JUDGMENT
Nagendra Rai, J.
1. The plaintiff-petitioner has filed the present Civil Rev sion under Section 115 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) against the order dated 5-2-2001, passed by the Subordinate Judge v. Patnacity, in Title Suit No. 40 of 1997, rejecting his prayer for amendment of the plaint.
2. The facts necessary for disposal of the point involved in this case are that the plaintiff-petitioner filed a suit for specific performance of contract against defendant-opposite parties No. 1 and 2 on the assertion that defendant-opposite party Mo. 1 has entered into an agreement on 10-1-1995 for sale of the property detailed in the plaint on consideration amount of Rs. 2,25,000, out of which he had already paid Rs. 1,70,000. The suit was filed on 24-9-1997. During the pendency of the suit on 6-1-2001, the plaintiff filed a petition for amendment of relief No. 1 in the plaint. The proposed amendment was:
in case there is any legal difficulty in decreeing the suit for specific performance of contract of sale, as prayed for in the suit, in that case a decree for refund of Rs. 1,70,000 paid by the plaintiff to the defendant be passed with interest and/or compensation.
3. The defendant-opposite parties resisted the prayer of amendment on the ground that on 6-1-2001 when the prayer for amendment was made, the claim for refund of money was barred, by limitation under the provisions of the Limitation Act. The trial Court, after hearing the parties, rejected the prayer of the plaintiff-petitioner for the proposed amendment on the ground that the relief sought to be amended was barred by limitation on the date of filing of the application for amendment.
4. Learned Counsel appearing for the petitioner submitted that the suit filed by him was for specific performance of contract for the transfer of immovable property and he made a prayer for addition of alternative relief for the refund of the earnest money in terms of the provisions contained in Section 22(1)(b) of the Specific Relief Act and the said relief can be amended at any stage of the proceeding in terms of proviso to Sub-section (2) of Section 22 of the Specific Relief Act and the learned Subordinate Judge wrongly held that the claim of additional relief was barred by limitation. He further submitted that even if the amendment is treated as an amendment under Order VI Rule 17 of the Code, by the proposed amendment neither a new case was introduced nor a new cause of action was pleaded. Only an additional relief was sought for on the facts already on the record and such a prayer cannot be rejected on the ground that the same has been made after expiry of the statutory period of limitation.
5. Learned Counsel for the opposite parties submitted that the claim of relief of refund of money was a separate relief and the said claim was barred by limitation on the date of filing of the amendment petition and as such the Court below has rightly rejected the proposed amendment. In support of his submission, he relied upon a judgment of the learned Single Judge of this Court in the case of Bhagwati Prasad Jalan v. Smt Prem Lata Devi 1997 (1) All PLR 514.
6. Only point for consideration is as to whether in a suit for specific performance of contract, the plaintiff can make an alternative relief of refund of money in terms of Section 22(1)(b) of the Specific Relief Act at a stage when such relief is barred by lapse of time.
7. Order VI Rule 17 of the Code contains provision with regard to the amendment of the pleadings and it prowdes that the Court may allow the amendment of the pleadings at any stage of the proceeding in such manner or on such terms and conditions, provided such amendment is necessary for the purpose of determining the real question in controversy between the parties. The settled rule is that the suit must be tried on the original cause of action and that principle governs the subsequent stage of the suit, i.e., the appeal also. However, there are exceptions to the said rule and the pleadings can be amended to avoid multiplicity of the suits, or the same is necessary to decide the real question in controversy between the parties and to prevent miscarriage of justice due to bona fide mistake committed in the pleading.
8. Order VI Rule 17 of the Code is like other procedural law and it has been enacted with no other aim than to facilitate the task of administration of justice. Under the aforesaid rule, the power of the Court to allow the amendment is very wide and can be exercised at any stage of the proceeding. The guidelines for allowing the amendment are well-settled by the judgment of the Apex Court. In catena of cases, it has been held that the Court should adopt a liberal approach in allowing the amendment and the amendment should not be disallowed on hypertechnical grounds. If the amendment changes the cause of action or introduces a new case, the same should not be allowed. However, where the amendment only amounts to different or additional approach on the same facts, the amendment is to be allowed even after expiry of period of limitation.
9. In the case of A.K. Gupta & Sons , the Apex Court in paragraph 7 held as follows:
It is not in dispute that at the date of the application for amendment, a s uit fora money claim under the contract was barred. The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on a new case or cause of action is barred: Wldon v. Neale (1887) 19 QBD 394. But it is also well recognised that where 1 he amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of I he statutory period of limitation.
10. In the case of Monohar Lal v. N.B.M. Supply, Gurgaon 1969 S.C. 1267, the Apex Court held as follows:
Rules of procedure are intended to be a hardmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party apply ng was acting, mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.
11. In the case of Ganesh Trading Co. v. Moji Ram ,the Apex Court held that the Court may allow amendment in the interest of justice notwithstanding the law of limitation. However, while exercising the discretionary power the Court should adopt great care and circumspection.
12. Recently, the Apex Court in the case of B.K. Narayan Pillai v. Parameshwaran Pillai (2000) 1 S.C.C. 172 relying upon the case of A.K. Gupta & Sons (supra) and that Ganesh Trading Co. (supra) held that the Court should adopt liberal approach in the matter of amendment and only when the otherside acquired right due to lapse of time, the amendment should be refused. It has been held as follows:
All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsitent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings, Proposed amendment should not cause such prejuc ice to the otherside which cannot be compensated by costs. No amendment should be allowed which amounts to or relates (sic results) in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the petition for amendment of the pleadings should be properly compensdated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement.
