IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.12.2007 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN C.R.P.(NPD).No.3024 of 2007 and M.P.No.1 of 2007 S.Jaffar Ali .. Petitioner Versus 1.Sheik Dasthagir 2.Mumtaj .. Respondents Prayer:-This revision petition has been preferred under Article 227 of the Constitution of India against the order 25.4.2007 in I.A.No.79 of 2007 in A.S.No.90 of 2006 on the file of the Principal District Judge, Erode. For Petitioner : Mr.S.Muhunthan, Advocate For Respondents : Mr.R.T.Duraisamy, Advocate ORDER
The respondent/defendant in I.A.No.79 of 2007 in A.S.No.90 of 2006 before the Principal District Judge, Erode, is the revision petitioner herein. The said application was filed under Order VI Rule 17 of CPC by the plaintiff/appellant in A.S.No.90 of 2006 to amend the plaint. The learned First Appellate Judge has dismissed the petition, which necessitated the petitioner in I.A.NO.79 of 2007 to prefer this revision. The petitioner has filed O.S.No.86 of 2002 before the learned Subordinate Judge, Gobichetipalayam, for specific performance of a contract under the deed of agreement of sale dated 10.7.2001. On contest, the learned Trial Judge had dismissed the suit. Aggrieved by the findings of the learned trial Judge, the plaintiff preferred A.S.No.90 of 2006 before the Prinipal District Judge, Erode. Pending appeal, the plaintiff filed I.A.No.79 of 2007 under Order VI Rule 17 CPC to amend the plaint in order to incorporate the prayer for refund of the advance amount paid under the agreement of sale dated 10.7.2001.
2.The learned counsel for the revision petitioner relying on Section 22(b) of the Specific Relief Act, 1963, would contend that the plaintiff is entitled to the relief of refund of the earnest money or deposit paid under the agreement of sale incase his claim for specific performance is refused.
3(a)The learned counsel for the respondents relying on the following ratio decidendi would contend that since the claim for refund of the advance amount has already been barred by limitation such a relief under Order VI Rule 17 CPC cannot be granted. It is pertinent to note here that while dismissing I.A.No.79 of 2007 the learned first appellate Judge has not given a findings that the claim is barred by limitation even though there is a plea in the counter filed by the respondent. The first ratio on which reliance is placed by the learned counsel for the respondents is 2001(4) CTC 174 (Tamil Nadu Electricity Board, Anna Salai, Chennai-2, rep by its Chairman and another Vs. The Tamil Nadu Alloy Foundry Co.Ltd., Plots No.21 and 33, SIPCOT Complex, Hosur and 3 others), wherein it has been held that application for amendment filed in July 1998 to substitute figure of Rs.1295.81 lakhs in the place of Rs.10 lakhs cannot be allowed since the claim is barred by limitation. The facts of the said case in brief are that:
“the appellant as the plaintiff in the suit filed an application to amend the plaint to substitute the figure of Rs.1295.81 lakhs in the place of Rs.10 lakhs as the amount of damages claimed. The said application was filed in July 1998 though the suit had been filed five years earlier in March 1993”.
Under such circumstances, a Division Bench of this Court has held that the application for amendment cannot be filed beyond the period of limitation.
3(b)The next citation relied on by the learned counsel appearing for the respondent is 2005(4) CTC 734 (S.Kuppusamy Vs. P.K.Subramani & Others). The facts of the said case in brief are that:-
“The plaintiffs along with their mother Kuppammal filed the suit for permanent injunction against the defendant/revision petitioner. The plaintiffs filed I.A.No.664 of 2003 to amend the plaint in O.S.No.206 of 1987”
The trial Court allowed the said application placing reliance on the decision in 2004(2) MLJ 411 (Sarammal Vs. S.Kilshad Begum and others), wherein it has been held that the amendment can be ordered if no new case is set up in the amendment. Relying on the decision in K.Raheja Constructions Ltd., Vs. Alliance Ministries and others, 1995 TNLJ 77 SC, wherein it has been held that:- ‘having allowed the period of seven years elapsed from the date of filing of the suit, and the period of limitation being three years under Article 54 of the schedule to the Limitation Act, 1963, any amendment on the grounds set out, would defeat the valuable right of limitation accrued to the respondent’.
