1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE SIDE WRIT PETITION NO.6346 OF 2011 Manjiri Project Pvt.ltd. .. Petitioner V/s Shri.Ramchandra Pandharinath Harpale & Ors. .. Respondents Mr.A.V.Anturkar, Advocate i/by Mr.S.B.Deshmukh for the petitioner. Mr.N.V.Walawalkar, Senior Advocate i/by Mr.Drupad S.Patil for the Respondents. CORAM: R.G.KETKAR, J. DATE : 12th September, 2011. P.C.: 1. Heard Mr.Anturkar, learned counsel for the petitioner-original plaintiff and Mr.N.V.Walawalkar, learned senior counsel for Respondents-original Defendants. Rule. Mr.Patil waives service on behalf of Respondents. By consent of the parties rule is made returnable forthwith and is heard finally. 2. The petitioner-original plaintiff has instituted this petition challenging the judgment and order dated 04.07.2011 below Exhibit 58 in Special Civil Suit No.1463 of 2009 passed by the learned 5th Additional Judge, Small Cause Court, Pune. By that order, the learned trial Judge rejected the application made by 2 the plaintiff under Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short C.P.C.) for amending the plaint. The parties shall hereinafter be referred as per their status in the trial Court. 3. The plaintiff instituted special civil Suit No.1463 of 2009 in the Court of Civil Judge, Senior Division,Pune on 05.08.2009 for declaration that the notice dated 17.04.2009 issued by Defendant No.1 terminating the agreement of sale cum development agreement dated 15.12.2006, Supplementary Agreement dated 22.08.2007 and the Power of Attorney dated 15.12.2006 be declared as illegal, null and void and not binding on the plaintiff and the same is non est in the eye of law. The plaintiff has sought perpetual injunction restraining the Defendants from obstructing peaceful and vacant possession of the plaintiff in respect of the properties in dispute and further claiming any right on the basis of the notice dated 17.04.2009. The plaintiff also claimed compensation of Rs.10 crores among other prayers. 4. During the pendency of the suit, plaintiff took out an application for interim relief on 05.08.2009 wherein he claimed 3 temporary injunction restraining the Defendants from disturbing peaceful possession of the plaintiff in respect of the properties in dispute. By judgment and order dated 20.04.2010 learned trial Judge allowed that application and restrained Defendants from disturbing possession of the plaintiff over the property in dispute. Aggrieved by that order, the Defendants preferred Appeal from Order No.486 of 2010 in this Court. The said Appeal from Order was disposed on 15.04.2011 recording the statement made on behalf of the plaintiff herein that the application for amendment of the plaint incorporating a relief of specific performance of the agreement dated 15.12.2006 and supplementary agreement dated 22.08.2007 will be made. The status quo order granted by this Court on 05.05.2010 was ordered to be continued till 31.07.2011 subject to the condition of the plaintiff making an application for amendment of the plaint on or before 07.06.2011. 5. The plaintiff thereafter took out the present application dated 07.06.2011 for amending the plaint. The said application was resisted by the Defendants by filing reply dated 17.06.2011. By the impugned order, the learned trial Judge has rejected the 4 application on the ground that by the proposed amendment, the plaintiff is seeking to include relief of specific performance of contract which is based on a totally different cause of action. The suit instituted by the plaintiff was mainly for declaration and compensation which is sought to be converted into one of the specific performance of contract on an altogether different cause of action. The learned trial Judge was of the view that the plaintiff proposes to introduce new cause of action and new relief altogether different which would result in changing the nature of the suit. The same cannot be allowed. The learned trial Judge accordingly rejected the application. 6. Mr.Anturkar invited my attention to the averments made in Paragraph No.14 of the plaint wherein it is averred that the plaintiff is always ready and willing to pay the balance amount of consideration to the Defendants and it is the Defendants who have committed breach of the terms and conditions of the agreement to sale cum development agreement and that the plaintiff is ready and willing to complete the said transaction by paying the balance amount of consideration provided the Defendants perform their reciprocal promises given to the 5 plaintiff. 