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Judgment
This is an application for review of the order dated December 12, 2016 passed by this Court
in C.O. 3640 of 2016. By the said order, this Court allowed the revisional application filed by the
defendant no. 2 in the suit and set aside the order dated July 28, 2016 passed by the learned Civil
Judge (Senior Division), 1st Court at Barasat, North 24 Parganas in Title Suit No. 852 of 2011
thereby, allowing the application filed by the present applicant, the plaintiff in the suit to amend his
plaint.
In the year 2011, the present applicant filed the aforementioned suit, before the learned
Civil Judge (Senior Division), 1st Court at Barasat, District- North 24-Parganas, against one Maya
Dhara, since deceased (the defendant no. 1) and the revisional petitioner (the defendant no. 2)
claiming, inter alia, a decree for declaration that the agreement for sale between himself and the
defendant no. 1, since deceased in respect of the suit property described in schedule "A" to the
plaint is valid and binding and that the subsequent deed of sale executed by the defendant no. 1,
since deceased in favour of the defendant no. 2 in respect of the suit property is invalid, inoperative,
void and liable to be set aside. In the suit, the present applicant also claimed a decree for specific
performance of the agreement entered into by and between himself and the defendant no. 1, since
deceased in respect of the suit property in his favour and in prayer (i) of the plaint he claimed a
decree for costs. Subsequently, in the year 2013 the present applicant filed an application before the
learned Court below praying for, amendment of his plaint filed in the suit to incorporate paragraph
10A in the plaint, as also to incorporate the words "including loss of Rs. 30 lakhs only", after the
word "cost" in prayer (i) of the plaint. By the order dated July 28, 2016 the learned Court below
allowed the said amendment application filed by the present applicant. The defendant no. 2
challenged the said order dated July 28, 2016 passed by the learned Court below by filing the
revisional application, being C.O. 3640 of 2016 before this Court. By an order dated November 23,
2016 this Court admitted the revisional application and stayed the operation of the order dated July
28, 2016. On December 12, 2016 when the revisional application was taken up for hearing none
appeared to represent the revisional petitioner. However, the learned advocate appearing for the
present applicant, the plaintiff submitted that the applicant had prayed for amendment of his plaint
to incorporate the claim for damages that he has suffered for the breach of the agreement for sale by
the defendant no. 1, since deceased and, as such, the learned Court below was absolutely correct to pass the order allowing the amendment of the plaint. However, this Court held that the cause of
action for the relief for damage sought to be incorporated in the prayer portion of the plaint arose in
the year 2010 but the amendment application was filed in the year 2016, when the said claim for
damages was barred by limitation. By the order dated December 12, 2016 this Court set aside the
order dated July 28, 2016 passed by the learned Court below allowing amendment application filed
by the applicant and allowed the revisional application. As mentioned earlier, it is the said order
dated December 12, 2016 which is sought to be reviewed by the applicant in this application.
During the pendency of this review application, the defendant no. 1 Maya Dhara died and her heirs
and legal representatives have been brought on record of this application as the proforma opposite
party nos. 2 (a) to 2 (c).
Mr. Anubhav Sinha, learned advocate appearing in support of the review application drew
the attention of this Court to paragraph 5 of the amendment application, as well as in paragraph 10
sought to be incorporated in the plaint where it is stated by the applicant plaintiff that since the
defendant no. 1 committed breach of the agreement for sale he is still continuing to reside at a
rented accommodation and he is still suffering damage. Therefore, according to him, the plaintiff
applicant''s claim for Rs. 30 lakhs on account of loss sought to be incorporated in prayer (i) of the
plaint filed in the suit was not barred by limitation. It was further submitted that as per the
provisions contained in Section 21 of the Specific Relief Act, 1963 (in short "the Act of 1963"),
particularly the proviso to sub-Section (5) thereof, the plaintiff in a suit for specific performance
can, at any stage of the suit amend his plaint to claim compensation for the breach of contract
committed by the defendant. Mr. Sinha strenuously contended that in view of the proviso to sub-
Section (5) of Section 21 of the Act of 1963, the plaintiff in a suit for specific performance suit is
entitled to amend his plaint to claim compensation on account of the breach of contract by the defendant, at any stage of the suit before the trial Judge or even before the appellate Court and the
provisions of the Limitation Act do not apply to such claim of the plaintiff. In support of his
contention, the learned counsel relied on the decision of the Division Bench of this Court in the
case of Balaji Apartment (P) Ltd. vs. Flora Properties (P) Ltd. reported in 1998(2) Cal LJ 265 and
the Division Bench decision of the Bombay High Court in the case of Kahini Developers (P) Ltd.
vs. Mukesh Morarji Panchamatia & Ors . reported in 2013(3) Mh. L. J. On the strength of the said
decisions of the Division Bench of this Court and the Division Bench of the Bombay High Court it
was argued for the applicant that the said order dated December 12, 2016 passed by this Court
holding that the relief sought to be incorporated by the applicant plaintiff was barred by limitation
is vitiated by an error of law which is apparent on the face of the record and, as such, the said order
should be reviewed by this Court under Order 47 Rule 1 of the Code.