13. Thus, the law of amendment being a procedural one and its only aim being to advance cause of administration of justice, the Court should adopt a liberal approach and the amendment should be allowed. Only in cases where right has accrued to the otherside and it cannot be compensated by cost, the amendment should be refused.
14. However, if the amendment sought for amounts to a different or additional approach or there is a claim of additional relief on the same set of pleadings, the same should be allowed notwithstanding the law of limitation.
15. In the present case, the question of amendment has to be considered in the light of the provisions contained under the Specific Relief Act. Sections 21 and 22 of the Specific Relief Act contain special rule of pleading regarding certain reliefs, which are to be claimed in a suit for specific performance of contract. Section 21 of the Specific Relief Act provides that in a suit for specific performance of contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance. Section 22 of the Specific Relief Act provides that notwithstanding anything to the contrary contained in the Code, the plaintiff in a suit for the specific performance of contract for the transfer of immovable property, may ask for relief of possession, or partition and separate possession, of the property, in addition to such performance, or any other relief including the refund of earnest money or deposit paid or made by him, in case his claim for specific performance is refused. Sub-section (5) of Section 21 and Sub-section (2) of Section 22 of the Specific Relief Act contain similar provisions, wherein it is provided that the claim for compensation or relief for possession etc., or refund of earnest money shall not be granted by the Court unless it has been specifically claimed in the plaint. Proviso Sub-section (5) of Section 21 and Sub-section (2) of Section 22 of the Specific Relief Act provides that if the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow the plaintiff to amend the plaintiff on such terms as may be just for including claim for such relief. The aforesaid provisions under the Specific Relief Act contain a special rule of pleading with regard to claim of additional relief in a suit for specific performance of contract. Thus, the said proviso has been added with a view to avoid multiplicity of the suits.
16. The scope of Section 22 of the Specific Relief Act was considered by the Apex Court in the case of Babu Lal v. M/s Hazari Lal Kishori Lal . There the suit was filed for specific performance of contract. There was no prayer for delivery of possession. The suit was decreed. During the execution proceeding, an objection was raised that no possession can be given in absence of additional relief in terms of Section 22(1)(a) of the Specific Relief Act. The Apex Court held that Section 22 of the Specific Relief Act enacts special rule of pleading and the same has been enacted to avoid multiplicity of the suits and it provides that the amendment can be allowed at any stage of the proceeding, including the stage of execution proceeding. In that case even though no such amendment was made but the High Court in a matter arising out of execution proceeding ordered for delivery of possession and the Apex Court held that even if there is no amendment, the decree-holder can be provided relief of delivery of possession.
17. In the case of Jagdish Singh v. Natthu Singh , the subject-matter of consideration was the scope of Section 21 of the Specific Relief Act, wherein the provision with regard to amendment of pleading is similar to Section 22 of the Specific Relief Act. The Apex Court held that the amendment for additional relief for compensation in lieu or in addition to the specific performance can be allowed at any stage of the proceeding and such amendment will fall under Section 21 of the Specific Relief Act and the approach of the Court for amendment under the aforesaid provisions should be liberal in comparison to the amendmet as permissible under the provision of Order VI, Rule 17 of the Code. In this connection, it is relevant to refer to paragraph 10 of the said judgment, which runs as follows;–
So far as the proviso to Sub-section (5) is concerned, two positions must be kept clearly distinguished. 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 relief of specific performance, the Court will allow the amendment at any stage of the proceeding. That is a claim for compensation falling under Section 21 of the “Specific Relief Act, 1963 and the amendment is one under the proviso to Sub-section (5). But different and less liberal standards apply if what is sought by the amendment is the conversion of a suit for specific performance into one for damages for breach of contract in which case Section 73of the Contract Act is invoked. This amendment is under the discipline of Rule XVII, Order 6, C.P.C. The fact that Sub-section (4), in turn, invokes Section 73 of the Contract Act for the principles of compensation does not obliterate this distinction.
18. From the fact of the said case, it appears that no amendment relating to the relief of compensation was prayed but even then the relief of compensation was granted by the High Court Court in Second Appeal. The Apex Court in order to complete the formality allowed the amendment before it to do complete justice.
19. Thus, it has to be held that if additional relief or alternative relief as provided under Sections 21 and 22 of the Specific Relief Act as claimed in a suit for specific performance of contract for transfer of immovable property, the same can be allowed at any stage of the proceeding and the approach of the Court should be liberal in allowing the amendment. However, the said amendment cannot be allowed by mere asking. As a matter of course, the Court has to consider the relevant facts governing the amendment keeping in view the liberal provisions contained in the aforesaid sections. Unless the said prayer is mala fide one, the same cannot be rejected on the ground of limitation.
20. In this case, in suit for specific performance of contract, the plaintiff has only prayed for alternative relief of refund of earnest money in case of his claim for specific performance of contract being refused. The same cannot be termed as a setting of a new facts or new cause of action, on the other hand, the prayer has been made or the basis of the same set of facts, which have been pleaded for grant of specific performance of contract. By the said amendment, the defendant will not be taken by surprise. Such amendment cannot be disallowed on the ground that such claim is barred by lapse of time.
21.lt appears that the aforesaid decisions of the Supreme Court were not brought to the notice of his Lordship in the case of Bhagwati Prasad Jallan (supra) adn as such, it was held that the provision of Section 22 of the Specific Relief Act is subject to the law of limitation. The view taken by the learned Single Judge is contrary to the law laid down by the Apex Court that the said amendment can be allowed at any stage of the proceeding.
22. Thus, the Court below, in my view, has committed jurisdictional error in refusing the prayer of the plaintiff-petitioner holding that the prayer for additional relief or alternative relief of refund of earnest money was barred by limitation.
23. In the result, this Civil Revision is allowed and the impugned order passed by the Court below is set aside.