LIFE INSURANCE CORPORATION OF INDIA versus SANJEEV BUILDERS PRIVATE LIMITED & ANR.

[2022] 8 S.C.R. 1121

LIFE INSURANCE CORPORATION OF INDIA

SANJEEV BUILDERS PRIVATE LIMITED & ANR.

(Civil Appeal No. 5909 of 2022)

SEPTEMBER 1, 2022

[ANIRUDDHA BOSE AND J. B. PARDIWALA, JJ.]

Code of Civil Procedure, 1908 – Or. II r. 2 and Or. VI r. 17 –Applicability of Or. II r. 2 to an amendment application – Held:Or.II r.2 operates as bar against subsequent suit if the requisiteconditions for application thereof are satisfied and the field ofamendment of pleadings falls far beyond its purview – The bar ofOr. II r.2 applies only to the subsequent suits – Or. II r.2 cannotapply to an amendment which is sought on an existing suit.

Specific Relief Act, 1963 – Suit for Specific Performance –Code of Civil Procedure, 1908 – Or. II r.2, Or. VI r.17 – Applicabilityof – Respondents instituted suit seeking specific performance ofthe agreement and in the alternative, prayed for damages – HighCourt permitted the Respondents to amend the plaint, seeking toenhance the amount towards the alternative claim for damages –Correctness of – Held: There is no merit in the contention raised onbehalf of the appellant that the amendment application is liable tobe rejected by applying the bar u/Or.II r.2 CPC – Or.II r.2 of CPCcannot apply to an amendment which is sought on an existing suit –Further, the amendment application is also not hit by the principleof constructive res judicata – The said principle has no applicationin the instant case, since there was no formal adjudication betweenthe parties after full hearing – Litigation before this Court has comeup at the stage when the courts below allowed the amendment ofplaint for the purpose of enhancing the amount towards damagesin the alternative to the main relief of specific performance of thecontract – Also, it cannot be successfully urged that suit for specificperformance falling under the provisions of the 1963 Act wouldnot be governed by the provisions of the CPC – It is, therefore,clear that to such suit the provisions contained in Or.VI, r.17 ofthe CPC would apply and plaintiff who has earlier failed toincorporate the reliefs for compensation or who has incorporated

DEF

Athe reliefs for compensation but seeks amendment in the same, couldseek the permission of the court to introduce these reliefs by way ofamendment – Impugned order passed by the Division Bench of theHigh Court, affirming the order passed by the Single Judge allowingthe amendment application not disturbed – Doctrine of constructiveres judicata.B

Code of Civil Procedure, 1908 – Or. VI r. 17 – Amendment ofpleadings – Held: All amendments are to be allowed which arenecessary for determining the real question in controversy providedit does not cause injustice or prejudice to the other side – This ismandatory, as is apparent from the use of the word “shall”, in theClatter part of Or.VI r.17 – In dealing with prayer for amendmentof pleadings, the court should avoid hypertechnical approach,and is ordinarily required to be liberal especially where the oppositeparty can be compensated by costs – Where the amendment wouldenable the court to pin-pointedly consider the dispute and wouldDaid in rendering more satisfactory decision, the prayer foramendment should be allowed – Where the amendment merely soughtto introduce an additional or new approach without introducinga time barred cause of action, the amendment is liable to be allowedeven after expiry of limitation – Delay in applying for amendmentalone is not ground to disallow the prayer – Where the aspect ofEdelay is arguable, the prayer for amendment could be allowed andthe issue of limitation framed separately for decision.

Code of Civil Procedure, 1908 – Or. VI r. 17 – Amendment ofpleadings – When to be allowed and not to be allowed – Discussed.

FSpecific Relief Act, 1963 – Proviso to s.21(5) and s.22(2) –Code of Civil Procedure, 1908 – Or. VI r. 17 – Held: The two provisosdeal with the question of permitting the plaintiff to amend his plaint– It is not, as if, in the absence of these two provisos, it is notpermissible in law for the plaintiff to carry out an amendment in hispleading by introducing relief for enhanced compensation – r.17Gof Order VI does confer power on Court to allow party to alteror amend his pleading in such manner and on such terms as may bejust and allows all such amendments to be made as may be necessaryfor the purpose of determining the real question in controversybetween the parties.H

LIFE INSURANCE CORPORATION OF INDIA v. SANJEEVBUILDERS PRIVATE LIMITED & ANR.

Specific Relief Act, 1963 – s.21 – Scope and ambit of –Discussed – Specific Relief Amendment Act, 2018.

Words & Phrases:

“shall”, in the latter part of Or.VI r.17 – Code of CivilProcedure, 1908 – Or.VI r.17.

“omits to sue” and “intentionally relinquish any portion ofhis claim” – Discussed – Code of Civil Procedure, 1908 – Or.II r.2.

Dismissing the appeal, the Court

HELD: 1.1 It is well settled that the court must be extremelyliberal in granting the prayer for amendment, if the court is of theview that if such amendment is not allowed, party, who hasprayed for such an amendment, shall suffer irreparable loss andinjury. It is also equally well settled that there is no absolute rulethat in every case where relief is barred because of limitation,amendment should not be allowed. It is always open to the courtto allow an amendment if it is of the view that allowing of anamendment shall really sub-serve the ultimate cause of justiceand avoid further litigation. The power to allow an amendment isundoubtedly wide and may be appropriately exercised at any stagein the interests of justice, notwithstanding the law of limitation.The principles applicable to the amendments of the plaint areequally applicable to the amendments of the written statements.The courts are more generous in allowing the amendment of thewritten statement as question of prejudice is less likely to operatein that event. The defendant has right to take alternative pleain defense which, however, is subject to an exception that by theproposed amendment other side should not be subjected toinjustice and that any admission made in favor of the plaintiff isnot withdrawn. All amendments of the pleadings should be allowedwhich are necessary for determination of the real controversiesin the suit provided the proposed amendment does not alter orsubstitute new cause of action on the basis of which the originallis was raised or defense taken. Inconsistent and contradictoryallegations in negation to the admitted position of facts or mutuallydestructive allegations of facts should not be allowed to beincorporated by means of amendment to the pleadings. Theproposed amendment should not cause such prejudice to the other

Aside which cannot be compensated by costs. No amendmentshould be allowed which amounts to or relates in defeating legalright accruing to the opposite party on account of lapse of time.The delay in filing the application for amendment of the pleadingsshould be properly compensated by costs and error or mistakewhich, if not fraudulent, should not be made ground for rejectingBthe application for amendment of plaint or written statement. Butundoubtedly, every case and every application for amendmenthas to be tested in the applicable facts and circumstances of thecase. As the proposed amendment of the pleadings amounts toonly different or an additional approach to the same facts, thisCCourt has repeatedly laid down the principle that such anamendment would be allowed even after the expiry of statutoryperiod of limitation. [Paras 19, 23, 25 & 26][1135-C-D; 1137-D;1138-B-G]L.J. Leach & Co. Ltd. &Anr. v. Jardine Skinner & Co.DAIR 1957 SC 357 : [1957] SCR 438; T.N. Alloy FoundryCo. Ltd. v. T.N. Electricity Board & Ors. (2004) 3 SCC392 : [2004] 2 SCR 352; Pirgonda Hongonda Patil v.Kalgonda Shidgonda Patil 2 Ors. [1957] SCR 595 :AIR 1957 SC 363; Ganga Bai v. Vijay Kumar & Ors.(1974) 2 SCC 393 : [1974] 3 SCR 882; M/s GaneshETrading Co. v. Moji Ram (1978) 2 SCC 91 : [1978] 2SCR 614; South Konkan Distilleries & Anr. v.Prabhakar Gajanan Naik & Ors. (2008) 14 SCC 632 :[2008] 13 SCR 295; A.K. Gupta Sons Ltd. v. DamodarValley Corporation AIR 1967 SC 96 : [1966] 1 SCRF796; Pankaja & Anr. v. Yellappa (dead) by LRs. & Ors.(2004) 6 SCC 415 – relied on.

1.2 One of the cardinal principles of law in allowing orrejecting an application for amendment of the pleading is that thecourts generally, as rule, decline to allow amendments, if freshGsuit on the amended claim would be barred by limitation on thedate of filing of the application. But that would be factor to betaken into account in the exercise of the discretion as to whetherthe amendment should be ordered, and does not affect the powerof the court to order it, if that is required in the interest of justice.[Para 30][1141-D-E]H

2. The judgment and order passed by the coordinate Benchof this Court in the Life Insurance Corporation of India (betweenthe same parties) has no application so far as the present appealis concerned. The appellant herein cannot succeed in the presentappeal merely on the strength of the judgment and order passedby this Court in the Life Insurance Corporation of India. [Para42][1148-D]

Life Insurance Corporation of India v. Sanjeev BuildersPvt. Ltd. & Ors. (2018) 11 SCC 722 : [2017] 10 SCR208 – held inapplicable.

3.1 The expressions “omits to sue” and “intentionallyrelinquish any portion of his claim” give an indication as to theintention of the legislature in framing the said rule. The term‘sue’ can mean both the filing of the suit and prosecuting the suitto its culmination, depending on the context of the provision. Inthe present case, the legislature thought it fit to debar plaintifffrom suing afterwards for any relief which he/she has omittedwithout the leave of the court or from suing in respect of anyportion of his claim which he intentionally relinquishes. Order IIRule 2(1) provides that every suit shall include the whole of theclaim which the plaintiff is entitled to make in respect of the causeof action. [Para 45][1149-D-E]

3.2 The bar of Order II Rule 2 of the CPC applies only tothe subsequent suits. If the two suits and the relief claimed thereinare based on the same cause of action then the subsequent suitwill become barred under Order II Rule 2 of the CPC. However,there is no merit in the contention raised on behalf of the appellantherein that the amendment application is liable to be rejected byapplying the bar under Order II Rule 2 of the CPC. Order IIRule 2 of the CPC cannot apply to an amendment which is soughton an existing suit. Also not impressed by the contention raisedon behalf of the appellant herein that the amendment applicationis hit by the principle of constructive res judicata. The principleof constructive res judicata has no application in the instant case,since there was no formal adjudication between the parties afterfull hearing. The litigation before this Court has come up at thestage when the courts below allowed the amendment of plaint for

Athe purpose of enhancing the amount towards damages in thealternative to the main relief of specific performance of thecontract. [Paras 49, 50 & 52][1152-D-E; 1153-G-H; 1154-A]

Gurbux Singh v. Bhooralal AIR 1964 SC 1810 : [ 1964]7 SCR 831 – followed.

