GOPAL DEBJIBHAI PATEL Vs. RISHAL SINGH

JUDGEMENT

(1.) It is a plaintiff's application challenging the order of the learned Subordinate Judge of Jeypore refusing to allow an application under Order 6. Rule 17 of the Code of Civil Procedure for amendment of the plaint.

(2.) Title suit No. 4 of 1973 was instituted for specific performance of an agreement dated 23-11-1971 by which defendants had undertaken to deliver a specified quantity of timber. Petitioner obtained an interim order of injunction against removal of the timber and when the interim order was rescinded. Miscellaneous Appeal No. 150 of 1973 was carried to this Court where injunction was again granted. During the pendency of the appeal, original defendant No. 1 died on 16-8-1973 and substitution was made on 22-11-1973. According to the plaintiff, notwithstanding injunction from this Court, defendants felled the standing trees, cut them into pieces, removed the logs and disposed of the same with a view to making the suit infructu-ous. The suit was posted for hearing to 14th Mar. 1978, when defendants were set ex parte. On 15th Mar. 1978, plaintiff applied for amendment of the plaint. The amendment was allowed and the suit was decreed ex parte on 20th Mar, 1978. On the basis of an application un- der Order 9, Rule 13 of the Civil P. C., the ex parte decree was vacated on 2-4-1979. The court ordered that a copy of the petition for amendment of the plaint should be served on the defendants and after hearing both parties rejected the application for amendment on 23-71979. In the application for amendment, the plaintiff had specifically pleaded that the necessity for the amendment arose on account of events that happened after the suit was filed and unless the alternate relief for compensation on the basis of the value of the timber was allowed, the suit would be rendered infructuous.

(3.) Mr. Murty in support of the application contends that the learned Subordinate Judge has gone wrong in accepting the plea of limitation. Plaintiff's case was that the relief for compensation became necessary to be asked for on account of events which happened during the pendency of the suit. For admitting consideration of the alternate relief, the date of institution of the suit was not material because the cause of action for the alternate relief was recent and no premium could have been attached to the pendente lite conduct of the defendants. Relying on the decision of Mukherji, J., as the learned Judge then was, in the case of Rajendra Nath Saha v. Saraswati Press Ltd.. AIR 1952 Cal 78, Mr. Murty argues that the original suit for specific performance could be converted by amendment into a claim for damages for breach of contract and such an amendment did not amount to altering the cause of action or the nature of the suit. In the self-same decision it was pointed out by the learned Judge that the cause of action in a suit for specific performance or damage was the breach of contract and, therefore, when in lieu of specific performance damages are asked for. the cause of action continues to be breach of contract and one relief which is impossible of performance on account of the defendant's conduct is substituted by the alternate relief asked for. The ratio of the decision reported in AIR 1952 Cal 78, is based upon an analysis of the law applicable to the facts of a case like the present one. Mr. Swamy for the other side relied upon a later Bench decision of the Calcutta High Court in the case of Gopi Nath Sen v. Bahadurmal Dulichand, AIR 1979 Cal 203, where the Court held that the question of granting relief by way of damages in lieu of or in substitution of specific performance is a matter resting entirely with the Court and parties have nothing to do with it. The plaintiff, therefore, could not be allowed to abandon the case for specific performance and yet claim damages in lieu thereof. That was a case where the plaintiff was not ready to perform his part under the contract. The latter case of the Calcutta High Court would not apply to the facts of a case of the pre-sent type. There is, therefore, no question of limitation in the present case.