- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION No. 1478 OF 2007 Bansilal Bacharaj Lodha & Ors. ... Petitioners Vs. Datta Dyeing House & Ors. ... Respondents *** Mr. R. D. Soni i/b M/s. Ram & Co., for the Petitioners. Mr. G. S. Godbole and P. M. Arjunwadkar, for Respondents Nos. 1B to 1E & 2. *** CORAM : A. S. OKA, J. DATE : JULY 31, 2009. PC :- 1. The submissions of the counsel for both the parties were heard on the earlier date. The petitioners by filing this writ petition under Article 227 of the Constitution of India have taken exception to the judgment and order dated 3rd October 2006 passed below Exhibit 63 in Civil Appeal No. 425 of 1993. The petitioners are the original defendants and the respondents are original plaintiffs. Briefly stated, the respondents filed a suit claiming specific performance of agreement of sale dated 20th April 1964 and in the alternative prayed for refund of earnest money of Rs.3,000/- with interest. The suit was contested and a decree was passed in favour of the respondents directing the petitioners to - 2 - execute the sale-deed. An appeal was preferred by the petitioners. There were further proceedings which came up to this Court. In the said appeal there was an order of remand passed by the District Court directing the trial Court to hear the suit afresh after permitting the permitting the petitioner to carry out amendment to the written-statement. The said order was challenged by the respondents by filing a revision in this Court. The order of remand was confirmed by this Court. For various reasons the matter was dragged on further. Ultimately in 1993 the learned trial Judge after recording evidence, dismissed the suit filed by the respondents. An appeal was preferred by the respondents before the District Court. In the appeal, an application was made by the respondents for amendment of the plaint for incorporating a prayer in the alternative of a decree for damages. By the impugned order, the said application was allowed by the District Court. 2. The learned counsel appearing for the petitioners has taken me to the application for amendment. He has submitted that the application was allowed without hearing the petitioners or their advocates by passing a cryptic order. However, it must be stated that the learned counsel appearing for the petitioners has made detailed submissions on merits of the amendment application. He pointed out that the original suit was filed in the year 1967 and the application for amendment was moved almost after lapse of 40 years. He submitted that the claim for damages was clearly barred by limitation and therefore, there was no question of allowing amendment. He pointed out that after order of remand was passed, - 3 - parties were permitted to adduce evidence and even at that stage the present amendment was not moved. He pointed out that the balance consideration deposited by the respondents has already been withdrawn by the them which shows that they were not interested in prosecuting the suit. His submission is that a prejudice has been caused to the petitioners by allowing time barred amendment. 3. The learned counsel appearing for the respondents invited my attention to the provisions of section 21 of the Specific Relief Act, 1963. He submitted that under the proviso to sub- section (5) of section 21, if the plaintiff in a suit for specific performance has not claimed any compensation in terms of sub- section (1) of section 21, at any stage of the proceedings, the Court is duty bound to allow the plaintiff to amend the plaint for including a claim for compensation. He submitted that the appeal being a continuation of the suit, proviso to sub-section (5) of section 21 was applicable and even the appellate Court was duty bound to allow the amendment. He submitted that in view of the express language used by section 21, bar of limitation will not come in the picture while allowing such amendment covered by the provisio to sub-section (5) of section 21 of said Act of 1963. He has invited my attention to the decision of the Apex Court in the case of Jagdish Singh Vs. Natthu Singh [AIR 1992 Supreme Court 1604]. He submitted that no interference was called for in writ jurisdiction. 4. I have carefully considered the submissions. It will be - 4 - necessary to refer to decision in the case of Manohar Dhundiraj Joshi Vs. Zunnulal Hariram Yadao & Ors. [1983 Mh.L.J. 369]. This Court had an occasion to consider the provisio to sub-section (5) of Section 21 and sub-section (2) of Section 22 of the said Act of 1963. This Court considered whether the proviso was mandatory or directory. This Court held that proviso does not merely confer discretionary power on the Court to allow the amendment but makes it obligatory on Courts to permit amendments which come within the purview of the proviso. This Court held that the Legislature did not intend merely to confer discretionary power on the Court to permit a plaintiff to amend his pleading to introduce these two reliefs at any stage of proceeding but intended to make it obligatory and imperative on the Court to allow such amendment. This Court held that such amendment cannot be rejected on the ground that there was an inordinate delay or that the claim is barred by limitation on the date on which the application for amendment was made. 5. The learned counsel appearing for the respondents has placed reliance on the decision of the Supreme Court in the case of Jagdish Singh (supra) wherein the Apex Court after considering object of section of 21 of the Act of 1963 held that if the amendment relates to the relief of compensation in lieu of or in addition to specific performance in a case where the plaintiff has not abandoned his claim for specific performance, the Court will allow the amendment at any stage of the proceedings. The Apex Court made a distinction between an amendment sought for - 5 - incorporating a claim for compensation under section 21 of the Act of 1963 and an amendment sought for converting a suit for specific performance into one for damages for breach of contract. The Apex Court held that only in the second case the amendment will be governed by Rule 17 of Order VI of the Code of Civil Procedure 1908. 6. In the present case the amendment was covered by section 21 of the said Act of 1963 in as much as the prayer was for incorporating the relief of compensation in the alternative to the claim for specific performance. In view of the mandate of law, the submission made by the counsel appearing for the petitioner on the ground of delay and bar of limitation cannot be considered and the same has no merit. As far as conduct of the respondents of withdrawing the consideration amount is concerned, the same will have to be independently considered when the appeal is decided on merits and withdrawal of the amount is no ground to defeat right created in favour of the respondents/plaintiffs by the statute. In view of this position, the learned District Judge was right in allowing amendment. 7. In the circumstances, it is not possible to find fault with the impugned order and as such no interference with the same is called for in exercise of jurisdiction under Article 227 of the Constitution of India. However, it will be necessary to allow the petitioners to file the additional written statement to the amended plaint and for that purpose reasonable time deserves to be granted. Hence, I pass following order. - 6 - ORDER (i) The petition is rejected. (ii) However, it will be open for the petitioners to file an additional written-statement for dealing with the amended plaint. The additional written-statement shall be filed within a period of six weeks from the date on which writ of this order is received by the appellate Court. (iii) Hearing of the appeal is expedited. [ A. S. OKA, J.]