JUDGMENT
A. Lala, J.
1. This is an application for amendment of the plaint under Order 6 Rule 7 of Code of Civil Procedure. The law prescribes that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
2. Originally the suit was instituted on 25the November, 1997 by the plaintiff praying inter alia :
(a) Mandatory injunction directing the defendants to handover vacant possession of the suit premises more fully mentioned in schedule ‘A’ to the pliant and to sign and sign the building plans for construction of the said building and to execute the power of attorney in favour of a nominee of the plaintiff pursuant to agreement dated 3rd December, 1986 as modified,
(b) Mandatory injunction directing the defendants to execute and register necessary conveyance in favour of the allottees nominated by the plaintiff in respect of the plaintiffs allocation in the building to be constructed.
(c) Declaration that the suit property charged in respect of the earnest money/initial deposit paid by the plaintiff.
(d) Perpetual injunction restraining the defendants from transferring encumbering parting with possession creating any third party right or dealing with or disposing of the suit premises more fully mentioned in schedule ‘A’ to the plaint in any manner whatsoever.
(e) Attachment.
(f) Receiver.
(g) Injunction.
(h) Costs.
(i) Such further and/or other reliefs.
3. The amendment was sought to be made by making this application on 20th November, 2001 to incorporate prayer (a) therein as follows :-
(a) A decree for specific performance of the agreement dated 3rd December, 1986 as modified on 27th December, 1994.
Consequently all other prayers made above are marked (b) to( j).
4. The primary relief was previously sought for on the basis of an agreement executed against the parties on 3rd December, 1986. In original plaint, a copy of the letter dated 27th December, 1994 was also annexed. Excepting in the paragraph 20 of the original plaint to the extent “such acceptance is contained on an evidenced by a letter dated 27th December, 1994, a copy whereof is annexed hereto an marked ‘D’ no pleading is made anywhere therein.
5. Therefore, in total it appears that original agreement purported to have been executed on 3rd December, 1986. The letter purported to have been written on 27th December, 1994. The suit was instituted on 25th November, 1997. The proposed amendment is sought for on 20th November, 2001.
6. The suit was originally placed under the heading ‘undefended suit’ on numerous occasions. The plaintiff was very much eager to have the suit heard as expeditiously as possible which was opposed by numerous parties raising their claims against the defendant company i.e. a non-banking financial company. Those were not connected with the suit, therefore, having heard those applications were directed to be dismissed.
7. However, this defendant contended before the Court that due to Court litigation about the defendant company i.e. non-banking financial company. Special Oficers were appointed time to time by this High Court over and in respect of the assets and properties of the defendant company. The present Special Oficer is replaced by the Supreme Court of India. Therefore, unless he is heard the defendant company will be unrepresentative. Upon hearing his submission this Court was pleased to allow him to file his written statement on behalf of the defendant. The written statement was filed. The defendant took the point that the suit is barred by the law of limitation. Possibly for the first time it struck the mind of the plaintiff with an able legal advice and the present application appears to be net outcome of the same.
8. Following two points are relevant for the purpose of consideration :
(a) whether the suit is likely to be hit by law of limitation?
(b) whether the plaintiff wants to change the cause of action by such proposed amendment?
9. As per Article 54 of the Limitation Act, 1963, a period of 3 years is fixed for limitation from the date fixed for the performance or if no such date is fixed when the plaintiff has noticed that performance is refused. So far this particular case is concerned 3 years period was expired from the date of expiry of the period of completion of the work for 6 months from the date of execution of the contract long back sometimes in 1990. Therefore, after expiry of the period of limitation, the same cannot survive by a purported letter of the year, 1994.
10. Secondly, the proposed amendment has two parts. In paragraph 20A of the proposed amended plaint it is pleaded that the agreement stood modified by the letter dated 27th December, 1994. But in paragraph 28 of the proposed amended plaint the words ‘is deemed to have been’ introduced in the place and instead of the word ‘was’ before the word ‘refused’. Therefore, the proposal is misconceived. Previously the word “……was refused” were incorporated in the original plaint to get an extended period to sue the defendant. But by deleting the word ‘was’ and incorporating the words ‘stood modified’ or ‘is deemed to have been refused’, the plaintiff not only taken a self contradictory stand but also set up a new cause of action.
