IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 WP(C).No. 5393 of 2009(O) AGAINST THE ORDER DATED 12/12/2008 IN IA. NO.1548/2008 IN OS.45/2008 OF SUB COURT, QUILANDY PETITIONER: DEFENDANT/RESPONDENT: ------------------------------------ PARAPPALLIYIL DASAN, S/O.KALLIANY, AGED 46 YEARS, BUSINESS, PERAMBRA AMSOM, PILLAPERUVANNA DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.A.RANJITH NARAYANAN SRI.S.K.SAJU RESPONDENT: PLAINTIFF/PETITIONER: ------------------------------------ K.K.SASI, S/O.KUTTAPPAN, AGED 57 YEARS, PENSIONER, RESIDING AT KATHALIKKAYIL, PILLAPERUVANNA DESOM, PERAMBRA AMSOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/02/2009, THE COURT ON 01/07/2009, DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 5393 OF 2009 ------------------------------------------------------ Dated this the 1st day of July, 2009 JUDGMENT The defendant in O.S.NO.45 of 2008 on the file of the Court of the Subordinate Judge of Koyilandy challenges in this Writ Petition the order dated 12th December, 2008 in I.A.No.1548 of 2008, by which the trial court allowed the application for amendment of the plaint filed by the respondent. 2. The respondent filed the suit for specific performance of an agreement to sell the plaint schedule property. It is alleged in the plaint that the plaintiff and the defendant entered into an agreement for sale on 25.4.2006 by which the defendant agreed to sell the plaint schedule property to the plaintiff on or before 30.6.2006. Advance of Rupees One lakh was paid. It is stated in the plaint that another sum of Rs.13,000/- was paid to the defendant on 20.8.2006 and a further sum of Rs.10,000/- was paid in February, 2007. 3. In paragraphs 7 and 8 of the plaint, the plaintiff made the following averments: W.P.(C) NO.5393 OF 2009 :: 2 :: “7. The plaint schedule property is a rubber plantation and plaintiff had agreed to purchase it expecting a periodical income during his retirement life. The defendant had permitted plaintiff to tap rubber from the plaint schedule property as per the agreement in anticipation of execution of sale on 30.06.2006. Accordingly the plaintiff was taping rubber from the property. The plaintiff advanced another sum of Rs.23,000/- to the defendant after the agreement and continued to tap rubber even after the stipulated period. Now the defendant is threatening the plaintiff to interfere in these taping activities with ulterior motive of rescinding from the contract. 8. It is respectfully submitted that the defendant had transferred the possession of the plaint property at the time of the agreement and plaintiff is entitled to remain in possession under Section 53A of the Transfer of Property Act. The plaintiff therefore prays that he may be granted a decree of specific performance on paying of balance amount of Rs.47,000/- as abovementioned. Plaintiff is also seeking the relief of injunction against dispossession from the property.” 4. Reliefs A to C in the plaint are the following: “A. Directing the defendant to specifically perform the agreement for sale dated 25.04.2006 and to execute a deed of sale in respect of the property described in the schedule of plaint on payment of balance of Rs.47,000/-. B. Restraining the defendant and his men by means of a prohibitory injunction from dispossessing the plaintiff from the plaint property. C. Alternately directing the defendant to return the sum of Rs.1,23,000/- as an ancillary relief;” W.P.(C) NO.5393 OF 2009 :: 3 :: 5. In the written statement, the defendant specifically denied the contention of the plaintiff that he was put in possession of the property. The defendant also stated that the plaintiff was not permitted to tap the rubber trees. 6. The plaintiff filed I.A.No.512 of 2008 for temporary injunction restraining the defendant from obstructing the plaintiff or his workers from tapping the rubber trees. The defendant also filed an application for temporary injunction (I.A.No.661 of 2008) restraining the plaintiff from trespassing upon the plaint schedule property. The trial court disposed of these applications by a common order dated 25th June, 2008; the application filed by the plaintiff was dismissed and the application filed by the defendant was allowed. 7. Thereafter, the plaintiff filed I.A.No.1548 of 2008 for amendment of the plaint. In the affidavit accompanying the application for amendment of plaint, the plaintiff averred thus: W.P.(C) NO.5393 OF 2009 :: 4 :: “4. The defendant had filed an application of temporary injunction before the Hon'ble Court against this plaintiff as I.A.No.661/08 to restrain the plaintiff from tapping rubber, on the plea that he is in possession and that he is entitled to continue tapping. The application were jointly considered by the Hon'ble Court as per order dated 25.6.2008 by which the application for injunction by plaintiff was disallowed and that of defendant were allowed. Under the circumstances plaintiff is advised that in addition to the relief of specific performance the relief of possession is also necessary for the proper adjudication of the case. He is also advised that the agreement enables him to realise the value of 75 rubber trees from defendant from the date of agreement.” The plaintiff sought to delete the prayer for injunction in the relief portion in the plaint. Instead, a prayer “directing the defendant to hand over possession on executing such deed of sale” was sought to be added. A prayer for recovery of “profits – in - lieu of possession” was also sought to be incorporated in the plaint. 