BVaish Cooperative Adarsh Bank Ltd. v. GeetanjaliDespande & Ors. (2003) 102 DLT 570 – approved.

4.1 The Act 1963 contemplates that in addition to or insubstitution of claim for performance, plaintiff is entitled toclaim compensation. Under sub-section (2) of Section 21, theCcourt is empowered to award compensation for breach where itholds that there is contract between the parties which wasbroken by the defendant but in the event, it decides that specificperformance ought not to be granted. Sub-section (3) of Section21 empowers the court to grant compensation for breach inDaddition to decree for specific performance where it is of theview that specific performance alone would not satisfy the justiceof the case. Sub-section (5), however, stipulates thatcompensation cannot be awarded under the section unless thePlaintiff has claimed such compensation in the plaint. Thisprovision is mandatory. The proviso to sub-section (5) of SectionE21 dilutes the rigours of the main provision by allowing the plaintiffwho has not claimed such compensation in the plaint to amendthe plaint at any stage of the proceedings and the court, it hasbeen provided, shall at any stage of the proceedings allow anamendment for including claim for such compensation on suchFterms as may be just. Section 22 has non-obstante provisionwhich overrides the CPC. plaintiff who claims specificperformance of contract for the transfer of immovable property,may in an appropriate case ask for possession, partition andseparate possession of the property, in addition to specificperformance. The plaintiff may also claim any other relief includingGthe refund of earnest money or deposit paid, in case the claim forspecific performance is refused. Corresponding to the provisionsof sub-section (5) of Section 21, sub-section (2) of Section 22stipulates that such relief cannot be granted by the court unlessit has been specifically claimed. However, the proviso requiresH

that the court shall at any stage of the proceedings allow theplaintiff to amend the plaint to claim such relief where it has notbeen originally claimed on such terms which may appear just.[Paras 54, 55, 56 & 58][1154-B; 1155-B-E; 1156-D-E]

Shamsu Suhara Beevi v. G. Alex & Anr. (2004) 8 SCC569 : [2004] 3 Suppl. SCR 653 – referred to.

4.2 The plaintiffs in the original plaint claimed forcompensation in addition to decree for specific performance ofthe agreement to sell. Therefore, strictly speaking the provisionsof Section 21 of the Act 1963 are not attracted to the facts of thepresent case. The intention of the plaintiffs in seeking foramendment of the plaint appears to be to get an enhanced amountof compensation than what was originally claimed in the originalplaint which was restricted only to Rs. 1,01,00,000/-. The aforesaidintention becomes apparent when the averments made in theapplication praying for amendment are looked into inasmuch as,the plaintiffs have stated that in view of the fact that in last 30years there had been tremendous escalation of the value of thesuit property which has an adverse effect on the quantum ofdamages, compensation, relief sought for the breach of contractby the appellant/defendant. According to the plaintiffs the raisingof the amount of compensation to Rs. 400,01,00,000/- from Rs.1,01,00,000/- as claimed in the original plaint has beennecessitated in view of undue delay in the prosecution of the suitwhich was not earlier foreseen, which in turn has caused moredamage to the plaintiffs through the years and therefore, theyhave sought to raise the amount of compensation to the presentvalue as stated above from Rs. 1,01,00,000/-. The two provisosreferred to, deal with the question of permitting the plaintiff toamend his plaint. It is not, as if, in the absence of these twoprovisos, it is not permissible in law for the plaintiff to carry outan amendment in his pleading by introducing relief for enhancedcompensation. Rule 17 of Order VI of the CPC does confer poweron Court to allow party to alter or amend his pleading in suchmanner and on such terms as may be just. This rule does notstop at that, but it further says that all such amendments shouldbe made as may be necessary for the purpose of determining the

Areal question in controversy between the parties. This provisionwhich empowers the court in its discretion to permit party toamend his pleadings, was already on the statute book, when theSpecific Relief Act, 1963 was enacted. It can, therefore, bepresumed that when the latter legislation was on the anvil, theParliament was aware of this power of the court to permitBamendment of pleadings. Therefore, it cannot be successfullyurged that suit for specific performance falling under theprovisions of the Act, 1963 would not be governed by theprovisions of the CPC. It is, therefore, clear that to such suitthe provisions contained in Order VI Rule 17 of the CPC wouldCapply and plaintiff who has earlier failed to incorporate the reliefsfor compensation or who has incorporated the reliefs forcompensation but seeks amendment in the same, could seek thepermission of the court to introduce these reliefs by way ofamendment. [Paras 64 & 66][1160-F-H; 1161-A-B, E-H; 1162-DA]

4.3 Final conclusions:

(i) Order II Rule 2 CPC operates as bar against asubsequent suit if the requisite conditions for application thereofare satisfied and the field of amendment of pleadings falls farEbeyond its purview. The plea of amendment being barred underOrder II Rule 2 CPC is, thus, misconceived and hence negatived.

(ii) All amendments are to be allowed which are necessaryfor determining the real question in controversy provided it doesnot cause injustice or prejudice to the other side. This isFmandatory, as is apparent from the use of the word “shall”, in thelatter part of Order VI Rule 17 of the CPC.

(iii) The prayer for amendment is to be allowed

(i) if the amendment is required for effective andGproper adjudication of the controversy between the parties,and

(ii) to avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to theHother side,

LIFE INSURANCE CORPORATION OF INDIA v. SANJEEVBUILDERS PRIVATE LIMITED & ANR.

(b) by the amendment, the parties seeking amendmentdoes not seek to withdraw any clear admission made bythe party which confers right on the other side and

(c) the amendment does not raise time barred claim,resulting in divesting of the other side of valuable accruedright (in certain situations).

(iv) prayer for amendment is generally required to beallowed unless

(i) by the amendment, time barred claim is soughtto be introduced, in which case the fact that the claim wouldbe time barred becomes relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses validdefence.

(v) In dealing with prayer for amendment of pleadings,the court should avoid hypertechnical approach, and is ordinarilyrequired to be liberal especially where the opposite party can becompensated by costs.

(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering moresatisfactory decision, the prayer for amendment should beallowed.

(vii) Where the amendment merely sought to introduce anadditional or new approach without introducing time barredcause of action, the amendment is liable to be allowed even afterexpiry of limitation.

(viii) Amendment may be justifiably allowed where it isintended to rectify the absence of material particulars in the plaint.

(ix) Delay in applying for amendment alone is not groundto disallow the prayer. Where the aspect of delay is arguable, theprayer for amendment could be allowed and the issue of limitationframed separately for decision.

(x) Where the amendment changes the nature of the suitor the cause of action, so as to set up an entirely new case, foreign

Ato the case set up in the plaint, the amendment must bedisallowed. Where, however, the amendment sought is only withrespect to the relief in the plaint, and is predicated on facts whichare already pleaded in the plaint, ordinarily the amendment isrequired to be allowed.

B(xi) Where the amendment is sought before commencementof trial, the court is required to be liberal in its approach. Thecourt is required to bear in mind the fact that the opposite partywould have chance to meet the case set up in amendment. Assuch, where the amendment does not result in irreparableprejudice to the opposite party, or divest the opposite party of anCadvantage which it had secured as result of an admission by theparty seeking amendment, the amendment is required to beallowed. Equally, where the amendment is necessary for the courtto effectively adjudicate on the main issues in controversybetween the parties, the amendment should be allowed. [ParaD70][1162-G-H; 1163-A-H; 1164-A-H]

B.K. Narayana Pillai v. Parameswaran Pillai & Anr.(2000) 1 SCC 712 : [1999] 5 Suppl. SCR 271; JagdishSingh v. Natthu Singh (1992) 1 SCC 647 : [1991] 2Suppl. SCR 567– relied on.

Charan Das & Ors. v. Amir Khan & Ors. AIR 1921 PC50; Kisandas Rupchand & Anr. v. Rachappa VithobaShilwant and Ors. ILR (1909) 33 Bom 644; RaguThilak D. John v. S. Rayappan & Ors. (2001) 2 SCC472; Vishwambhar & Ors. v. Laxminarayan (Dead)through Lrs. & Anr. (2001) 6 SCC 163; Vineet Kumarv. Mangal Sain Wadhera (1984) 3 SCC 352 : [1984] 2SCR 333 : AIR 1985 SC 817; Sanjeev Builders Pvt.Ltd. & Ors. v. Life Insurance Corporation of India 2018SCC OnLine Bom 15283; Mohd. Khalil Khan & Ors.v. Mahbub Ali Mian & Ors. AIR 1949 PC 78; UpendraNarain Roy v. Rai Janoki Nath Roy AIR 1919 Cal 904;Kahini Developers Pvt. Ltd. v. MukeshMorarjipanchamatia & Ors. (2013) 3 Mah LJ 440;The Arya Pradeshak Pritinidhi Sabha, Sindh, Punjab& Bilochistan v. Lahori Mal & Ors. (1924) 6 Lah LJ

286 : AIR 1924 48 Lah 713; Somasundaram Chettiarv. Chidambaram Chettiar, AIR 1951 Mad 282; VijayGupta v. Gagninder Kr. Gandhi & Ors., 2022 SCCOnLine Del 1897 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5909of 2022.

From the Judgment and Order dated 13.12.2018 of the High Courtof Judicature at Bombay in Appeal [L] No.499 of 2018 in ChamberSummons No. 854 of 2017 in Suit No.894 of 1986.

D. N. Goburdhun, Sr. Adv., Aakarsh Kamra, Ms. Gauri Gobardhan,Advs. for the Appellant.

Sanjiv Sen, Sr. Adv., Mahesh Agarwal, Ankur Saigal, N.Janardhanan, Ms. Kajal Dalal, Abhinabh Garg, Ms. Deepshikha Mishra,

AE. C. Agrawala, Advs. for the Respondents.

