HONOURABLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.2491 of 2011 ORDER: This revision petition is directed against the order dated 20-06-2011 in I.A.No.872 of 2010 in O.S.No.33 of 2007 on the file of the Senior Civil Judge, Jagtial, wherein, the said application, filed by the petitioner herein, the plaintiff, under Order 6 Rule 17 CPC seeking amendment of plaint, was dismissed. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondents. Perused the record. 3. The petitioner herein filed the suit against the respondents, D-1 to D-4, for the specific performance of agreement of sale, dated 29- 9-1997 and for cancellation of registered sale deeds said to have been executed in favour of D-2 to D-4. According to the petitioner, the 1st defendant entered into an agreement of sale with the petitioner in respect of the schedule property and received sale consideration of Rs.43,000/- and that in spite of the petitioner being ready and willing to perform his part of contract, the defendant did not come forward to execute registered sale deed, but on the other hand, the 1st defendant executed registered sale deeds of conveyance in favour of D-2 and D- 3 in respect of the plaint schedule plots of land. The petitioner further alleges that D-3 in-turn executed a registered sale deed, dated 29-06- 2006 in favour of D-4 in respect of 225 square yards. The petitioner- plaintiff has therefore sought cancellation of the registered sale deed, dated 13-12-2004 executed by D-1 in favour of D-2 and registered sale deed dated 27-06-2005 executed by D-1 in favour of D-3 and further two registered sale deeds, dated 29-06-2006 executed by D-2 and D-3, respectively, in favour of D-4. 4. The 1st defendant filed written statement and D-2 and D-3 adopted the same contending that the petitioner and D-1 jointly carried on finance business for few years and that on 14-07-2000, there was a settlement before the elders, under which, it was decided that D-1 shall take Rs.82,000/- towards finance accounts and Rs.43,000/- towards the amount covered under the document, dated 29-09-1997 totaling Rs.1,25,000/- and D-1 executed a registered mortgage deed, dated 02- 11-1999 in favour of plaintiff and subsequently on 14-07-2000, D-1 repaid the said amount together with interest totaling Rs.1,38,125/-. Thus, the dispute was settled before the elders. According to D-1, the plaintiff failed to return original agreement, dated 29-09-1997 and informed that the said document was not traced in spite of efforts and he has undertaken that the said document has become null and void, in view of the settlement of dispute on 14-07-2000 and return of the document as and when it was traced out. But, however, filed the suit with ulterior motive to grab the property. 5. D-4 filed a separate written statement denying the said agreement of sale between the plaintiff and D-1 and contended that he is a bona fide purchaser for valuable consideration of Rs.1,35,000/- in respect of plot No.65 of an area of 225 square yards under registered sale deed, dated 29-06-2006. 6. It is stated that the necessary issues were settled and the trial of the suit has commenced with filing of chief affidavit by P.W.1, the petitioner. At this stage, the petitioner filed the present application I.A.No.872 of 2010 under Order 6 Rule 17 CPC seeking amendment of the plaint by incorporating the plea “the plaintiff was ready and willing to specific performance of agreement of sale, dated 29-09-1997 by bearing stamp duty and registration fee for execution of the registered sale deed by D-1 in favour of plaintiff.” 7. The respondents opposed the said application on the ground that it was highly belated and proposed amendment cannot be permitted subsequent to the commencement of the trial in view of the amendment Act 22 of 2002 and that if the application is allowed, it will cause prejudice to the defence of the defendants as it amounts to filling in lacuna in the pleadings. 8. By the impugned order, the learned Senior Civil Judge dismissed the application holding that the said application was filed subsequent to the commencement of the trial and also that proposed amendment would deprive valuable rights of the defendants that have accrued under Section 16-C of the Specific Relief Act (for brevity ‘the Act’) and there was nothing to show that in spite of due diligence, the plaintiff could not raise the proposed plea in the original plaint. 9. Though the petitioner filed the suit for specific performance of the agreement of sale, the plaint does not contain any specific plea that the plaintiff was ready and willing to perform his part of the contract. Even in the chief affidavit, the plaintiff as P.W.1 has not specified his readiness and willingness to perform his part of contract. Even in the affidavit filed in support of the present application also, the petitioner has not averred that he was ready and willing to perform his part of contract, but, however, he could not raise the said plea in the original plaint. In the affidavit, he merely stated that in spite of due diligence he could not plead in the plaint as proposed by way of amendment. 