THE HON’BLE SRI JUSTICE G.CHANDRAIAH %08.02.2011 C.R.P.NO.5162 OF 2010 GATTU MAHESH AND ANOTHER PETITIONERS And T.S. Selva Raj and eleven others. RESPONDENTS Counsel for the petitioners: SRI V.RAVINDER RAO Counsel for the respondents : SRI G.ARUN KUMAR RAO < Gist Ø Head Note. Ø ?Cases Referred: 1. (1990)1 SCC 166 2. (1998)2 SCC 720 3. (2009)10 SCC 84 4. (2008)5 SCC 117 5. (2002)7 SCC 559 6. 1986(2) A.P.L.J. 80(AP) 7. (2008)14 SCC 364 THE HON’BLE SRI JUSTICE G.CHANDRAIA C.R.P.NO.5162 OF 2010 O R D E R Heard both the counsel. 2. Aggrieved by the order and decree dated 20.10.2010 passed by the court of II Additional District Judge, Karimnagar at Jagital in I.A.No.1078/2010 in O.S.No.9/2004, in rejecting the I.A. filed by the plaintiffs seeking amendment of the plaint under Order 6, Rule 17 of C.P.C., the present revision is filed by the plaintiffs. 3. The plaintiffs filed the suit in O.S.No.9/2004 seeking specific performance of the agreement of sale dated 27.9.1985. The trial of the suit is concluded and the matter is post for judgment. At this stage, the plaintiffs filed the present application seeking amendment of the plaint under Order 6, Rule 17 of C.P.C. stating that as a result of typographical error, the plea, ‘that they have been and are ready and willing to perform their part of the agreement of sale dated 27.9.1985 and that they are ready with balance amount as per the agreement,’ could not be taken despite exercise of due diligence and, therefore, sought to allow the said amendment of plaint. 4. The defendants filed counter affidavit and stated that after the arguments of both the sides was completed on 20.9.2010 and written arguments were filed on their behalf on the same day and wherein they pointed out that the pleadings of the plaintiff is not as per the requirement of Section 16 ( c ) of Specific Relief Act and Form no.47 Appendix-A of C.P.C. and so, on 24.9.2010 the present petition was filed seeking amendment to incorporate the plea the they are ready and willing to perform their part of the contract. It is further contended that the proposed amendment will take the suit back to the stage of filling written statement and it would also cause prejudice and harassment. With these averments, the I.A. was sought to be dismissed. 5. Considering the above contentions, the court below held that the present amendment sought is not an typographical error and by the proposed amendment, the plaintiffs are seeking to add a separate paragraph and if the said amendment is allowed, it amounts to permitting a new plea and further the plaintiffs have filed the present petition for amendment, when the defendants have taken a specific ground that the plaint is not in compliance of the provisions of Section 16( c ) of the Specific Relief Act and if the present amendment is allowed, which is sought after completion of entire trial and when the matter is posted for judgment, it would amount to causing serious prejudice to the defence taken by the defendants. Hence, the court below dismissed the I.A. Aggrieved by the same, the present revision is filed by the plaintiffs. 6. The learned counsel for the petitioners/plaintiffs contended that the present amendment which is sought to incorporate the plea of readiness and willingness to perform the part of the plaintiffs and that they are ready with the balance amount, does not amount to introducing a new cause of action and their specific non-mention in the plaint is due to accidental slip or a typographical error. In fact, the plaintiff who was examined as P.W.1 has categorically deposed about his readiness and willing to perform him part of contract and the legal notices issued prior to filing of the suit also establish the same. Further, the defendants also had opportunity to cross-examine on this aspect. Therefore, as the defendants had ample opportunity, it cannot be said that any prejudice is caused to them by allowing the present amendment. He further contended that these facts go to show that the plaintiffs’ failure to take the specific plea as required under Section 16( c ) of the Specific Relief Act is despite diligence on their part and in view of proviso to Rule 17 of Order 6 of C.P.C., the court below ought to have allowed the amendment. 7. Relying on the judgment of the Apex Court reported in GAJANAN J.JOSHI v. PRABHAKAR M.KALWAR[1], he contended that by the present amendment, the plaintiffs wants to complete the cause of action for specific performance, for which the relief had already been prayed for and the absence of pleading as required under Section 16( c ) of the Act, was due to accidental slip or typographical error and by the present amendment, the plaintiffs want to clarify the same. Therefore, no prejudice would be caused to the defendants and hence the same has to be allowed. He contended that the cause of the action in the present suit centers around the inaction on the part of the defendants in performing their part of the contract and absence of plea under Section 16 ( c ), is not fatal and it can be permitted to be inserted by way of amendment. In support