The Judgment of the Court was delivered by

J. B. PARDIWALA, J.

1. Leave granted.B

2. This appeal is at the instance of defendant in suit filed bythe respondents herein (original plaintiffs) for the specific performanceof contract based on an agreement dated 08.06.1979 and is directedagainst the judgment and order passed by the High Court of Judicatureat Bombay dated 13.12.2018 in the Appeal [L] No. 499 of 2018, arisingCfrom the order passed by learned Single Judge on its ordinary originalcivil jurisdiction side in the Chamber Summons No. 854 of 2017 in theSuit No. 894 of 1986 dated 11.09.2018. The Chamber Summons wasallowed by the High Court at the instance of the plaintiffs, permitting theplaintiffs to amend the plaint. The order passed by the High Court in theChamber Summons came to be affirmed by Division Bench in theDAppeal [L] No. 499 of 2018. The High Court permitted the plaintiffs toamend the plaint, seeking to enhance the amount towards the alternativeclaim for damages.

FACTUAL MATRIX

3. It appears from the materials on record that the respondentsEherein are the original plaintiffs and the appellant herein is the originaldefendant in the Suit No. 894 of 1986, pending as on date in the HighCourt of Judicature at Bombay on its original side. The said suit hasbeen instituted seeking specific performance of the agreement dated08.06.1979. In the alternative, the plaintiffs have also prayed for damages.FThe plaintiffs moved the Chamber Summons No. 854 of 2017, interalia, seeking enhancement of the amount towards damages on thegrounds, more particularly, set out in the affidavit filed in support of thesaid chamber summons.

4. The learned Single Judge of the High Court allowed the chamberGsummons referred to above, vide the order dated 11.09.2018, keepingthe issue of limitation open and also permitting the defendant, appellantherein, to file additional written statement.

5. The appellant herein preferred an appeal against the said orderwhich came to be dismissed vide the impugned order dated 13.12.2018.

6. Being aggrieved and dissatisfied with the impugned order passedby the High Court referred to above, the appellant (original defendant) ishere before this Court with the present appeal.

SUBMISSIONS ON BEHALF OF THE APPELLANT

7. The learned senior counsel appearing for the appellant,vehemently, submitted that the High Court committed serious error inpassing the impugned order. He would submit that the High Courtoverlooked the order passed by this Court in the Life InsuranceCorporation of India v. Sanjeev Builders Pvt. Ltd. & Ors., (2018) 11SCC 722 between the same parties, arising from the same suitproceedings.

8. The learned counsel would submit that the High Court shouldnot have permitted the plaintiffs to amend the plaint after period ofthirty-one years, more particularly, when the earlier amendment seekingto implead the assignee as the plaintiff No. 3 in the suit was declined bythis Court vide the judgment and order dated 24.10.2017 passed in theLife Insurance Corporation of India (supra).

9. The learned counsel would submit that the High Court failed toconsider that the amendment was hit by the provisions of Order II Rule2 of the Civil Procedure Code, 1908 (for short, the ‘CPC’). He wouldsubmit that the amendment could be said to be even hit by the principleof constructive res judicata.

10. The learned counsel pointed out that at the time when the suitcame to be instituted, the damages to the tune of Rs. 1,01,00,000/- [Rs.One Crore & One Lakh only] in the alternative was prayed for. By wayof amendment the damages now prayed for is to the tune of Rs.4,00,01,00,000/- [Rs. Four Hundred Crore & One Lakh only].

11. In such circumstances referred to above, the learned counselappearing for the appellant (original defendant) prayed that there beingmerit in his appeal, the same may be allowed and the impugned orderpassed by the High Court may be set aside and the original amendmentapplication filed by the plaintiffs be rejected.

SUBMISSIONS ON BEHALF OF THE RESPONDENTS

12. The learned senior counsel appearing for the respondentsherein (original plaintiffs) on the other hand, submitted that no error, notto speak of any error of law, could be said to have been committed by

Athe High Court in passing the impugned order. It is submitted that thequestion of limitation has been kept open by the High Court that may beagitated by the defendant in the trial and the defendant has also beenpermitted to file its additional written statement.

13. The learned counsel would submit that the suit is yet to beBadjudicated; and in such circumstances, the delay in amending the plaintfor the purpose of enhancing the amount towards damages would notcause any serious prejudice to the defendant.

14. The learned counsel further submitted that the provisions ofOrder II Rule 2 of the CPC cannot be made applicable to an applicationCseeking amendment of plaint.

15. The learned counsel in the last submitted that the decision ofthis Court rendered in the case of Life Insurance Corporation of India(supra) between the same parties was altogether in different context.In the said appeal before this Court, the issue was whether the assigneecould have been impleaded as one of the plaintiffs in the suit after aDperiod of twenty-seven years from the date of institution of the suit?

16. In such circumstances referred to above, the learned counselappearing for the plaintiffs prays that there being no merit in this appeal,the same may be dismissed with costs.

ANALYSISE

17. Having heard the learned counsel appearing for the partiesand having gone through the materials on record, the following questionsof law fall for the consideration of this Court:

1.Whether the High Court committed any material irregularityFor jurisdictional error going to the root of the matter in passingthe impugned order?

2.Whether the provisions of Order II Rule 2 CPC can bemade applicable to an amendment application?

3.Whether the amendment of plaint for the purpose ofGenhancing the amount towards damages could be said tobe hit by the doctrine of constructive res judicata?

4.Whether the judgment and order passed by coordinateBench of this Court in the case of Life InsuranceCorporation of India (supra) between the same partiesHhas any bearing on the present appeal?

5.Whether the present appeal is covered by the proviso toSection 21(5) and Section 22(2) resply of the Specific ReliefAct, 1963 (47 of 1963) (for short, ‘the Act 1963’)?

18. Before adverting to the rival contentions canvassed on eitherside and before we deal with the orders passed by the High Courtpermitting the plaintiffs to amend the plaint with respect to the prayerclause, let us consider, the laws on the question of allowing or rejectinga prayer for amendment of the pleadings, more particularly, when theplea of limitation was taken by one of the parties.

19. It is well settled that the court must be extremely liberal ingranting the prayer for amendment, if the court is of the view that ifsuch amendment is not allowed, party, who has prayed for such anamendment, shall suffer irreparable loss and injury. It is also equally wellsettled that there is no absolute rule that in every case where relief isbarred because of limitation, amendment should not be allowed. It isalways open to the court to allow an amendment if it is of the view thatallowing of an amendment shall really sub-serve the ultimate cause ofjustice and avoid further litigation. In L.J. Leach & Co. Ltd. & Anr. v.Jardine Skinner & Co., AIR 1957 SC 357, this Court at paragraph 16of the said decision observed as follows:

“16. It is no doubt true that courts would, as rule, declineto allow amendments, if fresh suit on the amended claimwould be barred by limitation on the date of the application.But that is factor to be taken into account in exercise of thediscretion as to whether amendment should be ordered, anddoes not affect the power of the court to order it, if that isrequired in the interest of justice…..”

20. Again in T.N. Alloy Foundry Co. Ltd. v. T.N. ElectricityBoard & Ors., (2004) 3 SCC 392, this Court observed as follows:

“2. …..The law as regards permitting amendment to the plaint,is well settled. In L.J. Leach and Co. Ltd. v. Jardine Skinnerand Co. [AIR 1957 SC 357 : 1957 SCR 438] it was held thatthe Court would as rule decline to allow amendments, if afresh suit on the amended claim would be barred by limitationon the date of the application. But that is factor to be takeninto account in exercise of the discretion as to whetheramendment should be ordered, and does not affect the powerof the court to order it.

1136SUPREME COURT REPORTS

A3. It is not disputed that the appellate court has coextensivepower of the trial court. We find that the discretion exercisedby the High Court in rejecting the plaint was in conformitywith law.”

21. So far as the answer to the specific plea that the claim ofBdamages is barred by limitation and cannot be permitted at this stage isconcerned, it becomes necessary to examine the various judicialpronouncements of this Court. The principles governing an amendmentwhich may be permitted even after the expiry of the statutory period oflimitation were laid down by the Privy Council in its judgment in CharanDas & Ors. v. Amir Khan & Ors., AIR 1921 PC 50. In this case, theCPrivy Council laid down the principles thus:

“…..That there was full power to make the amendment cannotbe disputed, and though such power should not as rulebe exercised where its effect is to take away from defendanta legal right which has accrued to him by lapse of time, yetDthere are cases: see for example Mohummud Zahoor Ali v.Rutta Koer, where such considerations are outweighed by thespecial circumstances of the case, and their Lordships arenot prepared to differ from the Judicial Commissioner inthinking that the present case is one.”

E22. It would be useful to also notice the observations of this Courtin, Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil & 2 Ors.,1957 SCR 595 : AIR 1957 SC 363, wherein this Court considered anobjection to the amendment on the ground that the same amounted to anew case and new cause of action. In this case, this Court laid downFthe principles which would govern the exercise of discretion as to whetherthe court ought to permit an amendment of the pleadings or not. ThisCourt approved the observations of Batchelor, J., in the case of KisandasRupchand & Anr. v. Rachappa Vithoba Shilwant and Ors. reportedin ILR (1909) 33 Bom 644, when he laid down the principles thus:

G“10. …..”All amendments ought to be allowed which satisfythe two conditions (a) of not working injustice to the otherside, and (b) of being necessary for the purpose of determiningthe real questions in controversy between the parties … but Irefrain from citing further authorities, as, in my opinion, theyall lay down precisely the same doctrine. That doctrine, as IH

understand it, is that amendments should be refused onlywhere the other party cannot be placed in the same positionas if the pleading had been originally correct, but theamendment would cause him an injury which could not becompensated in costs. It is merely particular case of thisgeneral rule that where plaintiff seeks to amend by settingup fresh claim in respect of cause of action which sincethe institution of the suit had become barred by limitation, theamendment must be refused; to allow it would be to cause thedefendant an injury which could not be compensated in costsby depriving him of good defence to the claim. The ultimatetest therefore still remains the same : can the amendment beallowed without injustice to the other side, or can it not?”…..”

