Oskar Louis vs K.V. Saradha

K.P. Radhakrishna Menon, J.—The second defendant is the revision petitioner.

The order under challenge is one by which the Court below has allowed the application I.A. No. 3724/ 88 seeking amendment of the plaint. The order reads :--

"This is a petition filed by the plaintiff to amend the plaint. The defendant filed strong objections. The main objection is that if it is allowed it will work out injustice to the defendant. I cannot agree with that view. The second objection is that it is highly belated. It is true that the petition is highly belated. It does not mean that the petition cannot be allowed. Hence I allow the petition on payment of cost of Rs. 200/-. For payment of cost."

The learned counsel for the petitioner submits that if the amendment is allowed the character of the suit will be changed. In other words the additional facts sought to be introduced in the plaint by the amendment would enable the plaintiff to rest his suit on a different cause of action.

Is the above argument sustainable, is the question before me. To get an answer, one has to ascertain the meaning of the word ''cause of action''. Generally stated it means every fact which it is necessary to establish to support right or obtain judgment. To put it differently, it means bundle of essential facts which it is necessary for the plaintiff to prove before he can succeed in the case. It can as well be said to be the media upon which the Court arrives at a conclusion in the suit in favour of the plaintiff. Yet another shade of meaning is this:

"A cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment."

Having understood the position thus let us see what are the essential facts that should be averred and proved by a plaintiff in a suit for specific performance to justify a Court in rendering a judgment in his favour. A suit for specific performance as observed by the Supreme Court in Ouseph Varghese Vs. Joseph Aley and Others, , has to conform to the requirements prescribed in Forms 47 and 48 of the First Schedule of the C.P.C. and it is well settled that in a suit for specific performance the plaintiff should allege that he was and has been ready and willing to perform his part of the contract. That means the fact that the plaintiff was and has been ready and willing to perform his part of the contract sought to be enforced specifically, should be averred and proved by the plaintiff in order to get a judgment in his favour. It thus is mandatory that the plaint shall contain the allegation that the plaintiff has performed or has been ready and willing to perform his part of the contract.

The fact that the plaintiff has performed, or has been willing to perform his part of the contract, has not specifically been averred in the plaint and therefore the plaintiff with a view to strengthen the pleading, it is submitted, filed the petition for amendment of the plaint. His attempt in other words, was to have the said fact specifically incorporated in the pleadings, the counsel submits. Addition of this fact in my view, would not bring about a new cause of action. If that be the position, the argument of the learned counsel that very valuable right accrued to the second defendant on account of insufficient pleadings, would be taken away, if the amendment is allowed, is not sustainable, though the decision of the Allahabad High Court in Mahmood Khan and Another Vs. Ayub Khan and Others, apparently supports his argument. According to the Allahabad High Court the plaintiff in a suit for specific performance shall not be allowed to amend the plaint and incorporate in the plaint the averment that the plaintiff has been willing to perform his part of the contract because such an amendment would help the plaintiff to bring out a cause of action in the plaint, which was conspicuous by its absence in the plaint originally filed. With respect, I cannot agree with this view. It should in this connection be noted that the requirement prescribed by Section16(1)(c) of the Specific Relief Act can be highlighted only by pleading various essential facts including the above fact. The very fact that the suit is for specific performance is more than sufficient to presume that the plaintiff has pleaded some of the essential facts bringing out the cause of action and if that be so, the application seeking amendment of the plaint, incorporating another essential fact, cannot be said to be an attempt to bring out a cause of action which was conspicuous by its absence in the plaint originally filed. That is why the Supreme Court declared that "readiness and willingness cannot be treated as a straight-jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention of the party concerned." (See R.C. Chandiok and Another Vs. Chuni Lal Sabharwal and Others, . In such circumstances, it cannot be said that the defendant has acquired any right. An amendment of the plaint in a suit for specific performance can, to my mind, be granted taking into account the entirety of the facts and the circumstances relevant to the intention of the party concerned. A reference to the following observation of the Supreme Court in Ganesh Trading Co. Vs. Moji Ram, is also profitable (Para 2) :--

"Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take."

(See also the decisions in Parvathy v. Ipe (1988) 1 KLT 228 ; Rama Nand Chaudhary Vs. Bhonri and Others, ; Dhian Singh Vs. Tara Chand and Another, ; Anwarul Haq (deceased by L. Rs.) Vs. Nizam Uddin (deceased by L. Rs.) and Another, ; Byomkesh Banerjee Vs. Nani Gopal Banik, ). The Court below therefore has rightly allowed the amendment.

The C.R.P. fails. Accordingly the same is dismissed.

The second defendant if so advised can file an additional written statement in respect of the matters made mention of in the petition for amendment of the plaint.