On the other hand, Mr. Udayan Dutta, learned advocate representing the defendant no. 2
revisional petitioner submitted that by filing the present review application, the applicant plaintiff is
seeking to reargue the revisional application on merit and submitted that it is settled law that the
provision of review under Order 47 Rule 1 of the Code, the Court cannot be invoked by any party
for rehearing of the dispute. In this regard, reliance was placed on behalf of the defendant no. 2
revisional petitioner on the decision of the Supreme Court in the case of Haridas Das vs. Usha Rani
Banik reported in (2006) 4 SCC 78.
I have considered the materials on record, as well as the arguments advanced by the learned
counsel appearing for the respective parties. A perusal of Order 47 Rule 1 of the Code shows that
review of a judgment or an order could be sought: (a) from the discovery of new and important
matters or evidence which after the exercise of due diligence was not within the knowledge of the
applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent
on the face of the record or any other sufficient reason.
It is well settled law that under Order 47 Rule 1 a judgment may be open to review, inter
alia, if there is a mistake or an error apparent on the face of the record. In the present case it is
argued by the applicant plaintiff that by the proposed amendment of the plaint, which was allowed
by the learned Court below, he sought to incorporate a claim for compensation/damages for breach
of contract committed by the defendant no. 1 under sub-Section (5) of Section 21 of the Act of
1963. However, on December 12, 2016 when the learned advocate for the applicant plaintiff argued
the revisional application he did not bring any of the aforementioned decisions to the notice of this
Court. The Division Bench decision of this Court in the case of Balaji Apartment (P) Ltd. (supra)
where it was held that the right of a plaintiff in a suit for specific performance to amend his plaint at
any stage of the proceeding to incorporate a claim for compensation flows from the proviso to sub-
Section (5) of Section 21 of the Act of 1963 and the Limitation Act does not have any applicability
in respect of such claim is binding upon this Court. Even the Division Bench decision of the
Bombay High Court in the case of Kahini Developers (P) Ltd. (supra) holding that the Limitation
Act does not apply to the right of a plaintiff in a suit for specific performance to incorporate a claim
for compensation under the proviso to sub-section (5) of the Act of 1963 also has a persuasive
value. However, none of the said decisions were brought to the notice of this Court by the learned
advocate who represented the applicant plaintiff in the revision petition, while the revisional
application was decided on December 12, 2016.
The revisional petitioner, however, did not dispute the contention that in view of the
decision of the Division Bench of this Court in the case of Balaji Apartment (P) Ltd. the application
of the applicant plaintiff for amendment of his plaint could not be rejected nor could the order passed by the learned Court below allowing the amendment application could be interfered with by
this Court.
It is settled law that when a clear legal position established by a binding authority is
overlooked by the Court it becomes "an error apparent on the face of the record." This view gets
support from the Single Bench decision of this Court in the case of Tinkari Sen & ors. - vs - Dulal
Chandra Das reported in AIR 1967 Cal 518. In any event, at the time of passing the order dated
December 12, 2016 this Court also overlooked the statements in paragraph 10A sought to be
incorporated in the plaint by way amendment that the applicant plaintiff is still suffering the
damage/loss caused due to the alleged breach of the agreement for sale by the defendant no.1.
For the reasons aforesaid, this review application is allowed.
Since, the learned Counsel for the respective parties have already argued on the merit of the
amendment application of the applicant plaintiff, there is no point for fixing another hearing for
considering the review application on merit.
In view of the facts of the case, already discussed above the order dated December 12, 2016
passed in C.O. 3640 of 2016 passed by this Court is recalled and the revisional application, being
C.O. 3640 of 2016 stands rejected.
It is, however, made clear that although the applicant plaintiff''s application for amendment
of his plaint by incorporating paragraphs 10A and to incorporate the words "including loss of Rs.
30 lakhs" only after the word "cost" in prayer (i) has been allowed but, whether the applicant
plaintiff is in fact entitled to such relief shall be decided by the learned Court below at the trial of
the suit, without being influence by any finding in this decision.
With the above directions the review application, being R.V.W. 391 of 2016 stands
disposed of.
In view of the above order allowing the review application, the application CAN 12476 of
2016 has become infructuous and the same stands disposed of without any order.
There shall be no order as to costs.
Urgent certified copy of this judgement, if applied for, be supplied to the parties subject to compliance with all requisite formalities.