10. The learned counsel for the petitioner would contend that as according to the petitioner, the entire consideration of Rs.43,000/- was paid by the petitioner, there was nothing more required to be done by the petitioner on his part and therefore, it was not specifically averred in the plaint that he was ready and willing to perform his part of the contract. It is, however, not the ground urged in the affidavit filed in support of the application. In fact, no reason or explanation is furnished as to why the said plea was not raised in the original plaint. Even as per the affidavit of the petitioner, in spite of due diligence, the said plea could not be raised in the original plaint, which means that there was no lack of diligence on the part of the petitioner while drafting the original plaint. It is not the case of the petitioner that the omission to raise the said plea in the original plaint is on account of any mistake or inadvertence. 11. Be that as it may Section 16 (c) of the Act states that specific performance of contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him. Explanation (ii) to Clause (c) of the Act says that the plaintiff must aver performance or readiness and willingness to perform, the contract according to its true construction. 12. It is well settled that the continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant relief of specific performance which is an equitable remedy lying in the discretion of the Court. Simply because, according to plaintiff, entire consideration was paid, it does not absolve the plaintiff from the responsibility to aver and also prove that he has performed or has always been ready and willing to perform the contract, especially, in the light of the statutory requirement contained in Section 16 (c) of the Act. Failure on the part of the petitioner/plaintiff to meet the said statutory requirement contemplated in Section 16 (c) of the Act, would certainly give rise to a valuable right of defence and when such right is sought to be taken away by way of the proposed amendment, the same would be impermissible. 13. Order VI Rule 17 CPC, no doubt, enables the Court to allow the parties to amend their pleadings. However, such an amendment notwithstanding liberal approach required to be adopted cannot be permitted when it tends to take away the valuable right already accrued to the opposite party by virtue of operation of any statutory provision and thereby cause prejudice to his defence. 14. The learned counsel for the petitioner relied upon a decision reported in Gajanan Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar[1], wherein the Apex Court permitted amendment of the plaint by adding the said plea observing that omission probably was on account of some oversight or mistake of the lawyer who drafted the plaint and that the mistake was sought to be remedied by the amendment sought for. 15. It is not the case of the petitioner that on account of mistake or inadvertence that the omission has occurred in the original plaint. On the other hand, his subsequent averment in the affidavit is that there was due diligence but still the said plea was not raised in the original plaint which only leads to the inference that it was consciously omitted. The decision cited, therefore, is not applicable to the facts of the present case. 16. Learned counsel for the petitioner made reference to a decision of the Apex Court in Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and others[2], in support of his contention that liberal approach is warranted in permitting the amendment of pleadings. The above decision of the Apex Court has laid down certain factors to be taken into consideration while dealing with the applications for amendments and one of them is that the amendment should not cause such prejudice to other side which cannot be compensated adequately in terms of money. In the present case, the failure on the part of the petitioner to raise the proposed plea in the original plaint failure even according to him was not on account of any mistake or inadvertence but in spite of due diligence and the proposed amendment would certainly cause prejudice to the respondents in their defence in terms of the statutory requirement under Section 16 (c) of the Act and such prejudice cannot be certainly be compensated by payment of costs. 17. In another decision in Chander Kanta Bansal Vs. Rajinder Singh Anand[3], relied on by the learned counsel for the petitioner, the Apex Court, while holding that liberal principles would guide the exercise of discretion in allowing the amendment, cautioned that care should be taken to see that injustice and prejudice which are irremediable are not inflicted upon opposite party under the guise of amendment. 