8. The defendant filed a counter statement in I.A.No.1548 of 2008 and contended that the application for amendment of plaint cannot be allowed since the amendment will change the nature and character of the suit. In the absence of change in circumstances, amendment cannot be allowed, contended the defendant. It was also contended that the amendment is intended to get over the W.P.(C) NO.5393 OF 2009 :: 5 :: defence already taken by the defendant. The purpose of the amendment is to fill the lacuna in the case of the plaintiff. The defendant contended that the attempt of the plaintiff is to enlarge the scope of the suit. 9. The trial court allowed the application for amendment of the plaint holding that to avoid multiplicity of proceedings, amendment of the plaint is necessary. 10. The learned counsel for the petitioner contended that where the plaintiff stated in the plaint that he is in possession of the property, he cannot take a diametrically opposite stand by way of amendment of plaint and pray for putting him in possession of the property. Alternatively, the counsel contended that the plaintiff knew the defence of the defendant well in advance and therefore the application for amendment should have been filed before the disposal of the applications for temporary injunction. According to the counsel, the nature and character of the suit is sought to be changed by the amendment and the “course of the suit” is also changed. It is also contended that the application for amendment is W.P.(C) NO.5393 OF 2009 :: 6 :: based on the order in the applications for temporary injunction and not on any specific case put forward by the plaintiff. 11. It is well settled that the courts must be liberal in allowing application for amendment of the plaint. In certain situations, avoidance of multiplicity of suits is an object sought to be achieved by allowing the application for amendment. A complete and effectual adjudication of the disputes between the parties in respect of the subject matter of the suit, in the same suit itself, would be beneficial to both parties. Amendment of plaint which would enable the court to do so would normally be allowed. It would not cause prejudice to any party to the suit. On the other hand, it would enable the parties to save time and money. A technical approach to decline the prayer for amendment would not be made by courts in such circumstances. That principle has not undergone any substantial change, even after the insertion of the proviso to Rule 17 of Order VI of the Code of Civil Procedure, by the Code of Civil Procedure amendment Act 22 of 2002. The proviso deals with a different situation to check the dilatory tactics of the parties and thus to avoid delay in the disposal of the case. In the present case, the plaintiff is not seeking to W.P.(C) NO.5393 OF 2009 :: 7 :: withdraw an admission made by him in the plaint. On the other hand, he is seeking to withdraw a positive assertion of his case that he is in possession of the property. The defendant disputed this part of the case of the plaintiff and contended that the defendant is in possession. The amendment sought to be introduced is in tune with the defence of the defendant. It does not affect the defence at all. No prejudice would be caused to the defendant by allowing the application for amendment. On the other hand, as held by the court below, multiplicity of the proceedings can be avoided by allowing the amendment. 12. In a suit for specific performance of a contract for transfer of immovable property, the plaintiff may ask for possession. Section 22 of the Specific Relief Act enables him to do so. The plaintiff can make such a relief for possession in the alternative as well. The plaintiff can very well maintain that he is in possession of the property. At the same time, he can seek a relief for possession in the alternative, if the court is inclined to take the view that the plaintiff has not proved his contention that he is in possession. In the present case, the plaintiff could have made such an alternative W.P.(C) NO.5393 OF 2009 :: 8 :: prayer in the plaint at the time of institution of the suit itself. Now he makes a prayer for possession in view of the finding of the trial court in the application for temporary injunction that, prima facie, the defendant has established his case of possession. It cannot be said that by allowing the amendment of plaint to incorporate a relief for possession, the nature and character of the suit would be changed. The proviso to Section 22 of the Specific Relief Act provides that where the plaintiff has not claimed any relief mentioned in clauses (a) or (b) of sub-section (1), the Court shall, at any stage of the proceeding, allow him to amend the plaint. Though the plaintiff contended that he is in possession of the property and therefore did not make a prayer for possession, it would not preclude him from seeking to incorporate a prayer for possession by way of amendment of plaint. Strictly speaking, a right to possession accrues only when specific performance is decreed. The provisions in Section 22 of the Specific Relief Act enabling the plaintiff to seek a relief for possession in the suit for specific performance is aimed at avoiding multiplicity of suits. Allowing the application for amendment of plaint to add a prayer for possession would only help to achieve the object of Section 22 of the Specific Relief Act. W.P.