Judgment:
1. This is an application for amendment of the plaint filed at the instance of the plaintiff/appellant at the appellate stage. A suit for specific performance of an agreement for sate of land and structures described in the schedule of the plaint in terms of an agreement dated 17th November, 1993 was instituted by the plaintiff-appellant in the 3rd court of the Assistant District Judge, Alipore, which ended in dismissal. Before we proceed further, it may be kept on record that no objection was raised by the defendant respondent in the trial court as to the maintainability of the suit for specific performance of the contract for sale in the absence of the averments in the plaint that the plaintiff-appellant had performed or had always been ready and willing to perform the essential terms of the contract which were to be performed by him. The trial court proceeded with the trial of the suit and the defendant respondent fully participatedtherein without any objection either in his pleadings, evidence or arguments as to the form of pleading as noted hereinabove that is to say the defendant-respondent in the trial court did not raise the question that the plaint does not conform to the provisions as contained in section 16(c) of Specific Relief Act. From the judgment of the trial court, it also appears that the issue of maintainability of the suit was not pressed by the defendant-respondent. In the course of hearing of the present appeal, a question cropped up as to whether the plaintiff in his plaint has sufficiently averred his readiness and willingness in terms of scope, meaning and requirement of Clause (c) of section 16 of the Specific Relief Act. In the application for amendment of the plaint, the plaintiff appellant has however, alleged that although sufficient averments have been made by the plaintiff-appellant in the plaint and the evidence adduced in respect of section 16(c) of the Specific Relief Act for abundant caution this application for amendment is filled by the plaintiff-appellant.
2. This application for amendment of the plaint is heard in the presence of the learned counsel for the parties. According to Mr. Dasgupta, appearing on behalf of the plaintiff-appellant, the plaintiff appellant, even if it is taken that substantial averments in respect of section 16(c) of the Specific Relief Act have not been made by the plaintiff/appellant, he is still entitled to amend the plaint in appeal to incorporate the averments in terms of section 16(c) of the Specific Relief Act. Mr. Dasgupta, contended that such amendment neither shall invite the question of limitation nor shall change the nature and character of the suit. In support of this contention, Mr. Dasgupta has relied firstly on a decision of the Supreme Court in the case of Gajanand Jaikishan Joshi v. Prabhakar Mohanlal Kalwar reported in : (1990)1SCC166 and also on two Division Bench decisions of this court in the case of Barnik Roy @ Harekrishna Ray v. West Bengal Housing Board & Anr. reported in : AIR1985Cal362 and in the case of Byomkesh Banerjee v. Nani Gopal Banik reported in : AIR1987Cal92 . Mr. Dasgupta has also relied on a Gujrat High Court decision which is reported in 0065/1988 : AIR1988Guj42 (Rajya Tulsibhai Patel v. Benar Enterprises & Ors). This contention of Mr. Dasgupta was contested by Mr. Ghosal appearing on behalf of the defendant-respondent, Mr. Ghosal contended that the question of limitation shall automatically arise if the plaintiff had failed to aver or plead in the plaint that he was ready and willing or still ready and willing to perform his part of the contract in terms of section 16(c) of the Specific Relief Act. In support of this contention Mr. Ghoshal has relied on a Supreme Court decision in the case of M/s. Ganesh Trading Co. v. MoJi Ram reported in : [1978]2SCR614 . Mr. Ghosal particularly relied on the paragraph 5 of the Supreme Court decision in order to satisfy us that the question of limitation shall arise if the averments in terms of section 16(c) of the Specific Relief Act are not made in the plaint as the period of limitation for filing a suit for specific performance for contract for sale is three years from the date of entering into the agreement for sale. Mr. Ghosal further contends that in any view of the matter, the prayer for amendment cannot be allowed at the appellate stage in the facts and circumstances of this case. In our view, the question of limitation cannot arise in this case. Admittedly, the suit for specific performance was filed within the period of limitation, that is to say, thesuit was filed within three years from the date of entering into the agreement for sale. By the amendment of plaint, the plaintiff only seeks to incorporate the facts required to be made in terms of section 16(c) of the Specific Relief Act, which were required to be done at the time of filing the plaint In our view, by incorporating the averments as required under section 16(c) of the Specific Relief Act, there cannot be any question of any fresh cause of action to be introduced by applying for amendment of the plaint. Gajanand Jaikishan Joshi v. prabhakar Mohanlal Kalwar reported in : (1990)1SCC166 , the Supreme Court in paragraph 6 has observed as follows :
'If these principles are to be followed, there is little doubt that thelearned Judge was in error in rejecting the application for amendmentmade by the appellant. In the present case, no fresh cause of actionwas sought to be in Introduced by the amendment appalled for A-11 thatthe appellant sought to do was to complete the cause of action forspecific performance for which relief he had already prayed. It was onlythat one averment required in law to be made in a plaint in a suit forspecific performance in view of the provisions of sub-section (c) ofsection 16 of the Specific Relief Act was not made. probably on accountof some oversight or mistake of the lawyer who drafted the plaint andthat error was sought to be rectified by the amendment applied for.There was no fresh cause of action sought to be introduced by theamendment and hence, no question of causing any injustice to therespondent on that account arose.'
