IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRDESH:: HYDERABAD THURSDAY, THE TENTH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.4192 OF 2010 Between: Nudurupati Lakshmana Rao and another …Petitioners A n d Kalisetty Sitaramulu ..Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.4192 OF 2010 ORDER: This civil revision petition is directed against the order dated 30.08.2010 in I.A.No.582 of 2010 in O.S.No.110 of 2006, on the file of the IV-Additional District Judge, Visakhapatnam, wherein the said application filed by the respondent herein under Order VI Rule 17 CPC, seeking amendment of the plaint, was allowed. 2. Heard the learned counsel for the petitioners and the learned counsel for the respondent. Perused the record. 3. The respondent herein filed the suit against the petitioners for specific performance of suit agreement of sale dated 11.05.2005 and in the alternative for recovery of a sum of Rs.2 lakhs with interest. The petitioners herein, the defendants, filed a written statement contesting the suit. After necessary issues were settled, the trial of the suit was commenced. During the course of trial, the plaintiff filed I.A.No.582 of 2010 for amendment of the plaint schedule and also seeking amendment of prayer portion in para VI by adding the relief of recovery of damages in a sum of Rs.8,15,000/-. The plaintiff prayed for certain consequential amendments by adding para III (f) in the body of the plaint. It is curious to note that the proposed amendment of the body of the plaint is shown as consequential amendment and amendment of plaint schedule and relief paragraph in the plaint are shown as main amendments. The respondents filed a counter opposing the petition, both on merits and also on the ground that it is highly belated and in view of proviso to Order VI Rule 17 CPC, as amended in 2002, the application for amendment cannot be entertained after commencement of trial. By the impugned order dated 30.08.2010, the trial Court allowed the said application. Hence, the present revision by the defendants. 4. In the original plaint, which is filed for specific performance of suit agreement, the property subject matter of the suit is mentioned as 182 sq. yards in Sy.No.690, Block No.25 situate in Srinagar, Visakhapatnam in which there is a construction to an extent of 40 sq. yards in the first floor with boundaries. The above site is stated to be measuring east and west 34” and south and north 48”. According to the plaintiff, the defendants who are the absolute owners of the above property agreed to sell the same to the plaintiff for a consideration of Rs.12,50,000/- and entered into an agreement of sale dated 11.05.2005 and defendants also received Rs.2 lakhs as an advance and agreed to receive the balance at the time of registration and the time fixed for performance was three months. The plaintiff alleges that in spite of being ready and willing to perform his part of the contract, the defendants were postponing the same on some pretext of the other. Alleging that the defendants were intending to sell the property to third parties at higher rate, plaintiff filed the suit after issuing legal notice, which was returned as unserved. The plaintiff, therefore, sought specific performance of the plaint schedule property as stated above in the original plaint schedule and in the alternative for recovery of Rs.2 lakhs. 5. By way of the proposed amendment, the plaintiff seeks to change the plaint schedule by mentioning a reduced extent of 27.50 sq. yards being undivided and unspecified proportionate share out of 1811 / 3 sq. yards with one flat bearing No. FF 1 facing the road having a plinth of 800 sq. feet in the first floor in the place of 182 sq. yards with constructed portion of 40 sq.yards thereon as mentioned in the original schedule. The plaintiff also sought to amend the boundaries as follows: East: Flat No.FF 2, South: Set back, West: Municipal road North: Set back. 6. According to the plaintiff, D-1 has alienated an extent of 28 sq. yards of undivided share together with a flat of 750 sq. feet of plinth area in favour of Nekkanti Satya Murthy under registered agreement of sale-cum-GPA dated 07.01.2006 for Rs.7,50,000/- and there has been exchange of notices between plaintiff and the said N.Satya Murthy and family. To avoid litigation, the same was purchased by K.Srinivasa Rao, son of the plaintiff, under a registered sale deed dated 02.03.2006 for Rs.8,15,000/- and, therefore, the remaining flat bearing No.FF 1 on the western site facing the road with plinth area of 800 sq. feet and a site of 27.50 sq. yards of undivided share out of 1811/3 sq. yards remains as subject matter of the suit. The plaintiff, therefore, sought amendment of the plaint schedule by confining the suit to the said extent of 27.50 sq. yards out of 181 sq.yards with flat No.FF 1 on the western side. Alleging that on account of sale of the eastern side flat by D-1 in favour of N.Satya Murthy necessitated the plaintiff’s son to purchase the same from the said Satya Murthy at a cost of Rs.8,15,000/-, the plaintiff seeks recovery of the said amount of Rs.8,15,000/- also by way of damages. 