LexGAJANAN JAIKISHAN JOSHI versus PRABHAKAR MOHANLAL KALWAR
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A GAJANAN JAIKISHAN JOSHI v. PRABHAKAR MOHANLAL KALWAR DECEMBER 13, 1989 B [E.S. VENKATARAMIAB, CJ. AND M.H. KANIA, J.) Civil Procedure Code, 1908: Order VI Rule 17-P/aint- Amendment of-When to be permitted. Specific Relief Act, 1963: Section 16(c)-Suit for specific per- C formance-Amendment of plaint-Permissibility of. For selling an immovable property, respondent entered into an agreement with the appellant. Appellant paid part of the consideration and he was put in possession of the property. Since the respondent failed to execute the registered sale-deed, the appellant filed a suit. D There was no specific averment in the suit that the appellant was and had always been ready and willing to perform bis part of the agreement. Respondent contended inter-alia that the suit was not maintain- able for non-compliance with the provisions of Section 16(c) of the Specific Relief Act, 1%3. This issue was directed to be tried as a pre- E liminary issue. At that stage, the appellant applied for leave to amend the plaint by incorporating an averment that he was always and had been ready and willing to perform his part of the agreement. The trial court rejected the application. The revision petition filed in the High Court was dis\Dissed. The F High Court took the view that the application for amendment was filed beyond the period of limitation and cannot be granted, as a vested interest of the respondent would be disturbed. This appeal is against the judgment of the High Conrt. G Allowing the appeal, this Court, HELD: I. I Amendments should be refnsed 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 H -general rule that, where a plaintiff seeks to amend by setting up a fresh 474 G.L. JOSHI v. P.M. KALWAR [KANIA, J.] 475 claim in respect of a cause of action which, since the institution of the· snit, had become barred by limitation, the amendment must be refused; A 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. Courts would as a rule, decline _to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of B the discretion as to whether application for amendment should be granted and does not affect the power of the Court to order it, if that is required in the interest of justice. [477 A-DI 1.2 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 and add an averment which required to be added in view of the provisions of sub-section (c) of Section 16 of the Specific Relief Act. 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. l477E-F] Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and Ors., AIR 1957 SC 363 and L.J. Leach & Co. and Anr. v. Messrs Jardine Sk.inner & Co., AIR 1957 SC 357, relied on. c D Ouseph Varghese v. Joseph Aley & Ors., [1963] 2 SCC 539, E distinguished. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1638 of 1987. From the Judgment and Order dated 28.11.1986 of the p Karnataka High Court in C.R.P. No. 365 of 1984. S.B. Bhasme and A.S. Bhasme for the Appellant. R.S. Hegde and S.N. Bhat for the Respondent. The Judgment of the Court was delivered by KANIA, J. This is an appeal from a judgment and order of a learned Single Judge of the Karnataka High Court. G Only a few facts are necessary to appreciate the controversy H raised before us. A 476 SUPREME COURT REPORTS I 1989] Supp. 2 S.C.R. The appellant herein was the plaintiff in Original Suit No. 103 of 1981 in the Court of 2nd Additional Civil Judge, Belgaum. It was the case of the appellant in the plaint that on July 16, 1976 the respondent- defendant entered into an agreement in his favour for sale of the suit property comprising a shop and a bhatti room situated at Kirloskar Road, Belgaum City for a sum of Rs.20,000. The appellant paid to the B respondent as part consideration a sum of Rs.5,000 and pursuant to th
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