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 respect of the scheduled land from the defendants on the basis of the agreement for sale arrived at. It was the contention of the plaintiffs in the suit that the agreement for sale was arrived at on payment of an amount towards the consideration for sale and the possession was remained with the plaintiffs as they were in possession over the same as tenant of the defendants. But, with this plea or that the sale -deed was not being executed, although the plaintiffs were pressing for the same. But, on different 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 favour of them by the defendants. Both the parties adduced evidence and when the suit was at the ripen stage for disposal then the plaintiffs 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 averment 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 defendants 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 amendment sought for has been vehemently objected to from the side of the defendants and the learned Court below after hearing both the parties 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 mandatory provisions of Section 16(c) of the Specific Relief Act had accrued a right in favour of the defendants adverse to the plaintiffs.

(3.) ON the other hand, learned Senior Advocate for the opposite parties by referring to different judgments of the apex Court as reported in : [1996]1SCR768 in the case of Radhika Devi v. Bajrangi Singh and Ors. and : [1995]3SCR960 in the case of K. Raheja Constructions Ltd. v. Alliance Ministries and Ors. submitted that the amendment sought for is hopelessly barred by limitation as the agreement for sale was executed in the year 1986 and the suit was field in the year 1992 and the amendment has been sought for in the year 1996. His contention is that even if the limitation is construed from the date of filing of the suit as cause of action then also prayer made for inclusion of the amendments as per mandatory provisions of Section 16(c) of the Specific Relief Act is hopelessly barred by limitation.