(C) NO.5393 OF 2009 :: 9 :: 13. For the sake of convenience, sub-rules (1) and (2) of Section 22 of the Specific Relief Act and Rule 17 of Order VI of the Code of Civil Procedure are extracted below: “22. Power to grant relief for possession, partition, refund of earnest money, etc.-- (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for-- (a) possession, or partition and separate possession, of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.” “17. Amendment of pleadings.-- The Court may W.P.(C) NO.5393 OF 2009 :: 10 :: at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: 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.” 14. The expression “shall” is used in the proviso to sub- section (2) to Section 22 of the Specific Relief Act in the matter of allowing amendment. Whereas, in the opening part of Rule 17 of Order VI of the Code of Civil Procedure, the expression used is "the court may at any stage of the proceedings". The Specific Relief Act, 1963, is an Act to define and amend the law relating to certain kinds of specific relief. “The Specific Relief Act is not an exhaustive enactment. It does not consolidate the whole law on the subject. It does not purport to lay down the law relating to specific relief in all its ramifications. Although a matter on which the Act defines the law it might generally be exhaustive, the Act as a whole cannot be considered as exhaustive of the whole branch of the law of specific W.P.(C) NO.5393 OF 2009 :: 11 :: performance.” (vide Hungerford Investment Trust Limited v. Haridas Mundhra (AIR 1972 SC 1826)). The Specific Relief Act is a substantive law. In certain matters, it provides for the procedure in specified situations. Specific relief is an equitable relief. The court is not bound to grant the relief, even if it is lawful to do so. Discretion of the Court is very relevant in the matter of granting relief. The Code of Civil Procedure is the general law relating to procedure of the suits and proceedings before civil court, though it contains provisions of a substantive nature as well. When a specific provision is made under the Specific Relief Act in respect of the procedure to be followed in a particular situation, the general rules of procedure contained in the Code of Civil Procedure must give way to the specific provision made in the Specific Relief Act. The proviso to Order VI Rule 17 of the Code of Civil Procedure interdicts the power of the Court to allow amendment 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. Relief of possession is inherent in the relief of specific performance. Section 55(1)(f) of the Transfer of Property Act binds the seller to give, on being so required, the buyer, such W.P.(C) NO.5393 OF 2009 :: 12 :: possession of the property as its nature admits. Sub-section (2) of Section 22 of the Specific Relief Act bars the grant of relief of possession unless it is specifically claimed. However, the Court shall, at any stage of the proceeding, allow the plaintiff to amend the plaint for including a claim for possession, as mentioned in the proviso to sub-section (2) of Section 22. The scope and ambit of the power to allow amendment of plaint is to be viewed in the light of such bar contained in sub-section (2) of Section 22 of the Specific Relief Act and also taking note of Section 55(1)(f) of the Transfer of Property Act. The proviso to Order VI Rule 17 of the Code of Civil Procedure is to be harmoniously construed with the proviso to Section 22(2) of the Specific Relief Act and Section 55(1)(f) of the Transfer of Property Act. If so, it has to be held that the rigour of the proviso to Rule 17 of Order VI of the Code of Civil Procedure would not as such apply in the case of an amendment of plaint to claim the relief of possession in a suit for specific performance. Once it is held that the seller is liable to execute the deed of sale in favour of the buyer and when the seller himself has a case that he is in possession of the property, it would be unjust to deny possession to the buyer. W.P.(C) NO.5393 OF 2009 :: 13 :: 15. I do not think that the nature and character of the suit will be changed by allowing the amendment. It is also not just to dismiss the application for amendment of plaint on the ground that the plaintiff had stated in the plaint that he was put in possession of the property. The plaintiff was justified in making the application for amendment in view of the order passed by the court below in the applications for temporary injunction. It is true that the order passed by the court below is cryptic. But that by itself is not a ground to set aside the order. I am of the view that the court below has not committed any error by allowing the application. The Writ Petition lacks merits. Accordingly, the Writ Petition is dismissed. (K.T.SANKARAN) Judge ahz/