7. He further submitted that perusal of prayer clause (b) indicates that the plaintiff has claimed declaration that the notice dated 17.04.2009 issued by Defendant No.1 thereby terminating the agreement of sale cum development agreement dated 15.12.2006, the Supplementary Agreement dated 22.08.2007 and the Power of Attorney dated 15.12.2006 be declared as illegal, null and void. In other words by this prayers plaintiff is praying that the agreement of sale cum development agreement dated 15.12.2006, supplementary agreement dated 22.08.2007 and the power of attorney dated 15.12.2006 are valid and subsisting. He submitted that there was omission in praying for specific performance of the contract. He invited my attention to the amendment proposed by the plaintiff in the application for amendment. 8. On the other hand, Mr.Walawalkar invited my attention to sections 21 and 22 of the Specific Relief Act, 1963 to contend that the plaintiff has to claim both; relief of specific performance and the relief of compensation for breach of contract. The plaintiff cannot claim compensation without 6 claiming relief of specific performance and if now the plaintiff is permitted to claim relief of specific performance, serious prejudice would be caused to the Defendants inasmuch as one of the contentions about maintainability of the suit of the plaintiff in the present form will not be available to the Defendants. He therefore submitted that by permitting the proposed amendment, serious prejudice would be caused to the Defendants. He invited my attention to the provisions of Order II Rule 2 of the CPC to contend that the plaintiff ought to have sought leave to institute suit claiming relief of specific performance and since the leave was not obtained, he cannot seek that relief by way of filing the application for amendment. He submitted that the plaintiff would be free to file substantive suit for specific performance of the contract. At any rate, according to him it alters the nature of the suit as the plaintiff proposes to introduce either the new cause of action or another cause of action. In support of this submission, He relied upon the decision of the Apex Court in the case of Revajeetu Builders and Developers (2009) 10 SCC 84 and the judgment of this Court in the case of Prakash Ratanlal @ Ratansa 7 Kasari V/s. B.B.Dhage & Anr., 2010 (Supp) Bom.C.R.131. 9. I have considered the rival submissions made by learned counsel for the parties. It is not in dispute that the present suit is instituted on 05.08.2009 for declaration, permanent injunction and for damages. In Paragraph No.14 of the plaint plaintiff has specifically averred that he is ready and willing to complete transaction by paying the balance amount of consideration provided the Defendants perform their reciprocal promises given to the plaintiff. By prayer clause (b) the plaintiff is claiming declaration that the notice dated 17.04.2009 issued by Defendant No.1 thereby terminating the agreement of sale cum development agreement dated 15.12.2006, supplementary agreement dated 22.08.2007 and the power of attorney dated 15.12.2006 be declared illegal, null and void. In other words, the plaintiff is claiming declaration that these documents are subsisting and consequently are binding on the parties. 10.The learned trial Judge rejected the application on the ground that by the proposed amendment the plaintiff is seeking to include relief of specific performance of contract which is based on a totally different cause of action. The learned trial 8 Judge was also of the view that by the proposed amendment the nature of the suit would be changed. I do not agree with the view taken by the learned trial Judge. Having regard to the pleadings between the parties as also having regard to the necessary averments made by the plaintiff in the suit, it cannot be said that by the proposed amendment the plaintiff is seeking to include the relief of specific performance of contract which is based on a totally different cause of action. In fact before institution of the suit it has come on record that the plaintiff has issued notice to the Defendants calling upon them to complete the transaction. Even in the plaint he asserted his readiness and willingness to complete the transaction. This is obviously with reference to the relief of specific performance of contract. The plaintiff has pleaded all necessary facts and keeping in view the prayer in the amendment it cannot be said that the amendment proposed is foreign to the scope of the suit. I also do not agree with the submissions made by Mr.Walawalkar that by allowing the proposed amendment serious prejudice would be caused to the Defendants. This is so having regard to the fact that on 17.04.2009 the Defendants have issued notice terminating the 9 agreement of sale cum development agreement dated 15.12.2006, supplementary agreement dated 22.08.2007 and the power of attorney dated 15.12.2006, and the suit was instituted on 05.08.2009 and the amendment application is moved on 07.06.20011. It cannot be said that by the proposed amendment the plaintiff is claiming relief of specific performance which has become time barred. In my opinion the proposed amendment is necessary for determination of real question in controversy between the parties. In view thereof, the impugned order cannot be sustained and the same deserves to be set aside. 