inconsistent cause of action and occasions no injustice to the other side, it should be allowed. In the decision in A. K. Gupta and Sons Ltd. case [2] it has been explained that the expression 'cause of action" in the context of the provision of O. 6, R. 17 of the Code only means a new claim made on a new basis constituted by new facts. The fact that amendment application has been made after undue deley is not by itself sufficient to reject it. However, where it is coupled with malafide or works injustice to the other side which cannot be compensated by costs, the proper exercise of the discretion would be to reject it. In this connection, the decision in Jai Jai Ram Manohar Lal's case [3] may usefully be perused. 9. As pointed out in the decision in Sayed Ali's case [4] circumstances under which the prayer for amendment is to be allowed or disallowed cannot be exhaustively enumerated and what would be the proper order to be passed in the particular case must necessarily depend on a consideration of its facts and circumstances. Where the proposed amendment is not foreign to 1he subject matter of the suit and it is considered that allowing the same would be in the interest of justice in the case, it should be allowed. In this connection, the decisions in Md. Salih's case [5] pointing out that O. 96, R. 17 CPC is in two distinct parts is pertinent. 10. It may also be pointed out that even where the proposed amendment involves question of limitation, it does not touch the power or jurisdiction of the Court but has a bearing only on the question of exercise of its discretion. In this connection, the decision in Leach and Co. Ltd.'s [6] case is pertinent. If the dictates of justice in the case require that the amendment should be allowed, it has to be allowed. 11. The contention of the learned counsel for the petitioners that by the amendment even time barred claim has been allowed to be incorporated is without merit. As already pointed out the amendment does Dot specify the date from which mesne profits are claimed. 12. The expression mesne profits as defined in Section 2 (12) of the code is linked with the question of possession of property and it cannot therefore, he said that the claim for mesne profits is foreign to the scope of the suit and the controversy. It is true that in a suit for specific performance sale of the property crystallises in favour of the purchaser on the date when a decree for specific performance is passed in his favour and does not date back to the date of the agreement. In this connection, the decision in Ishar Singh's case [7] may usefully be perused. However, it is well -settled that in considering the question of amendments its merits have not to be gone into for it is only after the amendment is allowed that it can properly form the subject matter of trial on merits. 13. On a careful consideration of the facts and circumstances of the case in the light of the principles discussed above, I am of the view that the impugned order is not liable to be interfered with.