23. This Court has repeatedly held that the power to allow anamendment is undoubtedly wide and may be appropriately exercised atany stage in the interests of justice, notwithstanding the law of limitation.In this behalf, in Ganga Bai v. Vijay Kumar & Ors., (1974) 2 SCC 393,this Court held thus:

“22. …..The power to allow an amendment is undoubtedlywide and may at any stage be appropriately exercised in theinterest of justice, the law of limitation notwithstanding. Butthe exercise of such far-reaching discretionary powers isgoverned by judicial considerations and wider the discretion,greater ought to be the care and circumspection on the partof the Court…..”

24. Again in M/s Ganesh Trading Co. v. Moji Ram, (1978) 2SCC 91, this Court laid down the principles thus:

“4. It is clear from the foregoing summary of the main rulesof pleadings that provisions for the amendment of pleadings,subject to such terms as to costs and giving of all partiesconcerned necessary opportunities to meet exact situationsresulting from amendments, are intended for promoting theends of justice and not for defeating them. Even if party orits Counsel is inefficient in setting out its case initially theshortcoming can certainly be removed generally byappropriate steps taken by party which must no doubt paycosts for the inconvenience or expense caused to the other

1138SUPREME COURT REPORTS

Aside from its omissions. The error is not incapable of beingrectified so long as remedial steps do not unjustifiably injurerights accrued.”

25. The principles applicable to the amendments of the plaint areequally applicable to the amendments of the written statements. TheBcourts are more generous in allowing the amendment of the writtenstatement as question of prejudice is less likely to operate in that event.The defendant has right to take alternative plea in defense which,however, is subject to an exception that by the proposed amendmentother side should not be subjected to injustice and that any admissionmade in favor of the plaintiff is not withdrawn. All amendments of theCpleadings should be allowed which are necessary for determination ofthe real controversies in the suit provided the proposed amendment doesnot alter or substitute new cause of action on the basis of which theoriginal lis was raised or defense taken. Inconsistent and contradictoryallegations in negation to the admitted position of facts or mutuallyDdestructive allegations of facts should not be allowed to be incorporatedby means of amendment to the pleadings. The proposed amendmentshould not cause such prejudice to the other side which cannot becompensated by costs. No amendment should be allowed which amountsto or relates in defeating legal right accruing to the opposite party onaccount of lapse of time. The delay in filing the application for amendmentEof the pleadings should be properly compensated by costs and error ormistake which, if not fraudulent, should not be made ground for rejectingthe application for amendment of plaint or written statement. (See SouthKonkan Distilleries & Anr. v. Prabhakar Gajanan Naik & Ors.,(2008) 14 SCC 632)F

26. But undoubtedly, every case and every application foramendment has to be tested in the applicable facts and circumstancesof the case. As the proposed amendment of the pleadings amounts toonly different or an additional approach to the same facts, this Courthas repeatedly laid down the principle that such an amendment wouldGbe allowed even after the expiry of statutory period of limitation.

27. In this behalf, in A.K. Gupta & Sons Ltd. v. Damodar ValleyCorporation, AIR 1967 SC 96 : (1966) 1 SCR 796, this Court held thus:

“7. …..a new case or new cause of action particularly whena suit on the new case or cause of action is barred: Weldon v.H

Neale [19 QBD 394]. But it is also well recognised that wherethe amendment does not constitute the addition of new causeof action or raise different case, but amounts to no morethan different or additional approach to the same facts, theamendment will be allowed even after the expiry of thestatutory period of limitation:…..”

28. In entitled, G. Nagamma & Anr. v. Siromanamma & Anr.,(1996) 2 SCC 25, this Court considered the proposed amendment of theplaint and noticing that neither the cause of action would change nor therelief would be materially affected, allowed the same. This Court in thiscase noticed that in the plaintiff’s suit for specific performance, theplaintiff was entitled to plead even inconsistent pleas and that in thepresent case, the plaintiffs were seeking only the alternative reliefs. Itappears that the plaintiffs had filed suit for specific performance of anagreement of re-conveyance. By the application under Order VI Rule17 of the CPC for amendment of the plaint, the appellants were pleadingthat the transactions of execution of the sale deed and obtaining adocument for re- conveyance were single transactions viz. mortgage byconditional sale. They also wanted to incorporate an alternative relief toredeem the mortgage. At the end of the prayer, the plaintiff soughtalternatively to grant of decree for redemption of the mortgage. Thisamendment was permitted by this Court.

29. In Pankaja & Anr. v. Yellappa (dead) by lrs. & Ors., (2004)6 SCC 415, this Court held that it was in the discretion of the court toallow an application under Order VI Rule 17 of the CPC seekingamendment of the plaint even where the relief sought to be added byamendment was allegedly barred by limitation. The Court noticed thatthere was no absolute rule that the amendment in such case should notbe allowed. It was pointed out that the court’s discretion in this regarddepends on the facts and circumstances of the case and has to beexercised on judicial evaluation thereof. It would be apposite to noticethe observations of this Court in this pronouncement in extenso. Theprinciples were laid down by this Court thus:

“12. So far as the court’s jurisdiction to allow an amendmentof pleadings is concerned, there can be no two opinions thatthe same is wide enough to permit amendments even in caseswhere there has been substantial delay in filing suchamendment applications. This Court in numerous cases has

held that the dominant purpose of allowing the amendment isto minimise the litigation, therefore, if the facts of the case sopermit, it is always open to the court to allow applications inspite of the delay and laches in moving such amendmentapplication.

13. But the question for our consideration is whether in caseswhere the delay has extinguished the right of the party byvirtue of expiry of the period of limitation prescribed in law,can the court in the exercise of its discretion take away theright accrued to another party by allowing such belatedamendments.

14. The law in this regard is also quite clear and consistentthat there is no absolute rule that in every case where reliefis barred because of limitation an amendment should not beallowed. Discretion in such cases depends on the facts andcircumstances of the case. The jurisdiction to allow or notallow an amendment being discretionary, the same will haveto be exercised on judicious evaluation of the facts andcircumstances in which the amendment is sought. If thegranting of an amendment really subserves the ultimate causeof justice and avoids further litigation the same should beallowed. There can be no straitjacket formula for allowingor disallowing an amendment of pleadings. Each casedepends on the factual background of that case.

xxx

16. This view of this Court has, since, been followed by aFthree-Judge Bench of this Court in the case of T.N. AlloyFoundry Co. Ltd. v. T.N. Electricity Board [(2004) 3 SCC392]. Therefore, an application for amendment of the pleadingshould not be disallowed merely because it is opposed on theground that the same is barred by limitation, on the contrary,Gapplication will have to be considered bearing in mind thediscretion that is vested with the court in allowing ordisallowing such amendment in the interest of justice.

xxx

18. We think that the course adopted by this Court in RaguThilak D. John case [(2001) 2 SCC 472] applies appropriately

to the facts of this case. The courts below have proceeded onan assumption that the amendment sought for by the appellantsis ipso facto barred by the law of limitation and amounts tointroduction of different relief than what the plaintiff hadasked for in the original plaint. We do not agree with thecourts below that the amendment sought for by the plaintiffintroduces different relief so as to bar the grant of prayerfor amendment, necessary factual basis has already been laiddown in the plaint in regard to the title which, of course, wasdenied by the respondent in his written statement which willbe an issue to be decided in trial. Therefore, in the facts ofthis case, it will be incorrect to come to the conclusion that bythe amendment the plaintiff will be introducing differentrelief.”

30. From the above, therefore, one of the cardinal principles oflaw in allowing or rejecting an application for amendment of the pleadingis that the courts generally, as rule, decline to allow amendments, if afresh suit on the amended claim would be barred by limitation on thedate of filing of the application. But that would be factor to be takeninto account in the exercise of the discretion as to whether the amendmentshould be ordered, and does not affect the power of the court to order it,if that is required in the interest of justice.

31. In Ragu Thilak D. John v. S. Rayappan & Ors., (2001) 2SCC 472, this Court also observed that where the amendment was barredby time or not, was disputed question of fact and, therefore, that prayerfor amendment could not be rejected and in that circumstances the issueof limitation can be made an issue in the suit itself like the one made bythe High Court in the case on hand.

32. In decision in Vishwambhar & Ors. v. Laxminarayan(Dead) through Lrs. & Anr., (2001) 6 SCC 163, this Court held thatthe amendment though properly made cannot relate back to the date offiling of the suit, but to the date of filing of the application.

33. Again, in Vineet Kumar v. Mangal Sain Wadhera, (1984) 3SCC 352 : AIR 1985 SC 817, this Court held that if prayer foramendment merely adds to the facts already on record, the amendmentwould be allowed even after the statutory period of limitation.

AIMPUGNED ORDERS

34. We now proceed to look into the two orders passed by theHigh Court i.e. one by the learned Single Judge and the other in theappeal by the Division Bench.

35. The learned Single Judge in Sanjeev Builders Pvt. Ltd. &Ors. v. Life Insurance Corporation of India, 2018 SCC OnLine Bom15283, while allowing the Chamber Summons and permitting the plaintiffsto amend the plaint, observed thus:

“5. It is the case of the applicant as submitted by Ms. Pandathat while filing the suit, plaintiffs quantified the estimatedCdamages likely to be caused to them by reason of nonperformance at Rs. 1,01,00,000/- The value of the suitproperty increased during the pendency of the suit. Accordingto plaintiffs’ estimate, the value of the property today can beestimated to be Rs. 400,01,00,000/- and if the court is notDinclined to grant specific performance, then the damageswhich plaintiffs would suffer on account of non performanceby the defendants under the agreement should be Rs.400,01,00,000/-. Therefore, there is already claim for damagesbut what plaintiffs are seeking today is only enhancing theclaim, of course subject to provisions of Section 73 of theEContract Act.

6. Ms. Paranjape submitted that after 30 years, this applicationis filed for enhancement and therefore, ex- facie the increasedamount is barred by limitation. Ms. Paranjape submitted thatthough the settled position in law is that courts are generallyFliberal with pre-trial amendment, when ex-facie claim appearsto be barred by limitation, the court should not permit theamendment.

