1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.7936 OF 2009. Ashok S/o Bajirao Aher ... Petitioner. Versus Goverdhan S/o Mohanlalji Karwa and another ... Respondents. ... Mr.M.V.Deshpande, advocate for the petitioner. Mrs.Anjali Bajpai Dube, advocate for the Respondent No.1. ... CORAM : V.R.KINGAONKAR,J. Date : 25.01.2010. PER COURT 1. By this petition, original defendant No.1 impugns order rendered by learned Civil Judge (S.D.), Jalna, on amendment application (Exh.177) filed in Special Civil Suit No.4/2003. 2 2. It is not necessary to elaborately set out the rival pleadings. Suffice it to say that the Respondent No.1 filed suit for specific performance of agreement of sale dated 27.1.2002 in respect of 5 acres land as described in the claim clause. The suit was filed against the petitioner, being defendant No.1 and his elder brother i.e. Respondent No.2 being the defendant No.2. It is case of the Respondent No.1 (plaintiff) that the petitioner had represented him that he is exclusive owner and possessor of the land in question. It was alleged that the petitioner had represented that four (4) acres land was purchased by him from one Ganpat Kharat and one (1) acre land was purchased from Sakharam Kharat under registered sale deed. At the fag end of the trial, the Respondent No.1 (plaintiff) filed an application for amendment of the plaint with a view to introduce paragraph 11-A in the plaint along with amendment in prayer clause (4). The contention of the Respondent No.1 was that the petitioner became owner of both the parcels of the land out of S.No.40/1 and if there is some substance in his contention that there was some 3 defect in the title deed then it may be held that he had acquired title by prescription due to long standing possession which was adverse to the original owners. Further amendment was sought as regards the incorporation of alternative relief regarding entitlement of the Respondent No.1 for payment of damages/compensation on account of breach of the contract along with refund of the earnest amount. The learned Civil Judge allowed the amendment application after hearing both the sides. 3. Heard learned counsel. 4. Mr.Deshpande, would submit that the amendment could not have been allowed after evidence of the parties is closed. He seeks to rely on certain observations in "Vidyabai & others Vs. Padmalatha and another" AIR 2009 Supreme Court 1433. He contended that scope of the suit can not be expanded when the trial is practically over. He would submit that amendment application filed at belated stage should have been rejected. He would submit that unnecessary 4 amendment as incorporated in proposed para 4-B has been allowed in the prayer clause. He also would submit that there is no justification to permit the amendment as sought by the Respondent No.1. 5. So far as subject of amendment in a suit under the Specific Relief Act, 1963 is concerned, one may not refer to the provisions of Order VI Rule 17 of the C.P.C. For, proviso appended to Section 22 clearly gives discretion to the Court to allow amedment of the plaint "at any stage of the proceedings" if the plaintiff has not claimed any relief as contemplated U/s 22 (1)(a)(b). Obviously, alternative relief can be claimed at any stage, including the stage of arguments and in a proper case, even at the stage after the decision in the suit. It is pertinent to notice that Section 22 commences with non- obstante clause. It specifically gives over- riding effect to the said provision over the general provisions of the C.P.C. 6. So far as amendment shown in clause (4) 5 regarding joining of Ganpat Kharat to execute the sale deed or joining his legal representatives to execute the sale deed along with defendant No.1 (petitioner) is concerned, learned counsel for the Respondent No.1 concedes that it is superfluous and unnecessary. So also the amendment indicated in para No.4-B of the prayer clause is superfluous and unnecessary. The trial Court should not have allowed these unnecessary amendments. Though the power to amend the plaint is available with the trial Court, yet, it would not be permissible to expand the scope of the trial when the matter is at fag end and both the counsel had argued on merits. Still, however, the amendment shown in para 11-A which is to be introduced is pleadings and prayer (4-A) to be added, can not be said to be unnecessary. 7. I am of the opinion that by adding paragraph 11-A in the plaint, the Respondent No.1 desired to explain as to how the petitioner was competent to alienate the land in question and as to how he acquired title thereof. It is well settled that whatever rights and title the 6 petitioner could have are the only transferable rights and, therefore, the explanation given in para 11-A does not alter position of either party. It is only explanatory in nature. The amendment of prayer vide para 4-A seeking alternate relief of compensation and refund of earnest amount is quite permissible. The learned Civil Judge has duly exercised powers U/s 22 of the Specific Relief Act. The case law referred to by learned advocate Mr.Deshpande, is inapplicable to the present fact situation and particularly because Section 22 of the Specific Relief Act has over-riding effect over the general provisions of the C.P.C. 8. For the reasons aforestated, the petition will have to be partly allowed by deleting the unnecessary part of the amendment sought to be introduced. The amendment which is necessary, however, needs to be permitted. Consequently, the petition is partly allowed and only the portion of the amendment application shown after paragraph 11-A as B with introduction of certain sentences in prayer clause (4) and the 7 proposed amendment shown as (4-B) to the prayer clause shall be deleted and the remaining part of the amendment proposed is maintained. Needless to say, the Respondent No.1 shall be permitted to amend the pleadings by introduction of paragraph 11-A and to add paragraph 4-A of the prayer clause. The Writ Petition is accordingly disposed of. No costs. (V.R.KINGAONKAR,J.) asp/office/wp793609