Case: Harshwardhan & Others Vs. M/s Jai Jalaram Infrastructure Firm & Others

1. Leave granted.2. An Agreement to Sell dated 12th October, 2010 was executed between appellant No.1 and respondent Nos. 1 to 5 for the sale of certain properties. Disputes arose between the parties as a result of which a suit for specific performance was filed in the year 2014 by the appellants before us.3. In the written statement that was filed in the said suit, a mention was made of an alleged telegram that was sent by the respondents dated 1st November, 2011, referring to cancellation of the aforesaid agreement on 22nd September, 2011. As a result of this statement, the plaintiff applied to amend the plaint seeking to add that the alleged cancellation was illegal. The trial Court, after hearing both sides, passed an order by which it allowed the amendment in the aforesaid terms:"7. It is necessary to mention here that plaintiff mention in his application that to avoid any technical complication he wanted to carry out present amendment. The ruling cited Supra (Surinder..Vs Kapoorsingh) is totally applicable to case in hand. If present amendment application allowed then no prejudice will be caused to the defendants. As discussed above the question regarding limitation so far as concerned is a mixed question of law and fact. Considering this, for the purpose of determining the real question in controversies between the parties and to adjudicate the matter on merit, application deserves to be allowed. However, in my view filing of this application after framing of issues can be compensated by imposing costs on plaintiffs. Hence, I proceed to pass the following order."4. It has also stated that this was allowed subject to payment of costs of Rs. 500/-. Against this, a writ petition under Article 227 of the Constitution of India was preferred by the respondents, and by the impugned judgment dated 31st January, 2017, the judgment has set aside the trial Court order which allowed the amendment. This was done on two grounds - first, that there is nothing to show that the knowledge of the cancellation only came to the appellants in the year 2014, and second, that what is time barred cannot be allowed even by way of amendment.5. The appellants before us have argued that in point of fact, it is clear from their application to amend, that they have stated that as a result of reading the written statement, they came to know about the alleged termination and that, therefore, the High Court was not correct on ground one. Equally, on ground two, learned counsel for the appellants argued that the question of time bar would be a mixed question of law and fact and could not be gone into at this stage.6. On the other hand, learned counsel on behalf of the respondents has argued before us that the plaintiffs evidence is over and, at this belated stage, we should not, therefore, exercise our discretion under Article 136 of the Constitution of India to set aside the impugned judgment. He also added that in March, 2016, the appellants had actually chosen to amend their plaint, which amendment was allowed, and at that stage they ought to have moved the present amendment as well, and not having done so, they have missed the bus. Further, it was argued that since no substantive pleading has been added to the plaint for cancellation, merely adding a prayer would not suffice and that, therefore, the amendment should be disallowed on these grounds.7. Having heard learned counsel for the parties, we are of the view that there was nothing perverse in the order of the trial Court allowing the amendment. The High Court was not correct in interfering on the two grounds stated by it. As was correctly pointed out by learned counsel for the appellants, the application to amend the plaint clearly states that it is only after the written statement was filed that the application to amend has been made as the written statement referred to the alleged cancellation. Further, as has been held in "L.J. Leach & Co. Ltd. & Anr. v. Messrs. Jardine Skineer & Co.", AIR 1957 SC 357 and "Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil & Ors", AIR 1957 SC 363 ", the plea of time bar is not absolute to reject amendments. As was held in those judgments, time bar is one factor to be considered, and the opposite party can always be compensated in costs, if the amendment is allowed.

Decision:
1[ds]7. Having heard learned counsel for the parties, we are of the view that there was nothing perverse in the order of the trial Court allowing the amendment. The High Court was not correct in interfering on the two grounds stated by it. As was correctly pointed out by learned counsel for the appellants, the application to amend the plaint clearly states that it is only after the written statement was filed that the application to amend has been made as the written statement referred to the alleged cancellation. Further, as has been held in "L.J. Leach & Co. Ltd. & Anr. v. Messrs. Jardine Skineer & Co.", AIR 1957 SC 357  and "Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil & Ors", AIR 1957 SC 363 ", the plea of time bar is not absolute to reject amendments. As was held in those judgments, time bar is one factor to be considered, and the opposite party can always be compensated in costs, if the amendment is allowed.