ORDER
S.B. Mhase, J.
1. This civil revision application has been filed by the petitioner challenging the order dated 16-6-1990 passed by the Second Joint Civil Judge, Senior Division, Latur, below Exhibit 26 in Regular Civil Suit No. 1276 of 1986.
2. Application at Exhibit 26 was filed by the plaintiff for amending the plaint by invoking the powers under O. VI, R. 17, C.P.C., so as to include theclaim for damages to the tune of Rs. 75,000.00; and in order to grant this relief, the necessary amendments giving the particulars of the damages sustained have been proposed in paragraphs 16-A, 18-A, 24-A and 26-A. All these paragraphs point out the particulars of the damages sustained by the plaintiff: and the prayer clause (3-A) which is proposed gives the final figure of the damages sustained by the plaintiff. This amendment application was rejected by the trial Court on a ground that the cause of action for the suit, inspite of the proposed amendments, is dt. 20-10-1986, and, therefore, on the date on which the proposed amendment is tried to be introduced, it is barred by limitation.
3. The question, which, therefore, arises is, as to whether the proposed amendment should be allowed or not.
4. For this purpose, it is necessary to look into the plaint. The learned Counsel for the petitioner submitted a copy of the plaint.
On going through the plaint, it is revealed that the plaintiff have filled in the tender to supply M.S. Rounds I.S. 226 Steel Bars of various sizes, to the total quantity of 100 metric tons. It was submitted on or about 20-10-1986, The plaintiff alleged that the said tender, being the lowest one, was accepted and, accordingly, the Executive Engineer for the Environmental Engineering Works Division, Latur, has communicated to the office of defendant No. 2, It is further revealed that, by letter, Outward No. 5506, dated 28-10-1986, the tender was approved; and, therefore, the plaintiff was waiting for the work order. However, instead of issuing the work order; suddenly, a fresh tender for the very same item was issued, without cancelling the tender of the present plaintiff. Therefore, the suit was filed that defendant Nos. 2 and 3 should be restrained from opening fresh tenders on 17-11-1986 and issuing any work order in favour of the bidders participating therein. The plaintiff further prayed that defendants Nos. 2 and 3 be directed by a mandate to issue the work order in favour of the plaintiff for supply of Steel Bars of 100 Metric Tons quantity, as per the Tender Notice No. 7/1985-86.
5. Thus, it will be evident on reading the plaint and the prayer clauses that the plaintiff was seeking a specific performance of the agreement, on the basis of the tender, which he filled in and which was accepted, culminating into the concluded contract; and secondly, on having found that the concluded contract is in force, the said work should not be allotted to any other person.
6. It appears that there was no temporary injunction and, therefore, the work was allotted to some other person. Under these circumstances, the prayer of prohibitory injunction having become infructuous, and the specific performance of the contract having become difficult to be granted, the plaintiff preferred to effect an amendment, so as to incorporate the claim of damages.
7. Section 21 of the Specific Relief Act, 1963, to the extent material, is as follows;
21. Power to award compensation in certain cases---(1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance.
(2) If, in any such suit, the Court decides that specific performance ought not to be granted, but that there is a contract between the partieswhich has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly.
(3) If, in any such suit, the Court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly,
(5) He compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint :
provided that where the plaintiff has not claimed any such compensation 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 compensation.
Explanation---The circumstance that the contract has become incapable of specific performance does not preclude the Court from exercising the jurisdiction conferred by this section.
8. Thus, these provisions, make it clear that in a suit for specific performance of the contract, the plaintiff, apart from asking for the specific performance of the contract, can also ask for the compensation, in addition to, or, in substitution of, the performance. In the present case, as stated earlier, having found that the specific performance has become difficult, it appears that, in substitution of the specific performance of the contract, the claim for damages is tried to be included. Apart from that, sub-sections (2) and (3) of section 21 of the Specific Relief Act also permit the Court to grant the compensation, either while rejecting the specific performance on having found that the contract was there; and/or, while granting the specific performance, but having found that the breach has taken place. Therefore, the claim for damages flows from the very cause of action on which the specific performance of the contract was prayed for.
9. If the plaint and the proposed amendments are perused together, it will be revealed that no fresh cause of action has been pleaded or tried to be introduced by the proposed amendments. Only the particulars about the damages and further prayer stating the total damages have been proposed by the present petitioner. So far as the basic facts which constituted the cause of action are concerned, there is no change whatsoever brought about by the petitioner by his amendments. Therefore, when such amendments are tried to be introduced, the Court shall grant such amendments.