7. What one should keep in mind is this figure of Rs.400,01,00,000/- can tomorrow go up or go down.

Plaintiffs are only estimating it to be the amount whichaccording to plaintiffs, is the loss which they would suffer.Whether that is the right estimate can be decided only at thetime of trial. Even in para 12 of the plaint plaintiff has stated“…….suffered loss and damages which they estimateHat……….” In prayer clause-(b)(v) plaintiff pray “ or such

other sum as this Honourable Court may deem just andproper……” Further, if this figure of Rs. 1,01,00,000/- is notamended as prayed in this Notice of Motion, defendant willobject the attempt of plaintiff to claim more as damages sayingplaintiff cannot go beyond what is averred in the plaint. Dueto situation beyond the control of plaintiff, this suit hasremained pending for almost 32 years. Chances of sufferinggreater prejudice is more if the amendment is not allowed. Itis clarified that plaintiff will still have to prove every penny itis claiming as damages.

xxxxxx

10. Admittedly, the trial is yet to begun though issues havebeen framed long ago.

11. In the circumstances, keeping open rights and contentionsof defendants to raise the issue of limitation which the courtwill decide at the time of trial, Chamber summons allowed interms of prayer clause-(a) and accordingly disposed.”

36. While affirming the aforesaid order, the High Court in Appeal(L) No. 499 of 2018 held as under:

“4. Undisputedly, trial is yet to commence. The amendmenthas been allowed by the learned Single Judge by giving cogentand sound reasons. Merely because the Plaintiffs are permittedto amend the plaint does not mean that the claim which hasbeen made by the Plaintiffs by way of amendment would begranted by the Court. Defendants can always file anadditional Written Statement to contest the claim of thePlaintiffs. In such additional Written statement, Appellantscan also raise ground with regard to limitation which willhave to be gone into by the learned Single Judge. In anycase, in the present case, Appellants have also filed additionalWritten Statement so as to meet the grounds brought on recordby way of amendment.5. In that view of the matter, we do not find that this is fitcase to interfere with the discretion exercised by the learnedSingle Judge. Appeal is therefore rejected.”

1144SUPREME COURT REPORTS

ALIFE INSURANCE CORPORATION OF INDIA (SUPRA)

37. We now proceed to give fair idea, as regards the judgmentrendered by coordinate Bench of this Court in the case of LifeInsurance Corporation of India (supra) dated 24.10.2017.

B38. The said appeal before this Court arose out of the judgment ofthe High Court of Bombay dated 22.08.2014 in and by which the DivisionBench dismissed the appeal filed by the appellant herein Life InsuranceCorporation of India (for short, ‘LIC’) thereby affirming the order of theSingle Judge in the Chamber Summons No. 187 of 2014 by which therespondent No. 3 therein was impleaded as the plaintiff No. 3 in the SuitCNo. 894 of 1986.

39. It appears from the pleadings, more particularly, the factsrecorded in the judgment rendered by the coordinate Bench that in theyear 2014, the respondent No. 3 therein, namely, the Kedia ConstructionCompany Ltd. filed the Chamber Summons No. 187 of 2014 stating thatDsubsequent to the filing of the suit for the specific performance of contract,with the consent of the respondent No. 2, plaintiff No. 1/respondent No.1 had assigned its interest to the respondent No. 3 for consideration ofRs. 23,31,000/- by an agreement for sale dated 24.08.1987. The chambersummons was filed to implead the respondent No. 3 therein as the plaintiffENo. 3 with prayer to amend the plaint pursuant to the agreement ofsale in its favour. The appellant herein (LIC) had opposed the chambersummons on the ground that the respondent No. 3 therein was not abona fide assignee or necessary party and that the issues in the suitwere framed on 31.01.2014 and there had been an inordinate delay on27 years in filing the application which had not been properly explained.F

40. In the aforesaid set of facts, this Court while allowing theappeal filed by the appellant herein (LIC) held as under:

“11. The stand of Respondent 3 is that it claims as an assigneeof the rights of Respondents 1 and 2 and that it has the rightGto continue the suit under Order 22 Rule 10 CPC and theprovisions of limitation, do not apply to such an application.To appreciate merits of this contention, we may usefully referto Order 22 Rule 10 CPC, which reads as under:

Order 22 — Death, Marriage and Insolvency of Parties

“10. Procedure in case of assignment before final orderin suit.—(1) In other cases of an assignment, creation ordevolution of any interest during the pendency of suit,the suit may, by leave of the court, be continued by oragainst the person to or upon whom such interest has comeor devolved.

(2) The attachment of decree pending an appeal therefromshall be deemed to be an interest entitling the person whoprocured such attachment to the benefit of sub-rule (1).”

Under Order 22 Rule 10 CPC, when there has been anassignment or devolution of interest during the pendency ofa suit, the suit may, by leave of the court, be continued by oragainst person to or upon whom such interest has beenassigned or devolved and this entitles the person who hasacquired an interest in the subject-matter of the litigation byan assignment or creation or devolution of interest pendentelite or suitor or any other person interested, to apply to thecourt for leave to continue the suit. When the plaintiff assigns/transfers the suit during the pendency of the suit, the assigneeis entitled to be brought on record and continue the suit. Order22 Rule 10 CPC enables only continuance of the suit by theleave of the court. It is the duty of the court to decide whetherleave was to be granted or not to the person or to the assigneeto continue the suit. The discretion to implead or not to impleadparties who apply to continue the suit must be exercisedjudiciously and not arbitrarily.12. The High Court was not right in holding that mere allegedtransfer/assignment of the agreement would be sufficient togrant leave to Respondent 3 to continue the suit. From thefiling of the suit in 1986, over the years, valuable right ofdefence accrued to the appellant; such valuable right ofdefence cannot be defeated by granting leave to the thirdrespondent to continue the suit in the application filed underOrder 22 Rule 10 CPC after 27 years of filing of the suit. Thelearned Single Judge was not right in saying that impleadingRespondent 3 as Plaintiff 3 would cause no prejudice to theappellant and that the issues can be raised at the time oftrial.

13. In suit for specific performance, application forimpleadment must be filed within reasonable time.Considering the question of impleadment of party in suitfor specific performance after referring to various judgments,in Vidur Impex and Traders (P) Ltd. v. Tosh Apartments (P)Ltd. [Vidur Impex and Traders (P) Ltd. v. Tosh Apartments (P)Ltd., (2012) 8 SCC 384 : (2012) 4 SCC (Civ) 1] the Courtsummarised the principles as under : (SCC p. 413, para 41)

“41. Though there is apparent conflict in the observationsmade in some of the aforementioned judgments, the broadprinciples which should govern disposal of an applicationfor impleadment are:

41.1. The court can, at any stage of the proceedings, eitheron an application made by the parties or otherwise, directimpleadment of any person as party, who ought to havebeen joined as plaintiff or defendant or whose presencebefore the court is necessary for effective and completeadjudication of the issues involved in the suit.

41.2. necessary party is the person who ought to bejoined as party to the suit and in whose absence an effectivedecree cannot be passed by the court.

41.3. proper party is person whose presence wouldenable the court to completely, effectively and properlyadjudicate upon all matters and issues, though he may notbe person in favour of or against whom decree is to bemade.

41.4. If person is not found to be proper or necessaryparty, the court does not have the jurisdiction to order hisimpleadment against the wishes of the plaintiff.

41.5. In suit for specific performance, the court can orderimpleadment of purchaser whose conduct is above board,and who files application for being joined as party withinreasonable time of his acquiring knowledge about thepending litigation.

41.6. However, if the applicant is guilty of contumaciousconduct or is beneficiary of clandestine transaction or

transaction made by the owner of the suit property inviolation of the restraint order passed by the court or theapplication is unduly delayed then the court will be fullyjustified in declining the prayer for impleadment.”

In light of the above principles, considering the case in hand,in our view, the application filed for impleading Respondent3 as Plaintiff 3 was not filed within reasonable time. Noexplanation is offered for such an inordinate delay of 27years, which was not kept in view by the High Court.

14. Be it noted that an application under Order 22 Rule 10CPC seeking leave of the court to continue the suit by theassignee/third respondent was not actually filed. ChamberSummons No. 187 of 2014 was straightaway filed praying toamend the suit which would have been the consequentialamendment, had the leave to continue the suit been grantedby the court.

15. As pointed out earlier, the application was filed after 27years of filing of the suit. Of course, the power to allow theamendment of suit is wide and the court should not adopthypertechnical approach. In considering amendmentapplications, court should adopt liberal approach andamendments are to be allowed to avoid multiplicity oflitigations. We are conscious that mere delay is not groundfor rejecting the amendment. But in the case in hand, theparties are not rustic litigants; all the respondents arecompanies and the dispute between the parties is commerciallitigation. In such facts and circumstances, the amendmentprayed in the chamber summons filed under Order 22 Rule10 CPC ought not to have been allowed, as the same wouldcause serious prejudice to the appellant. In our view, theimpugned order, allowing Chamber Summons No. 187 of 2014filed after 27 years of the suit would take away the substantialrights of defence accrued to the appellant and the samecannot be sustained.

16. In the result, the impugned judgment [LIC v. SanjeevBuilders (P) Ltd., 2014 SCC OnLine Bom 4811] is set asideand the appeal is allowed. Chamber Summons No. 187 of 2014in Suit No. 894 of 1986 stands dismissed. No order as to costs.”

A41. Thus, from the aforesaid, it is evident that coordinate Benchof this Court took the view that impleading the respondent No. 3 thereinas the plaintiff No. 3 would cause serious prejudice to the appellant.This Court took the view that no explanation was offered for an inordinatedelay of twenty-seven years, which was overlooked by the High Court.Even while allowing the appeal filed by the appellant herein, the coordinateBBench of this Court observed that mere delay would not be ground forrejecting the amendment. However, in the facts of the case, since theparties not being rustic litigants and all the respondents therein beingcompanies and the dispute being commercial litigation, the amendmentcould not have been permitted after twenty-seven years of the suit, as itCwould take away the substantial rights of defence accrued in favour ofthe appellant (LIC).

42. We are of the view that the judgment and order passed by thecoordinate Bench of this Court in the Life Insurance Corporation ofIndia (supra) has no application so far as the present appeal is concerned.DThe appellant herein cannot succeed in the present appeal merely on thestrength of the judgment and order passed by this Court in the LifeInsurance Corporation of India (supra).

