Ramchandra Sastri and Others vs Manohar Lal Gupta

Ashwini Kumar Sinha. J.

This application has been filed by the defendants against the order dated 9-4-1981, by which the court below allowed the plaint. The plaintiff-opposite party filed a title suit (No, 70 of 1977) for a decree of specific performance of contract and in the alternatively for a money decree to the tune of Rs. 8,160/- as per the account shown in the plaint.

The case was that the defendant No. 1 was in need of money for the marriage of his daughter and also his son and hence he entered into contract with the plaintiff to sell the property in question for a sum of Rs. 8,500/- and, in pursuance of the contract, on 23-5-1974, the plaintiff advanced a sum of Rs. 6,000/- to defendant No. 1 out of the aforesaid consideration money. The plaintiff''s further case was that defendant No. 1 did not execute the sale deed on repeated demands, which necessitated the filing of the suit. The defendants-petitioners contested the suit and denied all the allegations made in the plaint.

Thereafter, the suit was placed for hearing. The plaintiff examined all his witnesses including himself and closed his case. Thereafter, the defendants started leading their evidence. At that stage, on 4-4-1981 the plaintiff filed an application for amendment of the plaint and prayed that a new paragraph, as paragraph, No. 13(A), be added after paragraph 13.

The paragraph (13A) sought to be added by the plaintiff in the plaint was as follows:

13A. That from the facts stated above, it is made clear that the plaintiff was always ready and willing to perform his part of the contract and is still ready and willing to perform hit. part of the contract even today. Whereas, the defendant never showed his willingness and readiness to accept the balance consideration money and to execute the sale-deed in respect of the suit property in favour of the plaintiff.

The defendants-petitioners filed a rejoinder and specifically asserted that, as the proposed amendment takes away a valuable right which had already'' accrued to the defendants, the amendment could not be allowed in law. The petitioners further asserted that, as the amendment sought to avoid a barred claim, the same could not be allowed in law.

Before I refer to the submissions, advanced by the learned Counsel for the petitioners, it is most pertinent to quote two other relevant paragraphs 13 and 14 of the plaint:

That the plaintiff requested the defendant No. 1 to executive and register the sale deed after taking the remaining consideration money of Rs. 2.500/- with respect to the house described below in schedule of the plaint in his favour as per terms of the agreement for sale made between him and defendant No. 1 but defendant No. J avoided on one pretext or the other.

That the plaintiff at last sent a registered lawyers notice dated 23-4-77 through Sayed Md. Wasi, advocate, on the defendant No. 1 requesting him to execute and register the sale deed in favour of The plaintiff as per agreement of the sale after taking the remaining consideration money of Rs. 2500/-. The said notice was served upon the defendant No. 1 on 27-4-77 but the defendant No. 1 kept himself quite mum, hence this suit.

As already stated above, the application for amendment of the plaint was filed on 4-4-1981. It is essential to state here that the suit was filed in 1977 and the contract was dated 23-5-74. Thus, the suit when filed was well within time The amendment petition having been filed on 4-4-81, obviously the claim was barred by limitation.

8 The learned Counsel for the defendants petitioners, on the admitted facts of the instant case, has submitted that such an amendment which revives a barred claim is not permissible in law and the court, by passing the impugned order, has not only exercised its jurisdiction illegally but has also acted with material irregularity.

In order to elucidate the submission, just referred to above, the learned Counsel for the petitioners submitted that the plaintiff, in plaint, had nowhere stated that he was ready and willing to perform his part of contract; and, in that view of the matter, as per settled law, in view of series of decisions of this Court and the Supreme Court, suit for specific performance of contract was bound to fail.

The learned Counsel for the petitioners submitted that after the plaintiff had examined all his witnesses including himself and had closed his case at that stage the plaintiff realised that the suit was bound to fad in the absence of such an averment in the plaint and it was only to obviate such legal difficulty that the plaintiff filed an application on 4-4-81 for amendment of the plaint just to incorporate his readiness and willingness to perform his party of contract. By this time, the claim was barred by limitation.

It is well settled that in the absence of averment that the plaintiff is ready and willing to perform his part of contract, the suit for specific performance of contract has to fail. The learned Counsel for the petitioners, as already stated above, submitted that the amendment allowed by the court below has deprived the defendants-petitioners of a valuable right, as the suit was liable to fail without such an amendment and this amendment allowed to create a right that was barred by limitation and hence the court exercised its jurisdiction illegally and also with material irregularity.

