TRIPTA DEVI Vs. MAHENDAR WATI

JUDGEMENT

(1.) THIS revision petition is filed against the order of the learned District Judge, Faridabad, dated 21. 11. 1997 allowing the application to amend the plaint. The plaintiff filed the suit for specific performance of agreement of sale dated 30. 11. 1988 which was dismissed by Sub Judge, 1st Class, Faridabad, on 17. 9. 1994. Against the dismissal of the suit, the plaintiff preferred an appeal bearing Civil Appeal No. 58 of 1994. In the appeal, she filed an application for amendment of the plaint under order 6, Rule 17 of the Code of Civil Procedure. By way of amendment, the plaintiff wants to have the plea that she has always been willing and ready to perform her part of the contract and is still ready and willing to do so. She did everything in her power and control to get the plot in dispute transferred in her favour in accordance with the terms of the agreement of sale dated 30. 11. 1988. She had got ready balance sale consideration with her which was tendered to the defendant for acceptance and that the defendant did not perform her part of the contract with malafide intention and thus committed the breach of the contract of sale dated 30. 11. 1988, this application for amendment was allowed by the impugned order.

(2.) THERE cannot be any dispute that the amendment should be refused only where the other party cannot be placed in the same position in which it would be as if the pleadings had been originally correct. But the amendment would be declined if it causes him injury which cannot be compensated in costs. It is also no doubt true that the appellant cannot be permitted to amend the plaint after the suit was dismissed or if the claim by way of amendment gets barred by time during the proceeding. But in the present case, the suit as originally filed relates to specific performance of an agreement of sale. The suit was not barred by time when it was filed. Further the amendment sought does not change the cause of action. By the amendment, the plaintiff is only seeking to take the plea that she is ready and willing to perform her part of the contract. The plea sought to be taken does not introduce a new case or alter the nature of cause of action which accrued to the plaintiff. Whether the plaintiff is ready and willing to perform her part of the contract is a matter of evidence. Whether the plaintiff cannot be allowed to adduce further evidence is a different matter to be declined by the District Judge on the basis of the material placed before him.

(3.) THE revision Petition, therefore, fails and is accordingly dismissed.