ORDER II RULE 2 OF THE CPC

43. In the present appeal, the principal argument of the learnedEcounsel appearing for the appellant is that the amendment applicationshould have been rejected by the courts below applying the principle ofOrder II Rule 2 of the CPC.

44. The said provision is set out below:F“Order II Rule 2 of the Code of Civil Procedure:

2. Suit to include the whole claim.-(1) Every suit shall includethe whole of the claim which the plaintiff is entitled to makein respect of the cause of action; but plaintiff may relinquishany portion of his claim in order to bring the suit within theGjurisdiction of any Court.

(2) Relinquishment of part of claim.-Where plaintiff omitsto sue in respect of, or intentionally relinquishes, any portionof his claim, he shall not afterwards sue in respect of theportion so omitted or relinquished.

(3) Omission to sue for one of several reliefs.-A person entitledto more than one relief in respect of the same cause of actionmay sue for all or any of such reliefs; but if he omits, exceptwith the leave of the Court, to sue for all such reliefs, he shallnot afterwards sue for any relief so omitted.

Explanation.-For the purposes of this rule an obligation anda collateral security for its performance and successive claimsarising under the same obligation shall be deemed respectivelyto constitute but one cause of action.

Illustration

lets house to at yearly rent of Rs. 1200. The rent forthe whole of the years 1905, 1906 and 1907 is due andunpaid. sues in 1908 only for the rent due for 1906. Ashall not afterwards sue for the rent due for 1905 or 1907.”

45. The expressions “omits to sue” and “intentionally relinquishany portion of his claim” give an indication as to the intention of thelegislature in framing the said rule. The term ‘sue’ can mean both thefiling of the suit and prosecuting the suit to its culmination, depending onthe context of the provision. In the present case, the legislature thoughtit fit to debar plaintiff from suing afterwards for any relief which he/she has omitted without the leave of the court or from suing in respect ofany portion of his claim which he intentionally relinquishes. Order IIRule 2(1) provides that every suit shall include the whole of the claimwhich the plaintiff is entitled to make in respect of the cause of action.

46. The provision of Order II Rule 2 of the CPC has been welldiscussed by the Privy Council in the case of Mohd. Khalil Khan &Ors. v. Mahbub Ali Mian & Ors., AIR 1949 PC 78, held as under:

“The principles laid down in the cases thus far discussedmay be thus summarized :

(1.) the correct test in cases falling under Or. 2, r. 2, is “whetherthe claim in the new suit is, in fact, founded on cause ofaction distinct from that which was the foundation for theformer suit.” (Moonshee Buzloor Ruheem v. ShumsoonnissaBegum.) (2.) The cause of action means every fact which willbe necessary for the plaintiff to prove, if traversed, in orderto support his right to the judgment. (Read v. Brown.) (3.) If

the evidence to support the two claims is different, then thecauses of action are also different. (Brunsden v. Humphrey.)(4.) The causes of action in the two suits may be consideredto be the same if in substance they are identical. (Brunsden v.Humphrey.) (5.) The cause of action has no relation whateverto the defence that may be set up by the defendant, nor doesit depend on the character of the relief prayed for by theplaintiff. It refers “to the media upon which the plaintiff asksthe Court to arrive at conclusion in his favour.” (Muss.Chand Kour v. Partab Singh.) This observation was made byLord Watson in case under s. 43 of the Act of 1882(corresponding to Or. 2, r. 2), where plaintiff made variousclaims in the same suit.”

47. In Upendra Narain Roy v. Rai Janoki Nath Roy, AIR 1919Cal 904, Division Bench of the Calcutta High Court had an occasion toconsider this question. Woodroffe, J. has observed:

“.....As regards the other point it has more ingenuity thansubstance. It proceeds on the erroneous assumption that theamendment was prohibited by Or. II, r. 2. This Rule does nottouch the matter before us. It refers to case where there hasbeen suit in which there has been an omission, to sue inErespect of portion of claim, and decree has been made inthat suit. In that case second suit in respect of the portionso omitted is barred. That is not the case here. In the presentcase the suit has not been heard but claim has been omittedby, it is said, inadvertence. To hold that in such case anamendment should not be allowed would be to hold somethingFwhich the Rule does not say and which would be absurd. TheRule says “he shall not afterwards sue,” that is, it assumesthat there has been suit carried to decision, and sub-sequent suit. It does not apply to amendment where there hasbeen only one suit. As the Plaintiff had in law right to applyGfor an amendment before the conclusion of his suit, it cannotbe said that any rights of the Respondent in the Pabna suitare affected. Such contention is based on the erroneousassumption that nothing could be done by way of amendmentof the Calcutta suit to remove the objection that the claims onthe previous mortgage or charge were not sustainable. case

would fall within Or. II, r. 2, only if Plaintiff fails to applyfor amendment before decree, and then brings another suit.The Plaintiffs are not doing that but asking for amendment inthe one and only suit they have brought. This is, therefore,not case in which the amendment either affects rights to theother party, orotherwise prejudices him.”

(emphasis supplied)

48. Constitution Bench of this Court, considering the scope andapplicability of Order II Rule 2 of the CPC, in the case of GurbuxSingh v. Bhooralal, AIR 1964 SC 1810, held as under:

“6. In order that plea of Bar under Order 2 Rule 2(3) ofthe Civil Procedure Code should succeed the defendant whoraises the plea must make out; (i) that the second suit was inrespect of the same cause of action as that on which theprevious suit was based; (2) that in respect of that cause ofaction the plaintiff was entitled to more than one relief; (3)that being thus entitled to more than one relief the plaintiff,without leave obtained from the Court omitted to sue for therelief for which the second suit had been filed. From thisanalysis it would be seen that the defendant would have toestablish primarily and to start with, the precise cause of actionupon which the previous suit was filed, for unless there isidentity between the cause of action on which the earlier suitwas filed and that on which the claim in the latter suit is basedthere would be no scope for the application of the bar. Nodoubt, relief which is sought in plaint could ordinarily betraceable to particular cause of action but this might, by nomeans, be the universal rule. As the plea is technical bar ithas to be established satisfactorily and cannot be presumedmerely on basis of inferential reasoning. It is for this reasonthat we consider that plea of bar under Order 2 Rule 2 ofthe Civil Procedure Code can be established only if thedefendant files in evidence the pleadings in the previous suitand thereby proves to the Court the identity of the cause ofaction in the two suits. It is common ground that the pleadingsin CS 28 of 1950 were not filed by the appellant in the presentsuit as evidence in support of his plea under Order 2 Rule 2of the Civil Procedure Code. The learned trial Judge, however,

CDEFG

Awithout these pleadings being on the record inferred whatthe cause of action should have been from the reference tothe previous suit contained in the plaint as matter ofdeduction. At the stage of the appeal the learned District Judgenoticed this lacuna in the appellant’s case and pointed out,in our opinion, rightly that without the plaint in the previousBsuit being on the record, plea of bar under Order 2 Rule2 of the Civil Procedure Code was not maintainable.”

49. So far as, Gurbux Singh (supra) is concerned, we may clarifythat the entire consideration in the said case by this Court was to thefact that there was relinquishment of claim by the plaintiff therein,Cbut the relevant point which was considered by this Court was that therelief had become time barred. The ratio of the said judgment is that therelief being barred by limitation, the Order II Rule 2 of the CPC onlycame in as an adjunct. However, Gurbux Singh (supra) makes it clearthat the bar of Order II Rule 2 of the CPC applies only to the subsequentDsuits.

50. In the light of the principles discussed and the law laid downby the Constitution Bench as also the other decisions discussed above,we are of the view that if the two suits and the relief claimed therein arebased on the same cause of action then the subsequent suit will becomeEbarred under Order II Rule 2 of the CPC. However, we do not find anymerit in the contention raised on behalf of the appellant herein that theamendment application is liable to be rejected by applying the bar underOrder II Rule 2 of the CPC. Order II Rule 2 of the CPC cannot apply toan amendment which is sought on an existing suit.

F51. In the aforesaid context, we may refer to with approval adecision rendered by the High Court of Delhi in the case of VaishCooperative Adarsh Bank Ltd. v. Geetanjali Despande & Ors., (2003)102 DLT 570. Paras 17 and 18 resply indicate that the bar under OrderII Rule 2 of the CPC is only for subsequent suit. These paras read asunder:G

“17. Reverting to the preliminary objections raised by theappellant against the maintainability of the application foramendment, one would come across with peculiar plea ofproposed amendment being barred under Order II Rule 2 CPC.General rule enacted under Order II Rule 2.(1) CPC is thatH

every suit must include the whole of the claim which theplaintiff is entitled to make in respect of the cause of action.Order II Rule 2.(2) precludes subsequent suit on any partof claim, which had been omitted or intentionally relinquishedby the plaintiff in an earlier suit based on the same cause ofaction. Similarly, where the plaintiff is entitled to more thanone relief in respect of the same cause of action but omits,except with the leave of the court, to sue for all such reliefs,he is debarred in view of the Order II Rule 2(3) CPC fromsuing afterwards for any relief so omitted.18. plea of bar under Order II Rule 2 CPC is maintainableonly if the defendant makes out (i) that the cause of action ofthe second suit is the same on which the previous suit wasbased, (ii) that in respect of that cause of action, the plaintiffwas entitled to more than one relief and (iii) that the plaintiffwithout leave obtained from the Court omitted to sue earlierfor the relief for which the second suit is filed.(see “GurbuxSingh v. Bhooralal”, AIR 1964 SC 1810). Clearly, Order IIRule 2 CPC enacts rule barring second suit in the situationindicated above. Identity of cause of action in the formerand subsequent suits is essential before the bar contemplatedunder Order II Rule 2 CPC is set to operate. Thus, where theclaim or reliefs in the second suit are based on distinct causeof action, Order II Rule 2 CPC would have no application.Order II Rule 2 CPC operates as bar against subsequentsuit if the requisite conditions for application thereof aresatisfied and the field of amendment of pleadings falls farbeyond its purview. The plea of amendment being barredunder Order II Rule 2 CPC is, thus, misconceived and hence“negatived.

