LAWS(CAL)-1997-3-14

SK ROUSHAN ALI Vs. KAZI ABDUL JALIL

Decided On March 04, 1997
ROUSHAN ALI Appellant
V/S
KAZI ABDUL JALIL Respondents

JUDGEMENT

(1.) This is an application for amendment of the plaint filed at the instance of the plaintiff/appellant at the appellate stage. A suit for specific performance of an agreement for sale of land and structures described in the schedule of the plaint in terms of an agreement dated 17th November, 1993 was instituted by the plaintiff-appellant in the 3rd court of the Assistant District Judge, Alipore, which ended in dismissal. Before we proceed further, it may be kept on record that no objection was raised by the defendant respondent in the trial court as to the maintainability of the suit for specific performance of the contract for sale in the absence of the averments in the plaint that the plaintiff-appellant had performed or had always been ready and willing to perform the essential terms of the contract which were to be performed by him. The trial court proceeded with the trial of the suit and the defendant respondent fully participated therein without any objection either in his pleadings, evidence or arguments as to the form of pleading as noted hereinabove that is to say the defendant-respondent in the trial court did not raise the question that the plaint does not conform to the provisions as contained in section 16(c) of Specific Relief Act. From the judgment of the trial court, it also appears that the issue of maintainability of the suit was not pressed by the defendant-respondent. In the course of hearing of the present appeal, a question cropped up as to whether the plaintiff in his plaint has sufficiently averred his readiness and willingness in terms of scope, meaning and requirement of Clause (c) of section 16 of the Specific Relief Act. In the application for amendment of the plaint, the plaintiff appellant has however, alleged that although sufficient averments have been made by the plaintiff-appellant in the plaint and the evidence adduced in respect of section 16(c) of the Specific Relief Act for abundant caution this application for amendment is filled by the plaintiff-appellant.

(2.) This application for amendment of the plaint is heard in the presence of the learned counsel for the parties. According to Mr. Dasgupta, appearing on behalf of the plaintiff-appellant, the plaintiff appellant, even if it is taken that substantial averments in respect of section 16(c) of the Specific Relief Act have not been made by the plaintiff/appellant, he is still entitled to amend the plaint in appeal to incorporate the averments in terms of section 16(c) of the Specific Relief Act. Mr. Dasgupta, contended that such amendment neither shall invite the question of limitation nor shall change the nature and character of the suit. In support of this contention, Mr. Dasgupta has relied firstly on a decision of the Supreme Court in the case of Gajanand Jaikishan Joshi v. Prabhakar Mohanlal Kalwar reported in 1990(1) SCC 166 and also on two Division Bench decisions of this court in the case of Barnik Roy @ Harekrishna Ray v. West Bengal Housing Board & Anr. reported in AIR 1985 Calcutta 362 and in the case of Byomkesh Banerjee v. Nani Gopal Banik reported in AIR 1987 Calcutta 92. Mr. Dasgupta has also relied on a Gujrat High Court decision which is reported in AIR 1988 Guj 42 (Rajya Tulsibhai Patel v. Benar Enterprises & Ors). This contention of Mr. Dasgupta was contested by Mr. Ghosal appearing on behalf of the defendant-respondent, Mr. Ghosal contended that the question of limitation shall automatically arise if the plaintiff had failed to aver or plead in the plaint that he was ready and willing or still ready and willing to perform his part of the contract in terms of section 16(c) of the Specific Relief Act. In support of this contention Mr. Ghoshal has relied on a Supreme Court decision in the case of M/s. Ganesh Trading Co. v. Moji Ram reported in AIR 1978 SC 484 Mr. Ghosal particularly relied on the paragraph 5 of the Supreme Court decision in order to satisfy us that the question of limitation shall arise if the averments in terms of section 16(c) of the Specific Relief Act are not made in the plaint as the period of limitation for filing a suit for specific performance for contract for sale is three years from the date of entering into the agreement for sale. Mr. Ghosal further contends that in any view of the matter, the prayer for amendment cannot be allowed at the appellate stage in the facts and circumstances of this case. In our view, the question of limitation cannot arise in this case. Admittedly, the suit for specific performance was filed within the period of limitation, that is to say, the suit was filed within three years from the date of entering into the agreement for sale. By the amendment of plaint, the plaintiff only seeks to incorporate the facts required to be made in terms of section 16(c) of the Specific Relief Act, which were required to be done at the time of filing the plaint. In our view, by incorporating the averments as required under section 16(c) of the Specific Relief Act, there cannot be any question of any fresh cause of action to be introduced by applying for amendment of the plaint. Gajanand Jaikishan Joshi v. Prabhakar Mohanlal Kalwar reported in 1990(1) SCC 166, the Supreme Court in paragraph 6 has observed as follows :

(3.) Relying on the aforesaid observation of the Supreme Court, it must be held that as there is no fresh cause of action sought to be introduced by the amendment and hence, no question of limitation shall arise nor shall cause any injustice to the defendant/respondent on that account arise.