CUDISE TRINATH RAO Vs. SUDHANSU PRASAD

JUDGEMENT

(1.) The challenge in this civil revision is to the order passed by the learned Addl. Subordinate Judge, Gajam, Barthampur allowing a prayer for amendment made by the plaintiff.

(2.) . The factual backdrop is as follows :- In a suit for specific performance of contract, an application was filed by the plaintiff for insertion of an averment to the effect that the plaintiff was always ready and willing to perform his part of the contract, and to add that being involved in a series of litigations and in order to liquidate certain statutory liability, an agreement for transfer of property was entered into, to raise funds for legal necessity. The learned Addl. Subordinate Judge came to hold that though the petition was filed at a belated stage, yet considering that the hearing of the suit had not commenced, the amendment was to be allowed. Therefore, he accepted the prayer for amendment, subject to payment of cost of' Rupees 100/-. The legality of the order is assailed primarily founded on the submissions that the suit being of specific performance of contract, readiness and willingness of the plaintiff to perform his part of the contract, constituted the essence for maintainability of the suit and that should not have been permitted to be brought in by an amendment. It was also pleaded that amendment once allowed relates back to the date of filing of the suit, and since the suit would have been hit by law of limitation, had it been filed on the date of application for amendment was filed, the amendment should not have been allowed. The learned counsel for the opp. party No. 1 however, submits that the petitioner having accepted the cost, which was a condition precedent to the acceptance of prayer for amendment, he is estopped for challenging the order passed by the learned. Addl. Subordinate Judge. The order is supported by a submission that the plea was already there and therefore, amendment has been rightly allowed. By a rejoinder reply, it is submitted by the petitioner that payment was accepted under protest, and the question of being estopped from challenging the order did not arise.

(3.) I shall deal with the acceptance of cost aspect first. Undisputedly, the cost awarded was offered to the learned counsel for the defendant No. 2 in the Court below, who accepted the same under protest. The cost having been accepted with reservation, there was no disentitlement from challenge.