of this contention, he relied on the judgment of the Apex Court reported in LAKHI RAM v. TRIKHA RAM[2]. He contended that the present amendment is necessary to resolve the present controversy and there is no change in cause of action or prejudice and, therefore, the same has to be allowed. In support of this contention, he relied on the judgment of the Apex Court reported in REVAJEETU BUILDERS & DEVELOPERS v. NARAYANASWAMY & SONS[3]. He vehemently contended that even if the condition of “ due diligence” as prescribed under proviso to Rule 17 of Order 6 is not satisfied, in deserving cases, the court can allow delayed amendments, since the same is necessary for resolving the present contrary and the foundation of which is already there in the pleadings and evidence. To buttress this argument, he relied on the judgment of the Apex Court reported in CHANDER KANTA BANSAL v. RAJINDER SINGH ANAND[4]. He contended that mere delay in seeking for amendment cannot be a ground for rejecting the prayer sought for and no straitjacket formula can be laid. To support this contention, he placed reliance on the judgment of the Apex Court reported in SAMPATH KUMAR v. AYYAKANNU[5]. With these contentions, the learned counsel sought to set aside the impugned order and allow the I.A. and thereby permit the petitioners to amend the plaint by incorporating the plea with regard to their readiness and willingness to perform their part of the contract and that they are ready with the balance consideration. 8. On the other hand, the learned counsel for the respondents/defendants supporting the impugned order contended that by allowing the amendment, it amounts to introducing a new plea and it causes serious prejudice to the defence taken by the defendants. He contended that after the closure of the arguments and when the defendants filed written arguments that specific averments as required under Section 16 ( c ) of Specific Relief Act, were not taken, the plaintiffs taking the clue from the same and to fill up the lacunae, filed the present I.A. for amendment. He stated that relief of specific performance is a discretionary relief under Section 20 of the Specific Relief Act and if the specific plea with regard to readiness and willingness on the part of the plaintiffs is not averred and proved, under Section 16( c ) the plaintiffs are not entitled to the discretionary relief and, therefore, on this ground alone the suit is liable to be dismissed. Therefore, such valuable legal defence is sought to be defeated by filing the present amendment petition and if the same is allowed, it will cause prejudice to the case of the defendants. He contended that pre-trial amendments, the court can allow liberally, but post trial amendments, that too after the closure of evidence and matter posted for arguments, the court cannot allow amendments, which are filed to introduce new plea and cause prejudice to the defence. He contended that in the present case, as per the proviso to Rule 17 of Order 6, the petitioners have to satisfy that despite their due diligence, they could not raise the plea before the commencement of trial and unless the same is satisfied, the court cannot allow amendment. In the present case, the only ground that is sought to be urged is typographical error, which at any stretch of imagination would constitute ‘due diligence’ and hence the trial court rightly rejected the prayer sought for by the petitioners. In support of his contentions, the learned counsel relied on the judgment of this court reported in UNITED PIONEER SOCIETY vs. MRS. CHAND BEEDI[6] and judgment of the Apex Court in RAJKUMAR GURAWARA v. S.K.SARWAGI & CO (P) LTD.[7]. He contended that in the judgments relied on by the counsel for the petitioners, the proviso to Rule 17 of Order 6 of C.P.C. was not considered and the most of the judgments were dealing with Order 6 Rule 17 prior to 2002 C.P.C. amendments, prior to which there was no proviso to Rule 17 of Order 6 and hence the said judgments are not applicable to the facts of the present case. With these averments the revision petition was sought to be dismissed, by confirming the impugned order of the court below. 9. In view of the above rival contentions, the point that arises for my consideration is whether the amendment sought for by the plaintiffs can be allowed and the impugned order warrants inference? 