In support of his contention the learned counsel for the respondent would rely on 1997(2) LW 406 (Tarlok Singh Vs. Vijay Kumar Sabharwal), wherein it has been held that the limitation for seeking specific performance by amendment of plaint when initially it was filed for injunction cannot be allowed since the same is barred by limitation. There cannot be two opinion with regard to the findings in the ratio decidendi submitted by the learned counsel for the respondents. But the point to be decided is whether the petition to amend the plaint is in consonance with the provision contemplated under section 22(b) of the Specific Relief Act can be entertained or not.
4.The learned counsel for the revision petitioner would contend that the relief under Section 22 of the Specific Relief Act can be given even at the execution stage. In support of this contention, the learned counsel for the revision petitioner would rely on AIR 1982 SC 818 (Babu lal Vs. M/s.Hazari Lal Kishori Lal and others). The facts of the said case in brief are as follows:-
“Respondents 6 to 9 entered into an agreement with respondents 1 to 5 for sale of certain plots of land. Some amount was paid as earnest money. The sale deed was agreed to be executed within fifteen days of the agreement. Respondents 6 to 9 however, executed a sale deed in favour of petitioner in respect of the same property in defiance of the earlier agreement with respondents 1 to 5. The respondents 1 to 5 filed a suit for specific performance of contract. The trial Court dismissed the suit but on appeal the additional District Judge decreed the suit. In Second Appeal the High Court confirmed the judgment and decree of the first appellate Court with a slight modification inasmuch as the Hihg Court directed the petitioner and respondents Nos.6 to 9 to execute the sale deed in favour of the respondents Nos.1 to 5. The decree-holder applied for execution of decree. There was an application filed under Section 47 CPC. Ultimately, the High Court modified the order of the Courts below to the effect that the decree-holders shall be entitled to possession also. The special leave was sought on the ground that the High Court could not grant relief in execution application in excess of and outside the framework of the prayer by the plaintiff in the original suit. The second limb of argument was that the High Court acted in flagrant violation of the provisions of Section 22 of the Specific Relief Act in granting the relief of possession.
It was held that the High Court was right in granting relief and there was no fault with the High Court judgment and consequently the special leave could not be granted. The relevant observation in the above said ratio decidendi relevant for the purpose of deciding this Civil Revision Petition runs as follows:-
“The section enacts that a person in a suit for specific performance of a contract for the transfer of immovable property, may ask for possession, or for partition or for separate possession including he relief for specific performance. This reliefs he can claim, notwithstanding anything contained in the Code of Civil Procedure, 1908, to the contrary. Sub-section (2) of this section, however, specifically provides tht these reliefs cannot be granted by the Court, unless they have been expressly claimed by the plaintiff in the suit. Sub-section (2) of the section recognised in clear terms the well-established rule of procedure that the Court should not entertain a claim of the plaintiff unless it has been specifically pleaded by the plaintiff and proved by him to be legally entitled to. The provisio to this sub-section (20, however, says that where the plaintiff has not specifically claimed these reliefs in his plaint, in the initial stages of the suit, the Court shall permit the plaintiff at any stage of the proceedings, to include one or more of the reliefs, mentioned above by means of an amendment of the plaint on such terms as it may deem proper.
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Besides, the proviso to sub-section (2) of Section 22 provides for amendment of the plaint on such terms as may be just for including a claim for such relief ‘at any stage of the proceedings’. The word ‘proceeding’ is not defined in the Act. Shorter Oxford Dictionary defines it as “carrying on of an action at law, a legal action or process; any act done by authority of a Court of law; any step taken in a cause by either party”. The term ‘proceedings’ is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but once the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which judicial business is conducted. The word ‘proceeding’ in Section 22 includes execution proceedings also. In Rameshwar Nath Vs. Uttar Pradesh Union Bank Ltd., AIR 1956 All 586, such a view was taken. It is a term giving the widest freedom to a Court of law so that it may do justice to the parties in the case. Execution is a stage in the legal proceedings. It is a step in the judicial process. It marks a stage in litigation. It is a step in the ladder. IN the journey of litigation there are various stages. One of them is execution.