7. The learned counsel for the respondent/plaintiff would contend that as the plaintiff is now confining his relief of specific performance to reduced extent and only a portion of the original plaint schedule property, no prejudice would be caused to the defendants if the plaint is permitted to be amended. It is to be noted that it is not a case of mere restriction of the relief to a portion of the entire property originally mentioned in the plaint schedule, but is a case where such restriction is coupled with the relief of recovery of Rs.8,15,000/- by way of damages on the ground that D-1 has sold the remaining property to Satya Murthy for Rs.7,50,000/- and the same had to be re-purchased by plaintiff’s son from Satya Murthy spending Rs.8,15,000/-. The proposed amended reliefs when read together would clearly show that the nature and character of the suit would certainly undergo vital change, if the amendment is permitted. It is not a case where while confining the relief to a portion of the suit property, as mentioned originally in the plaint schedule, the claim in respect of the remaining portion is given up. The said claim in respect of the remaining portion is sought in a different form by way of recovery of damages in a sum of Rs.8,15,000/-. When the said remaining property is said to have been purchased from Satya Murthy by K.Srinivas Rao, who is son of the plaintiff, it is not known how the said transaction would afford a cause of action for the plaintiff to recover the amount of Rs.8,15,000/-. The plaintiff’s son Srinivasa Rao is not a party to the suit. The plaintiff cannot have any cause of action for recovery of the said amount, which is said to have been filed by his son K.Srinivasa Rao. Further, it is not as though the said transaction between K.Srinivasa Rao and Satya Murthy is an event which took place subsequent to filing of the suit. Even as per the averments in the proposed amendments, the registered agreement of sale-cum-GPA between D-1 and Satya Murthy was executed on 07.01.2006 and Satya Murthy in turn executed a sale deed in favour of plaintiff’s son Srinivasa Rao on 02.03.2006. The suit was filed subsequently in April, 2006. Thus, even by the date of filing of the suit, the plaintiff was aware of the above transactions as his son himself was a party to the same. When that is so, there is absolutely no reason as to why the plaintiff has not chosen to plead the proposed releifs in the original plaint itself. The proposed amendment shows that there was exchange of notices also between plaintiff and Satya Murthy before execution of the sale deed dated 02.03.2006 by Satya Murthy in favour of plaintiff’s son K.Srinivasa Rao. Though the dates of the said notices have not been disclosed, the fact remains that the plaintiff was very much aware of the execution of the registered agreement of sale-cum-GPA dated 07.01.2006 by D-1 in favour of Satya Murthy and the registered sale deed dated 02.03.2006 executed by Satya Murthy in favour of plaintiff’s son Srinivasa Rao even by the date of filing of the suit. The failure of the plaintiff to refer to any of those transactions in the original plaint is no where explained and the suit for specific performance is filed in respect of the entire extent of 182 sq. yards as if the same is in tact. 8. The present application for amendment is filed about 3½ years after filing of the suit and during the course of recording of evidence. In VIDYABAI & OTHERS V. PADMALATHA[1]’, the Apex Court held as follows: “…By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under: "Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.” 9. The above decision makes reference to the decision in N.PANDEY V. SWAMI KESHAVPRAKESHDASJI[2]’ and it was further held as follows: “…However, proviso appended to Order VI Rule 17 of the Code restricts the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court’s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.” 10. In view of the principles laid down in the above decision, unless the party is able to establish that in spite of due diligence he could not have raised the matter before the commencement of trial, the Court would not have jurisdiction to permit such amendment, in view of the proviso. In the present case, the evidence of P.W.1 is also recorded. 11. The proviso to Order VI Rule 17 CPC contains a bar against entertaining an application for amendment after commencement of trial, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In the present case, the affidavit filed in support of the application does not disclose any reasons as to why the plaintiff could not raise the proposed amendments earlier prior to commencement of trial and there is also no finding recorded by the trial Court that in spite of due diligence, the plaintiff could not have raised the said pleas earlier. 12. The learned counsel for the petitioner relies upon a Division Bench judgment of the Allahabad High Court in DEVENDRA MOHAN V. STATE OF U.P[3], wherein it was held as follows: ”Thus, in view of the above, the law can be summarized that amendments should be allowed if an application is moved at a pre-trial stage, and even at a later stage if the party wants to introduce the facts in respect of the subsequent development as it would be necessary to avoid the multiplicity of the proceedings. The amendment is not permissible if the very basic structure of the plaint is changed or the amendment itself is not bona fide. In the case the facts were in the knowledge of the party at the time of presenting the pleadings, unless satisfactory explanation is furnished for not introducing those pleading at the initial stage, the amendment should not be allowed. Amendment should also not be permitted where it withdraws the admission of the party or the amendment sought is not necessary to determine the real controversy involved in the case. “ In the present case also, the proposed amendment would not only alter the nature of the suit by introducing new facts and a new cause of action different from the one originally pleaded, but also there is no explanation furnished by the plaintiff for not raising the said pleas in the initial stage, though he had knowledge of the same. 13. I n SALEM ADVOCATE BAR ASSOCIATION, TAMILNADU V.UNION OF INDIA[4], the Apex Court held thus: “The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if the application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision.” 14. In view of the principles laid down in the above decisions, as the material on record does not establish that in spite of due diligence the plaintiff could not have raised the proposed pleas earlier and, on the other hand, it is shown that the plaintiff was aware of the facts pleaded in the proposed amendment even by the date of filing the suit, but failed to plead the same in the original plaint which only shows his utter lack of diligence, the trial Court will not have any jurisdiction even to entertain any application for amendment in view of the decision in Vidyabai’s case (1 supra). 