18. The above decision was sought to be relied upon by the learned counsel for the petitioner in support of his contention that the expression “due diligence” occurring in the proviso to Order VI Rule 17 CPC means such a diligence as a prudent man would exercise in conduct of his own affairs and the proviso is intended only to curtail delay and expedite the hearing of the cases and it does not completely bar an application subsequent to the commencement of the trial. 19. It cannot for a moment be disputed that the present application is filed subsequent to the commencement of the trial. It cannot also be disputed that the trial in the suit has commenced after the issues have been settled and the chief affidavit of P.W.1 is also filed, when that is so, by virtue of the proviso contained in Order VI Rule 17 CPC introduced by way of amendment by the Act 22 of 2002, the application for amendment shall not be allowed after the trial has commenced, unless the Court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. Except repeating the words occurring in the statute parrot like in the affidavit stating that in spite of due diligence, the proposed plea could not be raised in the original plaint, the petitioner has not bothered to explain the reasons for or the circumstances under which such plea could not be raised in the original plaint to enable the Court to decide whether such omission has occurred in spite of exercise of due diligence by the petitioner. In the absence of any such reasons furnished for not raising the said plea in the original plaint, in spite of there being a statutory requirement to make an averment in the plaint under Section 16 (c) of the Specific Relief Act, there was no occasion for the Court to judge whether the omission to plead has occurred in spite of exercise of due diligence. It is therefore not a case where in spite of exercise of due diligence the petitioner could not raise the matter before commencement of trial. 20. Learned counsel for the petitioner also relied upon a decision in Abdul Khader Rowther Vs. P.K. Sara Bai and Others[4], which was also a case where the plaint did not contain the requisite plea that the plaintiff was ready and willing to perform his part of contract. The Apex Court held that a suit for specific performance has to conform to the requirements specified in Forms 47 and 48 of the First Schedule of CPC and in a suit for specific performance, it is incumbent on the plaintiff not only to set out agreement on the basis of which the suit is filed, but also plead that he has demanded to the defendant specifically to perform the agreement pleaded by him, but the defendant has not done so. He must further plead that he has been and he is still ready and willing to perform his part of the agreement. 21. The above decision followed the earlier decision in Ouseph Varghese Vs. Joseph Aley[5], wherein, it was held as follows: “A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the First Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken those pleas. As observed by this Court in Prem Raj v. D.L.F. Housing and Construction ((P)) Ltd.2 that it is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation the suit is not maintainable.” 22. In a recent decision in Vidyabai & Others Vs. Padmalatha and Another[6], the Apex Court held that the trial commences on the date issues are framed and that the permission to amend the written statement granted after the plaintiff has filed affidavit in lieu of chief examination was liable to be set aside. 23. In the above case, it was held that in a civil suit, the trial begins when the issues are framed and the case is set down for recording evidence. In para-14, it was further held: “14……….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.” From the above decisions, it is clear that unless the Court is of the opinion that in spite of exercise of due diligence, the party could not raise the matter prior to commencement of trial, the Court would not get jurisdiction to allow the amendment in view of the embargo contained on exercise of the jurisdiction. 24. In the present case, there is absolutely no material placed before the Court nor any reasons furnished by the petitioner which would enable the Court to exercise the jurisdiction and allow the amendment, which is otherwise curtailed. 25. In the circumstances, it is held that the impugned order dismissing the application on the ground that the proposed amendment cannot be allowed as the same would cause prejudice to the respondents in their defence and also on the ground that it was filed after commencement of trial without any explanation for not raising the plea prior to the commencement of the trial, does not call for any interference by this Court. 26. In the result, the Civil Revision Petition is dismissed. No order as to costs. ________________ 15-09-2011 kvr [1] (1990) 1 S.C.C. 166 [2] (2009) 10 S.C.C. 84 [3] A.I.R. 2008 S.C. 2234 [4] A.I.R. 1990 S.C. 682 [5] (1969) 2 S.C.C. 539 [6] A.I.R. 2009 S.C. 1433