Invoking Articles 226 and 227 of the Constitution, the petitioner, one of the defendants in pending Special Civil Suit No.305 of 1993, sought to challenge the interlocutory order dated 4.4.2007, below application Exh-197, of learned senior civil Judge, Vadodara, whereby the application of the original plaintiff for amendment of the claim, so as to increase the amount of claim of compensation, is allowed subject to producing the deficit Court fees of Rs.60,000/-.
2. Admittedly, the suit is filed for the relief and with prayers to order specific performance of the contract dated 20th October, 1988 and in the alternative, order refund of the amount with 18% per annum, which was paid by the plaintiff as also compensation of Rs.90 lacs. By making the application Exh-197, the plaintiff had sought to amend the claim of Rs.90 lacs to Rs.8 crores and that application being granted by the impugned order, the petitioner herein has been aggrieved and has moved this Court as aforesaid immediately in the year 2007. Upon issuance of notice, ad interim relief was granted and upon issuance of Rule, ad interim relief was confirmed with the effect that the operation of the impugned order was stayed.
3. It was vehemently argued by learned counsel Mr. Nilesh Pandya and learned senior advocate Mr. BB Naik appearing for the petitioner that the original plaintiff cannot be permitted to keep on increasing his claim on the basis of the events and the price rise happening after filing of the suit and the further claim for huge additional amount of compensation would be barred by provisions of the Limitation Act. It was also submitted that the application and the claim were not bona fide in view of the alleged fact that the original plaintiff was prolonging the proceeding before the trial Court since filing of the suit, and making repeated applications for increasing the amount of claim of compensation. It was further submitted that claim of compensation had to be restricted on the basis of the facts prevalent at the time of filing of the suit. Learned counsel relied upon judgment of the Supreme Court in South Konkan Distilleries and another Vs. Prabhakar Gajanan Naik and another, (2008) 14 SCC 632 to submit that one of the cardinal principles of law in allowing or rejecting an application for amendment of the pleading is that the courts generally, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the filing of the application. However, that would be a factor to be taken into account in the exercise of the discretion as to whether the amendment should be allowed, and does not affect the power of the court to allow it, if that is required in the interest of justice.
4. Learned counsel Mr. Mehul S. Shah appearing for the respondent concerned submitted that the provisions of the Limitation Act did not apply to the amendment allowed by the impugned order in view of express provisions of section 21 of the Specific Relief Act, 1963, according to which, the plaintiff is allowed to claim compensation for breach of contract. And the Court is duty bound to allow amendment if in any such suit for specific performance, the Court decides that specific performance ought not to be granted, but there was a contract between the parties, which had been broken by the defendant and the plaintiff is entitled to compensation for that breach. By virtue of express provisions of sub section (5) of section 21 of the Specific Relief Act, no compensation would be awarded unless the plaintiff had claimed such compensation in his plaint. By adding a proviso to that provision, the Legislature has made it clear that where the plaintiff had not claimed any such compensation in the plaint, the Court shall have to, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such compensation. Learned counsel relied upon judgment of this Court in Kanaiyalal Chandulal Ganeshwala v. Zubedabibi D/o Gulam Ahmad deceased through legal heirs and others, 2009(2) GLR 1067, wherein pari materia provisions of section 22 of the Specific Relief Act were interpreted for the proposition that once amendment is sought in the suit for specific performance of the agreement to sell, asking for possession, the Court has no other alternative but to allow the plaintiff to amend the plaint on such terms as may be just for including a claim for compensation. Mr. Shah also relied upon judgment of the Apex Court in Jagdish Singh Vs. Natthu Singh, [(1992) 1 SCC 647], wherein it is categorically clarified that, if the amendment relates to the relief of compensation in lieu of or in addition to specific performance where the plaintiff has not abandoned his prayer for specific performance, the Court will allow the amendment at any stage of the proceeding. It is also confirmed by the Apex Court in Pankaja and another Vs. Yellappa (D) and others, (AIR 2004 SC 4102), relying upon Raghu Thilak D. John Vs. S. Rayappan and others, (2001(2) SCC 472) that an amendment sought would not be declined on the plea that the relief sought by way of amendment was barred by time where that aspect was arguable in the circumstances of the case. The plea of limitation being disputed, would be made a subject matter of the issue after allowing the amendment prayed.
5. In view of the broad facts and pleadings of the parties in the present case, the original plaintiff appears to have increased or rather multiplied his claim for compensation manifold in view of rising market value of the property involved in the suit for specific performance. Therefore, it is an arguable issue whether the plaintiff could keep on increasing his claim for compensation and whether the provisions of the Limitation Act come into play at any stage of the proceeding. Therefore, keeping these issues open, the grant of limited relief in the form of allowing amendment of the plaint is not required to be interfered in exercise of extraordinary jurisdiction of this Court, particularly, in view of the above mentioned express provisions of the Specific Relief Act. It is however, clarified by consensus that all the legal contentions available to the petitioners, after the amendment, for resisting their claim are kept open for consideration by the trial Court. It is also clarified and observed at the request of learned counsel that at least now, after pendency of the suit for no less than 19 years, its hearing and disposal may be expedited with the cooperation of the parties, which is assured before this Court.
6. Accordingly, the petition is dismissed. Rule is discharged and interim relief is vacated with no order as to costs.
7. Civil application does not survive and stands disposed of accordingly.
(D.H.WAGHELA, J.) shekhar* Top