15. The learned counsel for the respondents would contend that under Section 21 of the Specific Relief Act, in a suit for specific performance, the claim for damages can be sought at any stage of the suit and the proviso contained in Order VI Rule 17 CPC, which is a general law, cannot supercede, the provisions of Section 21 of the Specific Relief Act which is a special law. In that connection, he relied upon a decision of the Apex Court in R.S.RAGHUNATH V. STATE OF KARNATAKA AND ANOTHER[5]. He also relied upon a decision in REVAJEETU BUILDERS AND DEVELOPERS V. NARAYANASWAMY AND SONS AND OTHERS[6] wherein certain basic principles which ought to be taken into consideration while allowing or rejecting the application for amendment are stated thus: “(i) Whether the amendment sought is imperative for proper and effective adjudication of the case; (ii) whether the application for amendment is bona fide or mala fide; (iii) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (iv) refusing amendment would in fact lead to injustice or lead to multiple litigation; (v) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (vi) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. The fact that the claim is barred by the law of limitation is but one of the factors to be taken into account by the court in exercising the discretion as to whether the amendment should be allowed or refused, but it does not affect the power of the court if the amendment is required in the interests of justice.” 16. The principles laid down in the above decisions are not disputed. But, however, in the present case, the claim for damages in a sum of Rs.8,15,000/- is not based on the original cause of action as stated in the plaint nor is relatable to the original agreement of sale in respect of which the suit is filed. Insofar as the said agreement is concerned, the plaintiff has prayed for return of the advance amount of Rs.2 laks by way of alternative relief in the original plaint itself. The present claim for recovery of damages in a sum of Rs.8,15,000/- in the proposed amendment is relatable to the transaction of sale dated 02.03.2006 between Satya Murthy and K.Srinivasa Rao to which the plaintiff was not a party. Apart from the fact that the plaintiff has no cause of action in respect of the said transaction and to claim any relief flowing there from, the said claim is also barred by limitation by the date of filing the application for amendment, which was filed on 14.06.2010. It is, therefore, not a case of claiming damages pursuant to the agreement of sale in respect of which the suit for specific performance was originally filed and, therefore, Section 21 of the Specific Relief Act has no application and, therefore, the said section is not attracted. Consequently, the decision in 1984 ALT 134 cited by the learned counsel for the respondents wherein this Court held that in a suit for specific performance filed by the plaintiff subsequently for amendment of the plaint to include the relief of damages by virtue of Section 21(5), has no application. 1 7 . It is well established that if the proposed amendment is in respect of a claim which is barred by limitation, the same cannot be allowed. In RADHIKA DEVI V. BAJRANGI SINGH AND OTHERS[7], the Apex Court held as follows:- “The ratio therein squarely applies to a fact situation where the party acquires right by bar of limitation and if the same is sought to be taken away by amendment of the pleading, amendment in such circumstances would be refused.” 18. In MUNI LAL V. THE ORIENTAL FIRE AND GENERAL INSURANCE COMPANY LTD., AND ANOTHER[8], the Apex Court held as under: “On a consideration of this case in its proper perspective, we are of the view that granting of amendment of plaint seeking to introduce alternative relief of mandatory injunction for payment of specified amount is bad in law. The alternative relief was available to be asked for when the suit was filed but not made. He cannot be permitted to amend the plaint after the suit was barred by the limitation during the pendency of the proceeding in the appellate Court or the second appellate Court.” 19. In the present case, the proposed amendment if permitted would certainly alter the nature and character of the suit and would bring in new set of facts based on a new cause of action and would introduce new relief of recovery of damages pursuant to transaction to which the plaintiff was not a party and the said relief of recovery of damages is also barred by limitation and the proposed amendment, if permitted would certainly cause prejudice to the contentions of the defendant. Above all, entertaining an application for amendment is clearly barred by proviso to Order VI Rule 17 CPC, as amended in the year 2002, as the said application is filed subsequent to commencement of the trial and there is nothing on record to show that in spite of due diligence the plaintiff could not have raised the said pleas earlier, but, on the other hand, the record shows that the plaintiff was very well aware of the proposed facts and pleas even by the date of filing of the suit, but still failed to plead the same in the original plaint and for no stated reason. Thus, viewed from any angle, the application for amendment filed by the plaintiff is not maintainable. The impugned order allowing the said application is, therefore, held liable to be set aside and is accordingly set aside. 20. In the result, the civil revision petition is allowed. There shall be no order as to costs. _____________________ G.V.SEETHAPATHY, J 10th November, 2011 Lrkm. [1] (2009) 2 SCC 409 [2] (2006)12 SCC 1 [3] 2004-RD-97-108 [4] AIR 2005 SC 3353(1) [5] AIR 1992 SC 81(1) [6] (2009) 10 SCC 84 [7] AIR 1996 SC 2358 [8] AIR 1996 SC 642