THE HON’BLE SRI JUSTICE V.V.S. RAO CIVIL REVISION PETITION No.2783 of 2009 06.11.2009 Between: Sri Meppelli Bhaskara Rao (Died) his L.Rs And others … Petitioners AND Sri Pilli Somaraju (Died) his L.Rs And other … Respondents THE HON’BLE SRI JUSTICE V.V.S. RAO CIVIL REVISION PETITION No.2783 of 2009 ORDER: Pilli Somaraju filed O.S.No.234 of 2003 on the file of Additional Senior Civil Judge (Fast Track Court), Kovvuru, for recovery of a sum of Rs.1,65,899.21 ps. During the pendency of the suit, he filed I.A.No.1958 of 2005 for amendment of the suit/plaint and sought relief of specific performance of agreement of sale dated 02.6.2001. When the application was pending, Somaraju died and his wife, son and daughter filed I.A.No.117 of 2008 to come on record as legal representative of deceased sole plaintiff. It was ordered and respondents 1 to 3 herein were impleaded as plaintiffs. Subsequent thereto by an order dated 30.5.2009 trial Court allowed the amendment aggrieved by which the defendant filed instant revision petition. The suit was filed alleging as follows. First defendant is brother of wife of Somaraju and defendants 2 to 4 are legal representatives[1]. Defendants offered to sell suit schedule property admeasuring Acs.2.00 in R.S.No.344 situated at Laxmipuram village of Kovvur Mandal, for a sum of Rs.1,13,000/-, that plaintiff paid an amount of Rs.20,000/- towards Earnest Money Deposit on 02.6.2001, that defendants jointly executed an unregistered sale deed and agreed to register the same within four months or immediately after payment of balance sale consideration by plaintiff. On 01.10.2001, plaintiff paid balance amount of Rs.1,10,000/-, which was endorsed on the agreement of sale. Defendants agreed to execute register sale deed on 30.4.2002 but in spite of repeated demands, did not do so. First defendant also borrowed Rs.50,000/- on 08.10.2001 and another sum of Rs.50,000/- on 13.10.2001 executing two promissory notes. When the amount was not paid, plaintiff filed O.S.No.193 of 2003 for recovery of Rs.1,00,000/-. First defendant filed O.S.No.173 of 2002 for injunction against the plaintiff. In spite of intervention of elders, first defendant failed to keep up his obligations and plaintiff filed the suit for recovery of money as he was under mistaken impression that based on an unregistered agreement of sale, suit for specific performance cannot be filed. In the application for amendment being I.A.No.1958 of 2005, plaintiff pleaded that by mistake he could not seek relief of specific performance of agreement of sale, and accordingly sought for amendment. The same was opposed by the defendants contending that plaintiff is estopped from taking different plea. The trial Court having considered the matter came to the conclusion that no new cause of action would arise, that issue of limitation is not involved and that no prejudice would be caused to the defendant. On these conclusions, the amendment was allowed. Assailing these findings, learned Counsel for petitioners/defendants submits that the amendment permitted by lower Court would alter the nature of the suit, and therefore, amendment is not permissible under Order VI Rule 17 of Code of Civil Procedure, 1908. Secondly he submits that when the suit was filed in 2003, amendment is preferred in 2005, and therefore, Court below erred in allowing the amendment. Per contra, learned Counsel for respondents/plaintiffs submits that Somaraju got issued notice demanding execution of sale deed in discharge of defendants’ obligation to perform their part of contract, that under mistaken impression that Section 47 of the Registration Act, 1908, bars relief of specific performance of unregistered agreement of sale such a relief is not sought, and such omission in the drafting cannot disentitle plaintiffs from seeking proper relief by amending the plaint. He placed reliance on Estralla Rubber v Dass Estate (P) Ltd[2], Fritiz T.M.Clement v Sudhakaran Nadar[3] and Raj Kumar v D.Kaur Sethi[4]. The background of the case narrated herein above would show that though the plaintiff complied with necessary pre requisites for filing a suit for specific performance, under mistaken impression that an agreement of sale requires registration the relief of specific performance was not sought. Indeed, it is certainly a mistake. Though Section 47 of Registration Act, inter alia, prohibits reception of unregistered document, proviso thereunder carves out an exception in relation to an unregistered document effecting movable property and the same can be received as evidence in a suit for performance under Specific Relief Act, 1963. Realizing this, application was moved by plaintiff. The Courts have held that ordinarily the Court cannot take a rigid view when such eventuality arises in a suit due to inadvertence on the part of draftsman or negligence of draftsman of plaint. In Estralla Rubber (supra), the Supreme Court after referring to B.K.Narayana Pillai v Parameswaran Pillai[5] explained the legal position as under. It is fairly settled in law that the amendment of pleadings under Order 6, Rule 17 is to be allowed if such an amendment is required for proper and effective adjudication of controversy between the parties and to avoid multiplicity of judicial proceedings, subject to certain conditions such as allowing amendment should