10. The plaintiffs filed the suit for specific performance of contract and alleged inaction on the part of defendants in executing the registered sale deed. As per the averments on record, P.W.1 has deposed about his readiness and willingness to perform his part of the contract and even in the legal notice issued prior to the filing of the suit, this fact was mentioned to the defendants. From this it is clear that the controversy is centering around the issue with regard to execution of sale deed in favour of the plaintiffs for the subject property by the defendants. As the readiness and willingness is mentioned in the notice, which was issued prior to the filing of the suit, I am of the view that allowing the present amendment, will not amount to introducing new case or changing the nature of suit and the defendants also will not be taken to surprise and moreover both the parties have adduced evidence on this aspect. From a perusal of the impugned order, it could be seen that the trial court has not considered this aspect and, erroneously held that the present amendment will amount to introduction of new case. 11. At this juncture, it is necessary to note the facts and conclusions of the Apex Court in LAKHI RAM v. TRIKHAN RAM (2 supra). The facts in the said case disclose that the plaintiff therein filed the suit for specific performance of agreement of sale and the suit was decreed. In the appeal, the defendants have contended that the suit was barred by Section 16( c ) of the Act, as the plaintiff did not aver in the plaint that he was ready and willing to perform his part of the contract. Pursuant to the said contention, the plaintiffs filed petition under Order 6, Rule 17 of C.P.C. for amendment of the plaint for introduction of the averment with regard to readiness and willingness to perform their part of the contract, as required under Section 16 ( c ) of the Act. The lower appellate court allowed the amendment and the High Court set aside the same and the matter was carried to Apex Court. The Apex Court, while confirming the order of the lower appellate court, held that the amendment inserting the relevant averment under Section 16( c ) of the Act, does not change the cause of action. The relevant portion is extracted as under: “7. Having considered these rival contentions, in our view, the appeal could be disposed of on the first point canvassed by learned counsel for the appellant, namely, that amendment inserting the relevant averments under Section 16( c ) of the Specific Relief Act does not change the cause of action and would be a legally permissible exercise as laid down by this court in Gajanan {(1990)1 SCC 166}. The ratio of the aforesaid decision squarely applies to the facts of the present case and, therefore, the decision rendered by the first appellate court allowing such amendment could not have been found fault with by the High Court in the impugned judgment. Only on this short ground the appeal will have to be allowed. 12. In the above judgment, the Apex Court relied on its earlier decision in GAJANAN J.JOSHI v. PRABHAKAR M.KALWSAR (1 supra), where similar issue arise for consideration, where the defendant objected with regard to the maintainability of the suit on the ground of absence of specific averment that plaintiff was and had always been ready and willing to perform his part of the agreement. Though in the said case, the amendment sought was pre-trial, the Apex Court, following the earlier decisions, made certain observations, which are apt to note: “6. If these principles are to be followed, there is little doubt that the learned Judge was in error in rejecting the application for amendment made by the appellant. In the present case no fresh cause of action was sought to be introduced by the amendment applied for. All that the appellant sought to do was to complete the cause of action for specific performance for which relief he had already prayed. It was only that one averment required in law to be made in a plaint in a suit for specific performance in view of the provisions of sub-section ( c ) of Section 16 of the Specific Relief Act was not made, probably on account of some oversight or mistake of the lawyer who drafted the plaint and that error was sought to be rectified by the amendment applied for. There was no fresh cause of action sought to be introduced by the amendment and hence, no question of causing any injustice to the respondent on that account arose.” 13. From the above judgments, it is clear that when the amendment sought under Section 16 ( c ) of the Act, will not change the cause of action, then such amendment can be allowed. The facts of the case in Lakhi Ram (2 supra) disclose that the amendment therein was allowed at the stage of appeal. 14. The next vehement contention of the petitioner is that the pre-trial amendment can be allowed liberally and since the present amendment is sought at the stage of judgment, serious prejudice would be caused to the defendants and as per proviso to R.17 of Order 6, for allowing such amendment, the court shall come to the conclusion that in spite of due diligence, the plaintiff could not have raised the matter before the commencement of the trial and that the judgments (1 and 2 supra) were dealing with the cases filed prior to 2002 amendment i.e., before introduction of proviso to R.17 of Order 6. 15. In this regard, it is necessary to look Rule 17 of Order 6 of C.P.C. and the same is extracted as under: 17. Amendment of pleadings:-- The Court may 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 t he matter before the commencement of trial. 