RAMA NAND CHAUDHARY Vs. BHONRI

JUDGEMENT

(1.) IN January, 1968, one Bhanwar Singh (predecessor--in--interest of respondents Nos. 1 to 1-C) is stated to have entered into an agreement with Rama Nand plaintiff--petitioner for selling a piece of his land to the plaintiff for a consideration out of which Rupees 1,900.00are alleged to have been paid to him by the plaintiff. Instead of selling that piece of land to the plaintiff, Bhanwar Singh transferred the same along with his other land in favour of Mst. Dodi respondent by a registered sale-deed dated June 12, 1968, for Rs. 17,500. One of the terms of the alleged agreement for sale in favour of the plaintiff--petitioner was that in case of failure of Bhanwar Singh to sell the contracted piece of two kanals of land to him within the stipulated period the plaintiff would be entitled to have a sale of double the land, i. e. , four kanals for Rs. 2,400/ -. This led to the filing of the plaintiff's suit for specific performance of the agreement to sell in August, 1968. The suit was decreed ex parte in 1969. The application of the defendant for setting aside the ex parte decree under Order 9, Rule 13 of the Code of Civil Procedure having been dismissed on August 10, 1973, the defendant went up in appeal against that order under Order 43, Rule 1 of the Code which appeal was allowed on July 19, 1976, and ex parte decree was set aside on that day. Immediately on the suit going back to the trial Court issues were framed out of the pleadings of the parties and issue No. 4 was 'whether the plaintiff has been ready and willing to perform his part of the contract? (Opp)"

(2.) IT appears that the plaintiff realised immediately that though certain averments of fact had been made by him in a part of the plaint, which the plaintiff insists even now amount to a plea of the plaintiff being ready and willing to perform his part of the contract, no such specific averment had been made in the plaint. It was in these circumstances that in August, 1976, within a month of the setting aside of the decree and immediately after the framing of the issues the plaintiff made an application under O. 6, R. 17 of the Code for leave to amend the plaint so as to add paragraph 5a therein for specifically pleading that the plaintiff has been ready and willing and is still ready and willing to perform his part of the contract and that the breach of the contract had been committed by the defendant. The application was contested by the defendant (the vendor respondent ). After a detailed discussion of the law on the subject, the Court of Shri S. N. Chadha, Subordinate Judge First Class, Narnaul, dismissed the application of the plaintiff by his order dated Oct. 7, 1976. This is a petition for revision of that order.

(3.) IT is obvious from the above--quoted passage from the judgment that if the High Court had found that the plaintiff had made the requisite averment on both the points covered by S. 16 (c) of the Specific Relief Act it would have allowed the amendment. In the present case, the stage for recording of evidence has admittedly not yet arrived and the plaintiff made the application for leave to amend the plaint in this crucial respect at the earliest possible opportunity. He could not have made such an application before the ex parte decree was set aside. He made it within a month thereafter, i. e. , almost immediately. Therefore, in the circumstances of this case there was no delay on the part of the plaintiff to make the application. The Calcutta High Court judgment appears to me to be in favour of the plaintiff rather than against him. I am sure that if this aspect had been brought to the notice of the learned Subordinate Judge he would have allowed the application for amendment. The basic principles for allowing amendment have been laid down by the Supreme Court in Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, AIR 1969 SC 1267. In the circumstances of this case, refusal to allow the amendment is likely to cause grave injustice to the plaintiff. It is also significant that the defence of the respondent in the case is that there was no agreement to sell in favour of the plaintiff and, therefore, there was no question of the plaintiff being ready and willing to perform his part of the contract. The pleas already taken by the plaintiff were taken by both sides to cover this aspect of the case. That is why issue No. 4 was framed. It was by way of abundant caution that the plaintiff made the application at the earliest possible stage, as already held by me. There is no doubt that the suit for specific performance, if filed on the date on which the application for leave to amend was filed, would have been barred by time. As held in L. J. Leach and Co. v. M/s. Jardine Skinner and Co. , AIR 1957 SC 357, limitation is one of the matters to be taken into account in the exercise of the judicial discretion under O. 6, R. 17 of the Code. It is not necessary to dismiss an application for amendment merely because it would bring within time a suit which would have been barred by time by then.