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It is thus clear that the Legislature has given ample power to the Court to allow amendment of the plaint at any stage, including the execution proceedings. In the instant case the High court granted the relief of possession and the objection raised on behalf of the petitioner is that this was not possible at the execution stage and in any case the Court should have allowed first an amendment in the plaint and then an opportunity should have been afforded to the petitioner to file an objection.
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There has been a protracted litigation and it has dragged on practically for about 13 years and it will be really a travesty of justice to ask the decree-holders to file a separate suit for possession. The objection of the petitioner is hyper-technical. The execution court has every jurisdiction to allow the amendment.
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Procedure is meant to advance the cause of justice and not to retard it.”
The same view has been reiterated by this Court in 2001(3) MLJ 322 (Viswanathan Vs. Ramakrishna Chettiar). The relevant observation in the said dictum runs as follows:-
“the plaintiff has not prayed for any other relief including the refund of amount received by the defendant. In such a circumstance, in the absence of specific claim in the plaint, as per Sub-Section (2) of Section 22 of the Act, refund of the amount already paid cannot be granted. However, proviso to Sub-Section (2) of Section 22 of the Act enables the aggrieved person to file appropriate petition for amendment of the plaint at any stage of the proceedings. Only on the above said provision, the respondent in the appeal has filed CMP.No.10995 of 2001 for amendment of the plaint in O.s.No.39 of 1983 on the file of the First Additional Subordinate Judge, Pondichery for return of the sum of Rs.60,000.00 to him with interest at 12% per annum from the date of plaint till realisation.
Since the Court below has rejected the relief of decree for specific performane and in view of Exs.A.1 and A2 the defendant having received a sum of Rs.60,000.00, he is bound to return the same. Though the Court below has granted the relief of refund of the amount of Rs.60,000.00 paid, even without specific claim by the plaintiff, in view of proviso to Sub-sec (2) of Sec.22 of the Act, this Court has ample power to permit the respondent herein to amend the plaint. It is worthwhile to refer the decision of the Supreme Court in the case of Babu Lal Vs. M/s.Hazari Lal Kishori Lal, AIR 1982 SC 818, wherein while considering Secs.21,22 of the Specific Relief Act, their Lordhsips have held that, proviso to Sub-Sec(2) of Sec.22, where the plaintiff has not specifically claimed the appropriate relief apart from the decree for specific performance in his plaint in the initial stages of the suit, it would be open to him to seek for amendment of the plaint at any stage of the proceedings. The purpose of this newly enacted provision is to avoid multiplicity of suits and that the plaintiff may get appropriate relief without being hampered by procedural complications.”
I am of the view that the above said ratios AIR 1982 SC 818 (Babu lal Vs. M/s.Hazari Lal Kishori Lal and others) and 2001(3) MLJ 322 (Viswanathan Vs. Ramakrishna Chettiar) relied on by the learned counsel for the revision petitioner will squarely be applicable to the present facts of the case.
5.In fine, the Civil Revision Petition is allowed and the order in I.A.No.79 of 2007 in A.S.No.90 of 2006 on the file of the Principal District Judge, Erode, is set aside and I.A.No.79 of 2007 in A.S.No.90 of 2006 is allowed. The learned First Appellate Judge shall give an opportunity to the petitioner in I.A.No.79 of 2007 to amend the plaint, and thereafter giving an opportunity to the respondent to file additional written statement and after framing the relevant issue and after giving opportunities to both the parties to let in further evidence as contemplated under Order 41 Rule 28 CPC, decide the appeal on merit in accordance with law. The learned First Appellate Judge is directed to dispose of the appeal within two months from the date of receipt of copy of this order. No costs. Connected Miscellaneous Petition is closed.
07.12.2007
Index:Yes/No
Internet:Yes/No
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To,
The Principal District Judge, Erode.
A.C.ARUMUGAPERUMAL ADITYAN, J.
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C.R.P.(NPD).No.3024 of 2007
07.12.2007