10. In A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation, : [1966]1SCR796 , it has been observed that in the matter of allowing amendment of pleading the general rule 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 the new cause of action is barred. Where, however, the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts, the amendment is to be allowed even after expiry of the statutory period of limitation. On the facts of that case, the Apex Court observed that the amendment ought to be allowed. The suit there was on the contract seeking only the interpretation of the clause for a decision of rights of the parties under it and for no other purpose. The cause of action was the contract itself on which the suit was based. The amendment sought to introduce a claim basedon the same cause of action, namely, the same contract and introduced no new case or facts.
11. In the present case also, the amendment sought is based on the contract; and earlier, on the basis of contract, specific performance was asked; and the claim for damages arises as a result of breach of the contract and/or grant of specific performance becoming difficult, etc. Therefore, no new set of facts are introduced, but the very cause of action is the cause of action for the proposed amendment too. I find that the facts of the present case are squarely within the ambit of the facts, which have been considered by the Apex Court in the decision, cited supra; and, therefore, the amendment should have been allowed by the Court below,
12. Further, it is necessary to make a reference to a decision of this Court in Banu w/o Kutubuddin Sulemanji Vimanwala and another v. Kutubuddin Sulemanji Vimanwala, : 1995(2)BomCR110 , wherein the claim for time-barred amendment has been considered by this Court. In paragraph 40, it has been observed thus :
'40. Now the question is as to what is the effect of the amendment. The normal rule is that amendment always relates back to the date of suit.
In : AIR1961Bom292 , All India Reporter Ltd. v. Ramchandra, it was a case where amendment has been allowed though the amended claim was barred by limitation. It is observed that the amendment relates back to the date of suit. It is further pointed out that once amendment is allowed, the question of limitation of the proposed amendment cannot be reserved, that means even if there is an observation that the amendment is granted subject to the limitation still the amendment relates back to the date of suit and it is not subject to any reservation as such. If, however, the amendment is barred by limitation even on the date of filing of the original plaint, the matter will be different.
Then we have also a decision of a Division Bench of this Court in 1986 BL.R. 409, R.N. Shetty v. Syndicate Bank. It has been observed that time barred amendment had been granted subject to limitation. But it was observed that even though such a conditional order had been passed, the amendment relates back to the date of suit. What the Court has to find out is whether the amended plaint was barred by limitation not on the date of actual amendment but on the date the original plaint was filed.
In view of the above authorities, I may conclude that the Court has power and jurisdiction to grant even a time barred amendment though the Court may be slow to grant such an amendment. Normally, the Court should not grant time barred amendment. But in exceptional circumstances, the Court has such a power to grant time barred amendment. When such amendment is granted, it cannot be made subject to limitation. Automatically, the amendment relates back to the date of suit. Even if the defendant takes a plea of limitation after the amendment is carried out, the question to be considered is whether the claim is barred by limitation as on the filing of the original plaint and not when the amendment is carried out. In the present case though the amendment was carried out in 1993 it relates back to the date of suit namely, 1986, but the cause of action arose in 1984. Under Article 113 of the Limitation Act, the suit should be filed within three years and, therefore, it has to be held that the suit is well within time.'
13. Therefore, the net result is, first, that if the proposed amendment is based on the same cause of action, which is disclosed in the suit, no matter even if it is barred, it shall be allowed. Not only that, but in the exceptional circumstances, the Court can grant the time barred amendments and when such amendments are granted, those amendments relate back to the date of the suit and the question of limitation is not open as on the date of amendment even if the order granting the amendment has been passed subject to the limitation. Under these circumstances, the point of limitation, which requires to be considered, is, whether, on the date of the suit, the cause of action was barred; and not the barring of the proposed amendment on the date when it was introduced.
14. Having found the law thus, 1 find that this is a case-of exceptional circumstance, because, the plaintiff approached initially with an expectation that he will get the prohibitory injunction; and thereafter the specific performance. However, as the facts developed pending the suit, as a result of not getting the interim relief, the defendants proceeded to grant the work of the contract to some other person; and thereby, the amendment to the suit became necessary. In fact, as a result of the subsequent instance also, the amendment has become necessary, and, therefore, I find that the amendment should have been granted by the Court below. The order rejecting the amendment application is not proper and legal one.
15. In the result, this civil revision application is allowed. The order, dated 16-6-1990, passed by the trial Court, rejecting application, Exhibit 26, in Regular Civil Suit No. 1276 of 1986, is hereby quashed and set aside; and the said application, Exhibit 26, is hereby allowed. The petitioner-plaintiff is directed to carry out the amendment within a period of 14 days from the date of receipt of writ of this Court in the trial Court. Rule made absolute accordingly. No order as to costs.
16. Civil revision application allowed.