11.Mr.Walawalkar relied upon the judgment of the Apex Court in the case of Revajeetu Builders & Developers (supra) and in particular Paragraph No.50 thereof to contend that if the plaintiff seeks to alter the cause of action itself and to introduce indirectly, through amendment of his pleadings, the entirely new as also the inconsistent cause of action amounting virtually to a situation of new plaint or new cause of action in place of what was originally there, the Court will refuse to permit it, if it amounts to depriving the party against which the suit is pending of any right which may have accrued in its favour due to lapse 10 of time. He further invited my attention to the judgment of this Court in the case of Prakash Ratanlal (supra) and in particular Paragraph No.9 thereof to contend that the matter which the plaintiff wanted to bring by way of amendment in the plaint was within his knowledge on the date of filing of the suit. 12.In so far as the judgment of the Apex Court in the case of Revajeetu (supra) is concerned, the Apex Court after tracing the legislative history, objects and reasons for incorporating Order 6 Rule 17 as also considering the English cases as also the Indian cases, has laid down the parameters in Paragraph No.61 and in Paragraph No.63 further factors to be taken into consideration while dealing with the applications of amendment. Paragraph No.63 reads as under:- “63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1)Whether the amendment sought is imperative for proper and effective adjudication of the case; (2)Whether the application for amendment is bonafide or malafide; (3)the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4)refusing amendment would in fact lead to injustice or lead to multiple litigation; (5)whether the proposed amendment constitutionally or 11 fundamentally changes the nature and character of the case, and (6)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. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.” 13.In paragraph No.50 of that report, the Apex Court quoted paragraph No.5 from the judgment in the case of Ganesh Trading Co.V/s.Moji Ra (1978) 2 SCC 91 wherein it was observed that it is only if the lapse of time has barred the remedy on the newly constituted cause of action, that the Court should ordinarily, refuse prayers for amendment of pleadings. I have already indicated that the prayer for specific relief did not become time bar when the plaintiff moved the application for amendment. Considering the parameters laid down by the Apex Court in Paragraph No.61 and the factors to be taken into consideration as referred in Paragraph No.63 quoted herein- above, I am of the opinion that the application for amendment moved by the plaintiff is bonafide. The proposed amendment does not cause prejudice to the Defendants or does not cause any injustice to the Defendants. 12 14.In so far as the judgment of this Court in the case of Prakash Ratanlal (supra) is concerned, on facts this Court found that the application for amendment was filed at a belated stage and if the application for amendment is allowed, certainly it would change the nature of the suit as well as cause prejudice to the Defendants. I am therefore of the opinion that the judgment of this Court in the case of Prakash Ratanlal (supra) is not applicable to the facts obtaining in the present case. The judgments referred to by the learned counsel for the Defendants do not advance their case. 15.Mr.Walawalkar contended that the plaintiff ought to have sought relief under Order II Rule 2 to institute a suit for specific performance of the contract. As the plaintiff did not obtain leave, he cannot seek that relief by filing the application for amendment. He further submitted that the plaintiff would be free to institute suit for specific performance of the contract. In the case of C.M.P. Ltd.V/s.Polular Constructions, 1994 Mh.L.J.812, the Division Bench of this Court has held that the plaintiff can seek leave of the Court under sub-rule 3 of Rule 2 of Order II at any time before the date of decree in the first suit 13 and the jurisdiction of the Court is not ousted because the leave is not sought before the institution of the first suit. Leave to institute