On the other hand, the learned Counsel for the plaintiff-opposite party submitted that though the requirement in law, i.e., readiness and willingness on the part of the plaintiff to perform his part of the plaintiff to perform his part of contract was not there in the plaint in so many words; yet mere reading of paragraphs 13 and 14 of the plaint (quoted above) showed that it was already there impliedly. The learned Counsel for the plaintiff-opposite party submitted that, in fact, by the amendment sought and allowed, no new case was added and the amendment was purely technical in nature.

It is well settled that if the amendment amounts to depriving the party of any right which has accrued in his favour due to lapse of time and if the plaintiff, by an amendment of plaint, introduces entirely new or inconsistent cause of action amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there; the court will refuse amendment. It is also well settled that mere failure to set out even an essential fact docs not by itself constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in the suit and it must be antecedent to the institution of the suit. It is also well settled that an attempt to supply the omission could, sometimes, be viewed as equivalent to an introduction of a new cause of action.

A defective pleading is one thing and omission of the legal requirement is a different thing. Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent.

Keeping in view the aforesaid well settled principles of law, it has to be seen whether, in the instant case, the amendment sought for introduced a new cause of action which deprived the defendants-petitioners of the valuable right accrued to them. The learned Counsel for the plaintiff-opposite party, in his submission, highlighted the words "after taking the remaining consideration money of Rs. 2500/-". appearing in paragraphs 13 and 14 of the plaint (already quoted above), I am afraid, this was not enough in the eye of law for the plaintiff in a suit for specific performance of contract. Though, it will bear repetition, in the absence of the essential fact in a suit for specific performance of contract, the suit was bound to fail and the plaintiff realised it after the plaintiff had examined all his witnesses including himself and on the facts of the present case, I hold that it was not a case of inadvertent omission to mention the essential fact. On the day when the amendment was sought for, the plaintiff tried to introduce a new time barred cause of action. I hold that what was required in law to be stated in the plaint in a suit for specific performance of contract was not impliedly there in paragraphs 13 and 14 of the plaint (quoted above), as contended by the learned Counsel for the plaintiff-opposite party. The learned Counsel for the plaintiff-opposite party, in support of his submission that nothing new was being introduced by the proposed amendment and that the requirement of law was already impliedly there in paragraphs 13 and 14 of the plaint, relied upon a case of Ram Avtar Sharma v. Jagdish Ram and Ors. 1984 B.R.L.J. 484. I am afraid, the facts of that case are clearly distinguishable and hence the ratio decided in that case cannot be relied upon by the learned Counsel for the plaintiff-opposite party. In that case the following averment we already there:

That the plaintiffs are willing to perform their own part of the contract since the very beginning but the defendants being in collusion with Jadunandan Ram and some other person hostile to the plaintiffs are bent upon flouting the contract as a result of which the plaintiffs apprehended a serious injury to their rights.

By amendment petition the plaintiffs prayed to add the following sentences at the end of the existing paragraph 16 and the amendment sought for was as follows:

That the plaintiff has been and is still ready and willing and will remain in future to give the balance consideration money and to get the sale-deed executed and registered in respect of the suit lands from the defendant and is always coming ready with amount tendering it to the defendants.

In that view of the matter, this Court, in the case of Ram Avtar Sharma v. Jagdish Ram (supra), held that:

It has already been averred in the plaint that the plaintiffs are ready and willing to perform their own part of the contract since the very beginning and at the end of paragraph No. 16, the plaintiffs wanted to add the proposed amendment. In cannot he said that there was no averment of cause of action in the plaint and it is a case of complete absence of pleading cause of action.

Thus, the facts were clearly distinguishable and, in my opinion, the case relied upon by the learned Counsel for the plaintiff-opposite party does not support his contention. On the facts of the present case, as already stated above, it is apparent that there was no pleading of a cause of action in the original plaint and by amendment it was intended to insert a cause of action which was not pleaded at all. If the cause of action sought to be brought out was not ab initio completely absent, the amendment could be allowed but, in the present case, on the facts of the case, I hold that the amendment amounted to an introduction of a new time barred cause of action which could not be allowed by the court, as it deprived the petitioners of the valuable right accrued to them.

In the result, this application is allowed The impugned order dated 9-4-1981 is set aside. However, there will be no order as to costs.