(emphasis supplied)

52. We are also not impressed by the contention raised on behalfof the appellant herein that the amendment application is hit by theprinciple of constructive res judicata. The principle of constructive resjudicata has no application in the instant case, since there was no formaladjudication between the parties after full hearing. The litigation beforethis Court has come up at the stage when the courts below allowed theamendment of plaint for the purpose of enhancing the amount towards

Adamages in the alternative to the main relief of specific performance ofthe contract.

SPECIFIC RELIEF ACT, 1963

53. The above takes us now to consider the proviso to Section21(5) and Section 22(2) of the Act 1963.B

54. The Act 1963 contemplates that in addition to or in substitutionof claim for performance, plaintiff is entitled to claim compensation.Section 21 of the Act 1963 provides as follows:

“21. Power to award compensation in certain cases.–(1)CIn suit for specific performance of contract, the plaintiffmay also claim compensation for its breach [in addition to]such performance.

(2) If, in any such suit, the court decides that specificperformance ought not to be granted, but that there is aDcontract between the parties which has been broken by thedefendant, and that the plaintiff is entitled to compensationfor that breach, it shall award him such compensationaccordingly.

(3) If, in any such suit, the court decides that specificEperformance ought to be granted, but that it is not sufficientto satisfy the justice of the case, and that some compensationfor breach of the contract should also be made to the plaintiff,it shall award him such compensation accordingly.

(4) In determining the amount of any compensationFawarded under this section, the court shall be guided by theprinciples specified in section 73 of the Indian Contract Act,1872 (9 of 1872).

(5) No compensation shall be awarded under this sectionunless the plaintiff has claimed such compensation in hisGplaint:

Provided that where the plaintiff has not claimed any suchcompensation in the plaint, the court shall, at any stage ofthe proceeding, allow him to amend the plaint on such termsas may be just, for including claim for such compensation.

Explanation.-The circumstances that the contract hasbecome incapable of specific performance does not precludethe court from exercising the jurisdiction conferred by thissection.”

55. Under sub-section (2) of Section 21, the court is empoweredto award compensation for breach where it holds that there is contractbetween the parties which was broken by the defendant but in the event,it decides that specific performance ought not to be granted. Sub-section(3) of Section 21 empowers the court to grant compensation for breachin addition to decree for specific performance where it is of the viewthat specific performance alone would not satisfy the justice of the case.Sub-section (5), however, stipulates that compensation cannot be awardedunder the section unless the Plaintiff has claimed such compensation inthe plaint. This provision is mandatory.

56. The proviso to sub-section (5) of Section 21 dilutes the rigoursof the main provision by allowing the plaintiff who has not claimed suchcompensation in the plaint to amend the plaint at any stage of theproceedings and the court, it has been provided, shall at any stage of theproceedings allow an amendment for including claim for suchcompensation on such terms as may be just. In Shamsu Suhara Beeviv. G. Alex & Anr., (2004) 8 SCC 569, for instance, this Court held thatthe High Court erred in granting compensation under Section 21, in additionto the relief of specific performance in the absence of prayer made tothat effect either in the plaint as originally filed or as amended at anystage of the proceedings.

57. Section 22 of the Act 1963 contains the following provisions:

“22. Power to grant relief for possession, partition, refund ofearnest money, etc.-(1) Notwithstanding anything to thecontrary contained in the Code of Civil Procedure, 1908, (5of 1908), any person suing for the specific performance of acontract for the transfer of immovable property may, in anappropriate case, ask for-

(a)possession, or partition and separate possession,of the property, in addition to such performance;or

(b)any other relief to which he may be entitled,including the refund of any earnest money or

deposit paid or (made by) him, in case his claimfor specific performance is refused.

(2) No relief under clause (a) or clause (b) of sub-section(1) shall be granted by the Court unless it has been specificallyclaimed:

Provided that where the plaintiff has not claimed any suchrelief in the plaint, the Court shall, at any stage of theproceeding, allow him to amend the plaint on such terms asmay be just for including claim for such relief.

(3) The power of the Court to grant relief under clause (b)Cof sub-section (1) shall be without prejudice to its powers toaward compensation under section 21.”

58. Section 22 has non-obstante provision which overrides theCPC. plaintiff who claims specific performance of contract for thetransfer of immovable property, may in an appropriate case ask forDpossession, partition and separate possession of the property, in additionto specific performance. The plaintiff may also claim any other reliefincluding the refund of earnest money or deposit paid, in case the claimfor specific performance is refused. Corresponding to the provisions ofsub-section (5) of Section 21, sub-section (2) of Section 22 stipulatesEthat such relief cannot be granted by the court unless it has beenspecifically claimed. However, the proviso requires that the court shallat any stage of the proceedings allow the plaintiff to amend the plaint toclaim such relief where it has not been originally claimed on such termswhich may appear just.

THE SPECIFIC RELIEF (AMENDMENT) ACT, 2018

59. The Act 1963 was amended in the year 2018 and in Section21 of the Principal Act, in sub-section (1) the words “either in additionto, or in substitution of” were deleted and the words “in addition to”were substituted in their place. As result, damages are now availableonly in addition to specific performance and not in lieu thereof. This is aGconsequence of other amendments to the Act 1963 whereby the amendingact has eliminated the discretion of courts by substituting Sections 10and 20 resply of the Principal Act.

60. The aforesaid provisions of the Act 1963 were duly consideredby the Bombay High Court in the case of Kahini Developers Pvt. Ltd.H

v. Mukesh Morarjipanchamatia & Ors., reported in (2013) 3 Mah LJ440, Dr. Justice D.Y. Chandrachud, (as His Lordship then was), speakingfor the Bench, very lucidly and in the most erudite manner explained asunder:

“9. The object of the legislature in introducing the proviso tosub-section (5) of section 21 and to sub-section (2) of section22 was to obviate multiplicity of the proceedings. In BabuLal v. Hazari Lal, (1982) 1 SCC 525: AIR 1982 SC 818 theSupreme Court noted that the legislature “has given amplepower to the Court to allow amendment of the plaint at anystage.” (At para 20 page 825). This, the Supreme Court held,would include even the stage of execution. The Supreme Courtalso held that mere contract for sale or for that matter, adecree for specific performance does not confer title on thebuyer and that title would pass only upon execution of thedecree. While discussing the issue of limitation, the SupremeCourt held as follows:

“If once we accept the legal position that neither contractfor sale nor decree passed on that basis for specificperformance of the contract gives any right or title to thedecree-holder and the right and the title passes to him onlyon the execution of the deed of sale either by the judgment-debtor himself or by the Court itself in case he fails toexecute the sale deed, it is idle to contend that valuableright had accrued to the Petitioner merely because decreehas been passed for the specific performance of thecontract. The limitation would start against the decree-holders only after they had obtained sale in respect ofthe disputed property. It is, therefore, difficult to acceptthat valuable right had accrued to the judgment-debtorby lapse of time. Section 22 has been enacted only for thepurpose of avoiding multiplicity of proceedings which thelaw Courts always abhor.” (At para 21 page 825)

10. The same view was taken by the Supreme Court in laterjudgment in Jagdish Singh v. Natthu Singh, (1992) 1 SCC647 : AIR 1992 SC 1604:

“So far as the proviso to sub-section (5) is concerned, twopositions must be kept clearly distinguished. If the

amendment relates to the relief of compensation in lieu ofor in addition to specific performance where the plaintiffhas not abandoned his relief of specific performance theCourt will allow the amendment at any stage of theproceeding. That is claim for compensation falling undersection 21 of the Specific Relief Act, 1963 and theamendment is one under the proviso to sub-section (5).But different and less liberal standards apply if what issought by the amendment is the conversion of suit forspecific performance into one for damages for breach ofcontract in which case section 73 of the Contract Act isinvoked. This amendment is under the discipline of R.17,0.6, C.P.C. The fact that sub-section (4) in turn, invokessection 73 of the Contract Act for the principles ofquantification and assessment of compensation does notobliterate this distinction.” (At para 10 page 1608)In the decision in Shamsu Suhara Beevi (supra), while holdingthat the High Court had erred in granting compensation undersection 21, in addition to the relief of the specific performancein the absence of prayer to that effect, the Supreme Courtheld that prayer could have been made to that effect eitherin the plaint or by amending the plaint at any later stage of

the proceeding to include the relief of compensation inaddition to the relief of specific performance. The plaint,however, in that case, was never amended and the order ofthe High Court was, therefore, held to be in error. Theseprinciples have also been noticed in judgment of learnedSingle Judge of this Court in Manohar Dhundiraj Joshi v.Jhunnulal Hariram Yadao, 1983 Mh.L.J. 369.

11. Since the Court is informed that an appeal has been filedagainst the judgment of the learned Single Judge inHarinarayan G. Bajaj (supra), we are not expressing anyopinion on the correctness of that decision. We are,however,of the view that since the legislature has contemplated thatan amendment within the meaning of the provisos to section21(5) and section 22(2) of the Specific Relief Act, 1963 canbe made at any stage of the proceeding, such an amendmentwould not be barred bylimitation. Even as matter of first

principle, anapplication for amendment must be distinguishedfrom the cause of action which is sought to be set up by theamendment. As matter of general principle, though anapplication for amendment is allowed, the question as towhether the cause of action is within limitation would have tobe determined and adjudicated upon. While allowing anamendment, it is always open to Civil Court to direct thatthe amendment shall not relate back to the institution of theproceeding. The Court would thereforehave to determine attrial whether the cause of action is within limitation or isbarred. Where the legislature has contemplated that the plaintcan be amended at any stage of the proceeding as stipulatedin the provisos to section 21(5) and section 21(2). Such anamendment of the nature contemplated by those provisionscan indeed be brought about at any stage of the proceedings.”

