IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.26 of 2011 Judgment reserved on:13.6.2011. Date of decision:15.6.2011 Raghunath Singh and another ….Petitioners. Versus Manjit Singh and others ….Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes For the petitioners: Mr.Anand Sharma, Advocate For the respondent: Mr.Jagan Nath, counsel for respondents No. 1 to 3. Mr.Ajay Kumar, counsel for respondent No.5 to 7. _________________________________________________ Deepak Gupta, J. 1. This petition under Article 227 of the Constitution of India is directed against the order dated 30.10.2010 passed by the learned Civil Judge (Junior Division), Court No.3, Una whereby he rejected the application filed by the plaintiffs for amendment of the plaint. 2. Briefly stated, the facts of the case are that the plaintiffs filed a suit in December, 2000 for specific performance of contract. In para 1 of the plaint details of the contract were given. Para 2 of the plaint reads as follows: “2.That on 20.7.2000 the plaintiff remained present before the office of Sub Registrar Sultanpur Lodhi alongwith remaining sale consideration to get the sale 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 deed executed. But the defendants 1 to 3 did not turn- up.” 3. In para 3 of the plaint it was averred that defendants 1 to 3 when requested to execute the sale deed in favour of the plaintiffs, they told the plaintiffs that defendant No.8, as attorney of defendants 1 to 3, had executed sale deeds of the suit property in favour of defendants 4 to 7. In the plaint itself it was prayed that the said sale deeds, if any, are fraudulent, null and void, inoperative and did not affect the agreements between the parties. However, in the prayer clause no prayer was made for declaring these sale deeds to be null and void. 4. The defendants 4 to 7 filed written statement on 11.11.2002 in which they clearly stated that defendants 1 to 3 and 8 had sold the entire suit property vide separate sale deeds executed in favour of defendants 4 to 7 on 6.9.1999, 7.9.1999 and 22.9.1999. 5. The parties led evidence and on 17.6.2010 the plaintiffs filed an application for amendment of the plaint. The first amendment they prayed was that they may be specifically permitted to plead that they were always ready and willing and are still ready and willing to perform their part of the contract. The second amendment sought was 3 that now the plaintiffs want to specifically claim a relief that the sale deeds executed in favour of defendants 4 to 7 were wrong, illegal and null and void and defendants 4 to 7 be also directed to join in execution/registration of the sale deeds in favour of the plaintiffs. 6. The learned trial Court rejected this application by holding that in a suit for specific performance of contract it was a sine qua non to plead willingness and readiness to perform their part of the contract on behalf of the plaintiffs and therefore the plaintiffs having not pleaded this, they could not be permitted to make these averments 10 years later especially since the trial had commenced. As far as the second part of the amendment was concerned, the learned trial Court held that it would change the very nature of the suit and therefore could not be allowed. 7. Though I am not in agreement with the reasoning given by the learned trial Court, the final order appears to be correct. The amended provisions of the Civil Procedure Code which prohibit any amendment after commencement of the trial unless it is shown that the party despite exercising due diligence could not plead certain facts would not apply to suits filed before the 4 year 2000. The second amendment sought, in my view would not change the nature of the suit. 8. Having held so, I am of the opinion that as far as the first amendment is concerned the same is not at all necessary in the present case. Para 2 has already been quoted above. It clearly shows that the plaintiffs were ready and willing to perform their part of the contract before the suit was filed. In para 4 of the plaint it is clearly mentioned that the plaintiffs are ready and willing to purchase the suit land on payment of balance sale consideration of Rs.1,75,000/-. The words, ‘ready and willing to perform the contract’ do not have to be repeated in the plaint. It is the sum and substance of the plaint which has to be taken into consideration and the sum and substance of the plaint shows that the plaintiffs in their suit have stated that they always were and are still ready with the money and are willing to perform their part of the contract. Therefore, this amendment is not necessary and this issue can be decided on the basis of the evidence led by the parties. 