second suit can be sought at any time during the pendency of the first suit, but such leave must be obtained prior to the date of the institution of the second suit. The Court would grant leave provided the plaintiff is seeking leave for any relief omitted and not in respect of any portion of the claim which was omitted or intentionally relinquished at the time of institution of the first suit. Now in the instant case, the suit instituted by the plaintiff is pending. In the light of the judgment of this Court in C.M.P. Ltd. (supra), the plaintiff is entitled to apply for leave for instituting the second suit claiming for specific relief. As against this, the plaintiff has filed an application for amendment seeking specific performance of the contract. I have already held that the plaintiff had pleaded all the necessary facts and keeping in view the prayer in the amendment, it cannot be said that the amendment proposed is foreign to the scope of the suit. I have also held that the proposed amendment is necessary for determination of real question in controversy between the 14 parties. It is therefore necessary to allow the application for amendment in order to avoid multiplicity of proceedings. 16.Relying upon sections 21 and 22 of the Specific Relief Act, 1963, Mr.Walawalkar contended that the plaintiff has to claim both the reliefs viz. the relief of specific performance as also the relief of compensation for breach of contract. The plaintiff cannot claim compensation without claiming relief of specific performance. If now the plaintiff is permitted to claim the relief of specific performance, serious prejudice would be caused to the Defendants as one of the contentions about the maintainability of the suit of the plaintiff in the present form will not be available to them. I do not find any substance in this contention. All that section 21 provides is that in a suit for specific performance of the contract, in addition to the relief of specific performance, the plaintiff may claim compensation or in the alternative may claim compensation. If the Court comes to the conclusion that the specific performance cannot be granted although the Defendants have committed breach of the contract and the plaintiff is entitled to compensation for that breach, the Court will award him such compensation. It also 15 provides that if in any such suit, the Court decides that the specific performance be granted, but that it is not sufficient to satisfy the justice of the case and that some compensation in breach of the contract should also be made to the plaintiff, it shall award such compensation keeping in mind the principles specified in section 73 of the Indian Contract Act, 1872. Section 21 (5) further provides that no compensation shall be awarded under this section unless the plaintiff has claimed compensation in his plaint. The proviso which is important thereof lays down that where the plaintiff has not claimed any such compensation in the plaint, the Court shall at any stage of the proceedings allow him to amend the plaint on such terms as may be just for including the claim for such compensation. I therefore do not find any merit in the submission of the learned counsel based upon section 21. As far as section 22 of the Specific Relief Act, 1963 is concerned, in the facts and circumstances of the case, it is not applicable. 17.Before parting with this order, it is evident that the plaintiff moved an application for amendment at a stage where the trial has not yet commenced. In the case of Baldev Singh & 16 Ors.v/s.Manohar Singh & Anr., 2006 (5) Mh.L.J.634, the Apex Court has held that the expression “commencement of trial” as used in proviso to Rule 17 of Order 6 must be understood in the limited sense as meaning final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. It therefore follows that in the present case, the trial is yet to commence. The impugned order even on this ground cannot be sustained. 18.In the result, rule is made absolute. The impugned judgment and order dated 04.07.2011 below Exhibit 58 in Special Civil Suit No.1463 of 2009 passed by the learned trial Judge is quashed and set aside. Application for amendment at Exhibit 58 is hereby allowed. The plaintiff shall carry out amendment within a period of two weeks from today. Rule is made absolute in the aforesaid terms, with no order as to costs. 19.After the plaintiff serves amended copy of plaint on the Defendants, the Defendants are permitted to file their written statement to the amended plaint within a period of four weeks thereafter. 20.On the oral application made by learned counsel for the 17 Respondents, operation of this order is stayed for a period of eight weeks from today. (R.G.KETKAR, J.)