(emphasis supplied)

61. In the case of B.K. Narayana Pillai v. Parameswaran Pillai& Anr., (2000) 1 SCC 712 relying upon the cases of A.K. Gupta (supra)and Ganesh Trading Co. (supra), this Court held that the court shouldadopt liberal approach in the matter of amendment and only when theother side had acquired any legal right due to lapse of time, the amendmentshould be declined. It has been held as follows:

“…..All amendments of the pleadings should be allowed whichare necessary for determination of the real controversies inthe suit provided the proposed amendment does not alter orsubstitute new cause of action on the basis of which theoriginal lis was raised or defence taken. Inconsistent andcontradictory allegations in negation to the admitted positionof facts or mutually destructive allegations of facts shouldnot be allowed to be incorporated by means of amendment tothe pleadings. Proposed amendment should not cause suchprejudice to the other side which cannot be compensated bycosts. No amendment should be allowed which amounts to orresults in defeating legal right accruing to the opposite partyon account of lapse of time. The delay in filing the petitionfor amendment of the pleadings should be properlycompensated by costs and error or mistake which, if notfraudulent, should not be made ground for rejecting theapplication for amendment of plaint or written statement.”

1160SUPREME COURT REPORTS

A62. In Jagdish Singh v. Natthu Singh, reported in (1992) 1 SCC647 : AIR 1992 SC 1604, this Court had the occasion to deal with theprovisions of Section 21 of the Act 1963. While analysing the aforesaidprovisions, this Court laid down that if the amendment relates to therelief of compensation in lieu of or in addition to specific performancewhere the plaintiff has not abandoned his relief of specific performanceBthe court should allow the amendment at any stage of the proceedingssince that is claim for compensation falling under Section 21 of the Act1963 and the amendment is one under the proviso to sub-section (5) ofSection 21. This Court, however, issued note of caution by laying downthat different and less liberal standards would apply if what is sought byCthe amendment is conversion of suit for specific performance into onefor damages for breach of contract, in which case Section 73 of theIndian Contract Act, 1872 would get invoked, and then the saidamendment would be under the discipline of Order VI Rule 17 of theCPC. This Court further held that when the plaintiff by his option hadmade specific performance impossible then Section 21 does not entitleDhim to seek damages. It is also held that in Indian Law when the contract,for no fault of the plaintiff, becomes impossible of performance Section21 enables award of compensation in lieu and substitution of specificperformance.

63. The legal position, therefore, in respect of scope and ambit ofESection 21 of the Act 1963 is clear and made so more by the ratio of theaforesaid decision of this Court.

64. The plaintiffs in the original plaint claimed for compensation inaddition to decree for specific performance of the agreement to sell.Therefore, strictly speaking the provisions of Section 21 of the Act 1963Fare not attracted to the facts of the present case. The intention of theplaintiffs in seeking for amendment of the plaint appears to be to get anenhanced amount of compensation than what was originally claimed inthe original plaint which was restricted only to Rs. 1,01,00,000/-. Theaforesaid intention becomes apparent when the averments made in theGapplication praying for amendment are looked into inasmuch as, theplaintiffs have stated that in view of the fact that in last 30 years therehad been tremendous escalation of the value of the suit property whichhas an adverse effect on the quantum of damages, compensation, reliefsought for the breach of contract by the appellant/defendant. Accordingto the plaintiffs the raising of the amount of compensation to Rs.H

400,01,00,000/- from Rs. 1,01,00,000/- as claimed in the original plainthas been necessitated in view of undue delay in the prosecution of thesuit which was not earlier foreseen, which in turn has caused moredamage to the plaintiffs through the years and therefore, they have soughtto raise the amount of compensation to the present value as stated abovefrom Rs. 1,01,00,000/-.

65. However, the argument of the learned counsel appearing forthe appellant in regard to the two provisos referred to above, is quitecurious. The argument is that the power of the court to permit the plaintiffto amend the plaint in suit filed for the specific performance of contractflows from Sections 21 and 22 resply of the Act, 1963 & the proviso tothe sub-section (5) of Section 21 of the Act 1963 may entitle the plaintiffto amend the plaint, provided the plaintiff has inadvertently or otherwiseomitted to pray for compensation. The argument proceeds on the footingthat in the present case, as the plaintiff specifically prayed forcompensation in the plaint, later if he seeks to amend that part of therelief, the sub-section (5) of Section 21 of the Act 1963 would be anembargo for the court to do so. We do not find any merit in this argumentof the learned counsel appearing for the appellant.66. The two provisos referred to above, deal with the question ofpermitting the plaintiff to amend his plaint. It is not, as if, in the absenceof these two provisos, it is not permissible in law for the plaintiff to carryout an amendment in his pleading by introducing relief for enhancedcompensation. Rule 17 of Order VI of the CPC does confer power on aCourt to allow party to alter or amend his pleading in such manner andon such terms as may be just. This rule does not stop at that, but itfurther says that all such amendments should be made as may benecessary for the purpose of determining the real question in controversybetween the parties. It is pertinent to note that this provision whichempowers the court in its discretion to permit party to amend hispleadings, was already on the statute book, when the Specific ReliefAct, 1963 was enacted. It can, therefore, be presumed that when thelatter legislation was on the anvil, the Parliament was aware of thispower of the court to permit amendment of pleadings. Therefore, it cannotbe successfully urged that suit for specific performance falling underthe provisions of the Act, 1963 would not be governed by the provisionsof the CPC. It is, therefore, clear that to such suit the provisionscontained in Order VI Rule 17 of the CPC would apply and plaintiff

Awho has earlier failed to incorporate the reliefs for compensation or whohas incorporated the reliefs for compensation but seeks amendment inthe same, could seek the permission of the court to introduce these reliefsby way of amendment.

67. It is important to note that sub-section (5) of Section 21 of theBAct 1963 was originally introduced to resolve the confusion over whetherthe court had the power to grant compensation in claim for specificperformance in absence of any pleading to that effect under the provisionsof the Act 1963. Prior to the enactment of the Act 1963 the LawCommission in its 9[th ]Law Commission Report while referring to thediverse opinions expressed by the High Courts recommended that in noCcase should compensation be decreed unless it is claimed by properpleading.

68. In The Arya Pradeshak Pritinidhi Sabha, Sindh, Punjab& Bilochistan v. Lahori Mal & Ors., (1924) 6 Lah LJ 286 : AIR 1924Lah 713, the Lahore High Court had held that the court has the power toDaward damages in substitution of or in addition to specific performanceeven though the plaintiff has not specifically claimed the same in itsplaint and written submissions. As against, the Madras High Court inSomasundaram Chettiar v. Chidambaram Chettiar, AIR 1951 Mad282 held that the court could not award damages in absence of specificEclaim for damages.

69. In Somasundaram Chettiar (supra), the Madras High Courtheld that the rationale for not allowing claim for damages in suit forspecific performance without specific pleading is based on the principlethat the plaintiff must establish its claim for damages and the defendantFmust be put on notice and correspondingly have an opportunity to adduceevidence that the damages claimed are excessive or that the plaintiffhas not suffered any damages.

70. Our final conclusions may be summed up thus:

(i)Order II Rule 2 CPC operates as bar against subsequentGsuit if the requisite conditions for application thereof aresatisfied and the field of amendment of pleadings falls farbeyond its purview. The plea of amendment being barredunder Order II Rule 2 CPC is, thus, misconceived and hencenegatived.

(ii)All amendments are to be allowed which are necessary forAdetermining the real question in controversy provided it doesnot cause injustice or prejudice to the other side. This ismandatory, as is apparent from the use of the word “shall”,in the latter part of Order VI Rule 17 of the CPC.

(iii)The prayer for amendment is to be allowed

(i)if the amendment is required for effective and properadjudication of the controversy between the parties,and

(ii)to avoid multiplicity of proceedings, provided

(a)the amendment does not result in injustice to the otherside,

(b)by the amendment, the parties seeking amendmentdoes not seek to withdraw any clear admission madeby the party which confers right on the other sideDand

(c)the amendment does not raise time barred claim,resulting in divesting of the other side of valuableaccrued right (in certain situations).

(iv)A prayer for amendment is generally required to be allowedunless

(i)by the amendment, time barred claim is sought tobe introduced, in which case the fact that the claimwould be time barred becomes relevant factor forconsideration,

(ii)the amendment changes the nature of the suit,

(iii)the prayer for amendment is malafide, or

(iv)by the amendment, the other side loses validGdefence.

(v)In dealing with prayer for amendment of pleadings, thecourt should avoid hypertechnical approach, and isordinarily required to be liberal especially where the oppositeparty can be compensated by costs.

A(vi)Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering amore satisfactory decision, the prayer for amendmentshould be allowed.

(vii)Where the amendment merely sought to introduce anBadditional or new approach without introducing timebarred cause of action, the amendment is liable to be allowedeven after expiry of limitation.

(viii) Amendment may be justifiably allowed where it is intendedto rectify the absence of material particulars in the plaint.

(ix)Delay in applying for amendment alone is not ground todisallow the prayer. Where the aspect of delay is arguable,the prayer for amendment could be allowed and the issueof limitation framed separately for decision.

D(x)Where the amendment changes the nature of the suit orthe cause of action, so as to set up an entirely new case,foreign to the case set up in the plaint, the amendment mustbe disallowed. Where, however, the amendment sought isonly with respect to the relief in the plaint, and is predicatedEon facts which are already pleaded in the plaint, ordinarilythe amendment is required to be allowed.

(xi)Where the amendment is sought before commencement oftrial, the court is required to be liberal in its approach. Thecourt is required to bear in mind the fact that the oppositeFparty would have chance to meet the case set up inamendment. As such, where the amendment does not resultin irreparable prejudice to the opposite party, or divest theopposite party of an advantage which it had secured as aresult of an admission by the party seeking amendment, theGamendment is required to be allowed. Equally, where theamendment is necessary for the court to effectivelyadjudicate on the main issues in controversy between theparties, the amendment should be allowed. (See VijayGupta v. Gagninder Kr. Gandhi & Ors., 2022 SCCOnLine Del 1897)

71. In the overall view of the matter, we are convinced that weshould not disturb the impugned order passed by the Division Bench ofthe High Court, affirming the order passed by the learned Single Judgeallowing the amendment application filed at the instance of the plaintiffs.

72. In the result, this appeal fails and is hereby dismissed with noorder as to costs.

73. Pending application, if any, stands disposed of.

Divya Pandey(Assisted by : Roopanshi Virang, LCRA)

Appeal dismissed.