not result in injustice to the other side; normally a clear admission made conferring certain right on a plaintiff is not allowed to be withdrawn by way of amendment by a defendant resulting in prejudice to such a right of plaintiff, depending on facts and circumstances of a given case. In certain situations a time barred claim cannot be allowed to be raised by proposing an amendment to take away valuable accrued right of a party. However, mere delay in making an amendment application itself is not enough to refuse amendment, as the delay can be compensated in terms of money. Amendment is to be allowed when it does not cost serious prejudice to the opposite side. I n Fritiz T.M. Clement (supra), plaintiffs filed the suit for recovery of money. At the stage of trial, they sought amendment stating that omissions and mistakes crept into the plaint inadvertently on account of wrong advice given by their Counsel. The trial Court rejected the application on the ground of delay, which was affirmed by the High Court in the revision. The Supreme Court considered the question of prejudice to defendants by allowing the plaintiff to rectify the omissions and mistakes. While allowing the appeal, Supreme Court made the following observations. Therefore, the grounds of rejection of amendments are legally unjustified and based on non-application of mind to the exact nature of amendments. We reiterate that no prejudice could possibly be caused to the respondents. In fact, by reason of clarification and elaboration of the appellant- plaintiffs' claim before the trial has started, the respondents- defendants will be in a better position to know the exact case of the plaintiffs and proceed accordingly. On the other hand, it would result in miscarriage of justice if the amendments are not allowed and the appellants-plaintiffs are compelled to go to trial on the basis of an ill-drafted plaint with cryptic and inaccurate averments. Raj Kumar (supra) is a case where a suit was filed for permanent injunction alleging that the plaintiff was agreement holder and that the defendant was likely to alienate the suit property. The interlocutory injunction was ordered on the ground of maintainability in the absence of a suit for specific performance. Raj Kumar then moved an application for amendment of plaint to convert it into a suit for specific performance of agreement. The same was allowed. Subsequently realizing that the plaint – perhaps due to negligence of draftsman of plaint; did not incorporate necessary pleading that plaintiff was still ready and willing to perform his part of the contract, another application was filed for amendment. The same was allowed and amended plaint was filed. The High Court however allowed the revision petition of defendant, aggrieved by which the plaintiff approached Supreme Court. The Supreme Court allowed the appeal observing as under. “… … … in Pirgonda Hongonda Patil v Kalgonda Shidgonda Patil[6], it was held by this Court that all amendments ought to be allowed which satisfy the two conditions: (a) not working injustice to the other side,and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. It was further observed. “Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim” In our view, therefore, the trial Court was justified in permitting the second amendment and the High Court was not right in allowing the revision petition there against for the reason that the suit had already been converted into a suit under the Specific Relief Act within the period of limitation and thereafter it is only the missing averment which was introduced by para 5A. There was no question of not complying the law of limitation, as far as the 2nd amended plaint was concerned. The High Court was also not justified in not recalling the order. In the present case, plaintiffs/respondents alleged that defendants executed agreement of sale in their favour. They also alleged that they issued a notice demanding execution of sale deed in vain. Instead of filing suit for specific performance of agreement of sale, under mistaken impression that Section 47 of Registration Act bars a suit for specific performance based on an unregistered agreement of sale, plaintiff filed suit for recovery of money. Having realized the mistake, they sought amendment to convert the suit into a suit for specific performance of agreement of sale. In this background, if the amendment is refused, it would not only result in multiplicity of proceedings but also result in miscarriage of justice. By allowing the amendment defendants are not prejudiced in the sense all the defences are available to them and if so advised they may even file additional written statement with leave of the Court. Therefore, this Court does not find any grave error apparent on the face of record to warrant interference in the matter. In the result, for the above reasons, the civil revision petition fails and is accordingly dismissed. _______________ (V.V.S.RAO,J) November , 2009 YS [1] During the pendency, first defendant died and fourth petitioner herein was impleaded as legal representative in addition to defendants 2 and 3. [2] (2001) 8 SCC 97 : 2001(7) Supreme 53 [3] (2002) 3 SCC 605 : AIR 2002 SC 1148 : 2002(2) Supreme 149 [4] (2005) 9 SCC 304 : AIR 2005 SC 1592 : 2005(1) SRJ 303 [5] (2000) 1 SCC 712 [6] AIR 1957 SC 363