16. A reading of the first part of Rule 17 makes it clear that the court may allow amendment at any stage, in such manner and on such terms, if the proposed amendment is necessary for the purpose of determining the real question is controversy between the parties. In other words, the stress is ‘determining the real question in controversy’. But as per the proviso, after the commencement of trial, no application for amendment shall be allowed, 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. A combined reading of Rule 17 makes it clear that if the amendment is sought before the commencement of trial and if such amendment is necessary for deterring the real question in controversy between the parties, it can be allowed liberally on such terms, as may be just. But in case if the amendment is sought after the commencement of trial, the party shall satisfy the court that in spite of due diligence, he could not raise the matter before the commencement of trial. The Apex Court in CHANDER KANTA BANSAL v. RAJINDER SINGH ANAND (4 supra) considering the proviso to Rule 17 of Order 6, held as under: “12. With a view to shorten the litigation and speed up the trial of cases Rule 17 was omitted by amending Act 46 of 1999. This Rule has been on the statute for ages and there was hardly a suit or proceeding where this provision had not been used. That was the reason it evoked much controversy leading to protest all over the country. Thereafter, the Rule was resorted in its original form by amending Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to some extent. The new proviso lays down that no application for amendment shall be allowed after the 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. But whether a party has acted with due diligence or not would depend upon the facts and circumstances of each case. This would, to some extent, limit the scope of amendment to pleadings, but would still vest enough powers in courts to deal with the unforeseen situations whenever they arise. 13. The entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the other’s case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult to any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise the plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases.” 17. In another judgment in SAMPATH KUMAR v. AYYAKANNU (5 supra), the Apex Court held as under: “9. Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In the former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter case, the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No straitjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.” 18. In the judgment of the Apex Court reported in RAJKUMAR GURAWARA v. S.K.SARWAGI & CO.(P) LTD. (7 supra), it was held as under: “18. . . . It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. . . 19. From a reading of the above judgments of the Apex Court, it is clear that as per the proviso to Rule 17 of Order 6, whether the party has acted with due diligence or not, would depend upon facts and circumstances of each case and though the proviso would limit the scope of amendments to pleadings after the commencement of trial, still enough power is vested with the court to deal with the unforeseen situations whenever they arise. Further, no straitjacket formula can be laid and that mere delay cannot be a ground for refusing a prayer for amendment and that the court has to satisfy whether the amendment sought would change the nature of suit, introduce a new cause of action and prejudices the other party and that amendment if allowed, would defeat the law of limitation. 20. The contention of the counsel for the respondents is that by allowing the present amendment, the defendants would be deprived to raise the defence under Section 16 ( c ) of the Act and hence much prejudice will be caused to the defendant and the same cannot be compensated in terms of money, since it goes to the route of the matter. 21. As already noticed above, as per the submissions of counsel, which are not disputed that the plaintiffs have issued notice prior to the filing of the suit stating that they are ready and willing to perform their part of the contract and even in the evidence, they have deposed to this effect and there was cross-examination, and the controversy was centering round the inaction on the part of the vendor in complying with the agreement. Therefore, the issue now sought by way of amendment is not new to the defendants and there is also no change in the cause of action. Further, the plaintiffs are not seeking to lead any evidence on this aspect. There is omission in the plaint to mention about the legal plea as required under Section 16( c ) of the Act. The explanation of the petitioner is that it was a typographical error to mention the same and it was an accidental slip. 21. Having regard to the present set of facts and circumstances and considering the law laid down by the Apex Court, in the above judgments, I am of the considered view that since there is no change in cause of action or introduction of any new case and as there is no prejudice to the respondents, since they are already aware of the case of the plaintiffs and there was evidence to that effect and there was also cross-examination of P.W.1 on this aspect, and hence the proposed amendment