BIRENDRA KUMAR SINGH Vs. JAYANT KUMAR DUTTA

JUDGEMENT

(1.) This revision petition has arisen against the order dated 28-3-1998 passed by Sub-Judge-I,- Dumka, in Title Suit No. 37 of 1992 whereby and whereunder the amendment sought for by the petitioners has been rejected.

(2.) The petitioners as plaintiffs filed the above-mentioned suit against the defendants- opposite parties for getting the Kebala in res- pect of the scheduled land from the defendants on the basis of the agreement for sale arrived at. It was the contention of the plaintiff s^n the suit that the agreement for sale was arrived at on payment of an amount towards the consid- eration for sale and the possession was re- mained with the plaintiffs as they were in pos- session over the same as tenant of the defend- ants. But, with this plea or that the sale-deed was not being executed, although the plain- tiffs were pressing for the same. But, on dif- ferent occasions further payments were taken from the plaintiffs by the defendants towards the agreement for sale. Lastly, the plaintiffs finding no other alternative had filed the suit for specific performance as mentioned above. It was mentioned in para-14 of the plaint that as to how the plaintiffs were always ready with money for getting the Kebala executed in fa- vour of them by the defendants. Both the par- ties adduced evidence and when the suit was at the ripen stage for disposal then the plain- tiffs came up with the prayer for amendment under Order VI, Rule 17 of the Code of Civil Procedure of the plaint for inclusion of an aver- ment in the plaint as required under Section 16(c) of the Specific Relief Act to the effect that the plaintiffs were and are always ready and willing to perform part of their contract by payment of balance amount to the defen- dants to get Kebala executed by them. I may be mentioned that bulk of the consideration amount had already been paid from the side of the plaintiffs to the defendants. The amend- ment sought for has been vehemently objected to from the side of the defendants and the learned Court below after hearing both the par- ties came to the finding that the amendment sought for shall change the nature and cause of action of the suit and that such amendment cannot be allowed at such belated stage when few non-mentioning of readiness as per man- datory provisions of Section 16(c) of the Spe- cific Relief Act had accrued a right in favour of the defendants adverse to the plaintiffs.

(3.) It has been argued for and on behalf of the plaintiffs-petitioners that the learned Court below committed error of law in reject- ing the prayer for amendment when such prayer was made only to fulfil the technicality and formality under Section 16(c) of the Spe- cific Relief Act. It has been pointed out by re- ferring para-14 and other paragraphs of the plaint that practically the plaintiffs had shown their intention in the plaint itself as to how they were always ready and willing to perform their part of the contract. Only due to .inad- vertence or mistake the specific averment as required under the law had not been mentioned and that was only to be included which did not in any way change the nature of the suit nor the cause of action has been changed.