9. Coming to the second amendment, it is apparent that even when the suit was filed in the year 2000, the plaintiffs knew that the defendants 1 to 5 3 & 8 had executed sale deeds in favour of defendants 4 to 7 who were arrayed as defendants but no prayer was made that the said sale deeds may be declared inoperative. Even after defendants 4 to 7 filed written statement in the year 2002 giving details of the sale deeds, no action was taken by the plaintiffs who kept silent till the year 2010. The sale deeds were executed in the year 1999 and even assuming that the plaintiffs did not have complete knowledge of the same, in the year 2002 the defendants gave full details of the sale deeds and the plaintiffs should have within the period of limitation challenged the validity of the said sale deeds. These sale deeds were executed prior to the filing of the suit and therefore a specific challenge had to be made to these sale deeds and a prayer made that the sale deeds be set-aside. Limitation for this purpose is three years and now after almost a decade the plaintiffs cannot be permitted to sideline the law of limitation and they cannot be permitted to pray that the sale deeds are null and void and not binding on them. 10. A number of judgments have been cited before me. The Apex A.K. Gupta and sons Ltd. vs. 6 Damodar Valley Corporation, AIR 1967 SC 96, held as follows: “7. It is not in dispute that at the date of the application for amendment, a suit for a money claim under the contract was barred. The general rule no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred :” 11. Similar matter came up for consideration before the Apex Court in M/s.Ganesh Trading Co. vs. Moji Ram, AIR 1978 SC 484 wherein the Apex Court held as follows: “15……Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions, such as payment of either any additional court fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings.” 12. The Apex Court in K.Raheja Constructions Ltd. vs. Alliance Ministries and others, AIR 1995 SC 1768, also dealt with the same question. In that case the plaintiffs had submitted that they were only adding a relief and facts had already been set out in the plaint. The Apex Court held that the plaintiffs by allowing a period of 7 years to lapse from the filing of the suit till the date of filing of the application could not be allowed to amend the suit because this would defeat the valuable right of limitation which had accrued to the defendant. 7 13. This point has been reiterated by the Apex Court in Ravajeetu Builders and Developers vs. Narayanaswamy and sons and others, (2009) 10 SCC 84, wherein Hon’ble Justice Dalveer Bhandari speaking for the Court has dealt with in great detail the legislative history, objects and reasons of Order 6 Rule 17 and the amendments made to it from time to time. The Court observed that the provisions of Order 6 Rule 17 have been used time and again to delay judicial proceedings. The Apex Court directed that any Court dealing with an application for amendment must scientifically evaluate the reasons, purpose and effect of the amendments and these must be taken into consideration while awarding costs. The Apex Court had this to say on amendments which would lead to introducing reliefs which were barred by limitation: “38. In another leading English case Weldon v. Neal(1880) 19 QBD 394: 56 LJ QB 621, A filed a suit against B for damages for slander. A thereafter applied for leave to amend the plaint by adding fresh claims in respect of assault and false imprisonment. On the date of the application, those claims were barred by limitation though they were within the period of limitation on the date of filing the suit. The amendment was refused since the effect of granting it would be to take away from B the legal right (the defence under the law of limitation) and thus would cause prejudice to him. 39. The rule, however, is not a universal one and under certain circumstances, such an amendment may be allowed by the court notwithstanding the law of limitation. The fact that the 8 claim is barred by 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.” 14. Sh.Anand Sharma has also relied upon the judgment of the Apex Court in Surender Kumar Sharma vs. Makhan Singh, (2009) 10 SCC 626. In my view that judgment deals with delayed application and not with a specific issue where the relief sought to be introduced is time barred. 15. The Apex Court has clearly laid down that normally a plaintiff cannot be permitted to amend the plaint by adding a fresh claim or relief if on the date when the application for amendment is moved that claim or relief is barred by the law of limitation. When a claim gets time barred a valuable right accrues to the defendant. He can now defeat the claim on the technical ground of limitation. Can this valuable right which has accrued to the defendant be taken away by permitting an amendment at such a belated stage? Normally this should not be done and this is one major factor which has to be taken into consideration. But when the amendment is required in the interest of justice then limitation may not come in the way. 9 16. In the present case, the plaintiffs in their application for amendment have not given any reason why they could not seek the second relief at the stage when the suit was filed. Even more important is the fact that after the written statement was filed in the year 2002 the plaintiffs remained silent for 8 years and did not take any steps to challenge the validity of the sale deeds. Now after 8 years when the suit is at its final stages the plaintiffs, in my view, cannot be permitted to amend the plaint. It is more than apparent that the plaintiffs on one pretext or the other are trying to delay the disposal of the suit. This cannot be permitted. 17. In view of the above discussion, I find no merit in the petition which is accordingly dismissed. The learned trial Court is directed to decide the suit which was filed in the year 2000 at the earliest and in any event not later than 31.12.2011. The learned trial Court may even fix the case on day to day basis but shall ensure that the same is disposed of at the earliest. The parties through their learned counsel are directed to appear before the learned trial Court on 25th July, 2011. June 15, 2011 (Deepak Gupta) PV Judge