11. The defendant, by the pen of the Special Oficer, in the written statement stated that no cause of action can arise on 27th December, 1994 since the defendant company was under the supervision of the Special Oficer appointed by the Court. Therefore, there cannot be any existence of the Board of Directors, either in law or in fact at the material point of time.
12. Therefore, if today the Court allows the existence of such document by amendment the same will get face value before passing a decree. The plaintiff originally pleaded that the defendant for the first time refused performance on 27th December, 1994 which gives cause of action. Therefore, Court has to consider whether the letter is at all refusal? Whether such refusal can build up cause of action? Whether such refusal can save the limitation? Whether the plaintiff can get relief in merit out of such letter? The defendant disputed the very existence of the letter that too by the Special Oficer appointed by the Court. However, by the proposed amendment, the plaintiff wanted to introduce concept of variation of the original agreement by the defendant by incorporating the words ‘stood modified’. If it is allowed the original agreement will get new life and passing of decree in future would be mere formality. In judgment reported in AIR 1997 Cal 189 (Kanailal Das and Anr. v. Jibon Kanai Das and Anr.) a Division Bench of this Court gave five conditions for the purpose of refusal of an order of amendment as follows :
(i) All amendments will be generally permissible when they are necessary for determination of the real controversy in the suit;
(ii) All the same, substitution of one cause of action or the nature of the claim for another in the original plaint or change of the subject-matter of or controversy in the suit is not permissible;
(iii) Introduction by amendment of inconsistent or contradictory allegations in negation of the admitted position on facts, or mutually destructive allegations of facts are also impermissible though inconsistent pleas on the admitted position can be introduced by way of amendment;
(iv) In general, the amendments should not cause prejudice to the other side which cannot be compensated in costs;
(v) Amendment of a claim or relief which is barred by limitation when the amendment is sought to be made should not be allowed to defeat a legal right accrued except when such consideration is outweighed by the special circumstances of the case;
13. An English judgment was sought to be referred by the learned senior counsel appears for the plaintiff reported in 1971(2) All ER 277 (Dowty Boulton Paul Ltd. v. Wolverhamption Corporation) to establish that there is no difference between an order for the specific performance of the contract and a mandatory injunction to perform the parties’ obligation under contract. Therefore, in a suit for mandatory injunction if a prayer for specific performance is made the same cannot alter the position of the suit which has been brought before amendment.
14. According to me, it is correct to say that under normal circumstances there is no basic difference between a suit for mandatory injunction and a suit for specific performance. Normally, when one is restrictive and other is directive. But in the present case in addition to the mandatory injunction a decree for specific performance is sought for in respect of the agreement dated 3rd December, 1986 proposing as modified on 27th December, 1994. This is a new cause of action of variation of agreement. If the aforesaid underlying part is allowed to be amended the main relief in the suit is also treated to be allowed by the Court. This is because a right accrued by the defendant will be destroyed by such incorporation. Therefore, the principle laid down in the judgment as applicable in normal circumstances cannot be said to be applicable in the factual matris. Thus, I do not find any reason to accept such analogy.
15. So far the law of specific performance is concerned it cannot be governed by the generalised scheme if a specific defence is taken by the defendant. Law of specific performance includes various types of reliefs. It may be specific relief. It may be declaratory relief. It may be injunctory relief. Even it may be compensatory relief. In our country, most of the reliefs are governed lay the Specific Relief Act, 1963 but that done not necessarily mean a specific relief which was not before amendment will be allowed as a primary relief even destroying the defence of the defendant.
16. Hence, taking into totality of the matter I cannot convince myself to allow prayer of amendment of the plaint. Therefore, the application stands dismissed. However, no order is passed as to costs. Prayer for stay is made, considered and refused.
Xeroxed certified copies of this judgment will be supplied to the parties within seven days from the date of putting requisites for drawing up and completion of the order and certified copy of this judgment.
All parties are to act on a signed copy minute of the operative part of this judgment on the usual undertaking and subject to satisfaction of the Oficer of the Court in respect as above.