3. Relying on the aforesaid observation of the Supreme Court, it must be held that as there is no fresh cause of action sought to be introduced by the amendment and hence, no question of limitation shall arise nor shall cause any injustice to the defendant/respondent on that account arise.
4. In our view, the decision cited by Mr. Ghosal reported in : [1978]2SCR614 cannot be applied in the facts and circumstances of this case. In that decision, the Supreme Court was considering the situation where a plaintiff sought to alter the cause of action itself and to introduce indirectly through the amendment of his pleadings an entirely new and inconsistent cause of action amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there. In the background of this fact, the Supreme Court in that decision held that the court shall refuse to permit it. As noted hereinabove, by inserting the amendment as sought for by the plaintiff-appellant in the plaint, we have already held that by introduction of such amendment it cannot be said that there was any fresh cause of action or an entirely new or inconsistent cause of action. Mr. Ghosal then relied on another decision of the Karnataka High Court in the case of Palthur Honour Saheb v. Bopanna Annapurnamma & Ors. reported In AIR 1986 Karnataka, 100. Relying on paragraph 19 at page 117 Mr. Ghosal contended that the question of limitation shall arise if the plaintiff/appellant is now permitted to amend his pleadings after the suit is disposed of and the period of limitation for filing a suit for specific performance had long expired. Relying on the saidparagraph of the said decision of the Single Bench of Karnataka High Court, Mr. Ghosal contended that as the amendments have been sought for very late and after the expiry of the period of limitation and that too after the entire trial was over and when the matters are being argued in this court in appeal, by the time the amendment application is filed in this court, a right has been vested in the defendant/respondent by lapse of time. We are unable to agree with this contention of Mr. Ghosal nor we can rely on the single bench decision of the Karnataka High Court in view of our discussions made hereinabove and also in view of the Division Bench decision of this court.
5. In Barnik Roy @ Harekrishna Ray v. West Bengal Housing Board & Anr. : AIR1985Cal362 it was held that in a suit for specific performance of a contract it is the agreement between the parties and the refusal to fulfil the same by the parties residing therefrom which constitutes the basic cause of action. It was further held that it may be that in such a suit the plaintiff is also required to plead and prove the requirement of section 16(c) of the Specific Relief Act. Even if that constitutes a part of the cause of action that is not the whole of it and prayer for amendment to remove any defect due to omission to plead the said fact does not come within the bar of the principles which bars amendment to set up a new claim or a new cause of action. Again in another Division Bench decision of this court in the case of Byomkesh v. Want Copal : AIR1987Cal92 this court has held that a suit for specific performance could not be thrown out on the ground of not pleading the requirement as contemplated in section 16(c) of the Specific Relief Act and the plaintiff should be given a reasonable opportunity to make good defect by amendment of plaint even at the appellant stage. From the said decision it would appear that in that decision the trial court proceeded with the trial of the suit for specific performance of contract for sale in the absence of any averment that the plaintiff was ready and willing to perform his part of contract in compliance with section 16(c) of the Specific Relief Act. The defendant of that decision fully participated in the trial without any objection. A decree for specific performance of contract for sale was passed by the trial court. An objection as to averment was also not taken in the memo of appeal before the appellate court. In that decision the trial court also found that there was satisfactory evidence as to plaintiffs readiness and willingness to perform his part of the contract. In that circumstances the Division Bench of this court held that the suit should not be thrown out and the plaintiff must be given reasonable opportunity to make good defect by amendment of the plaint. In the present case also as noted hereinabove. the defendant-respondent did not raise any objection as to the requirement under section 16(c) of the Specific Relief Act not any argument was advanced on such question before the trial court. The trial court was also not invited with the argument that the suit must be dismissed on the ground that necessary averment in compliance with section 16(c) of the Specific Relief Act was not made by the plaintiff in his plaint. That being the position, and in view of the aforesaid two decisions of this court with which we are in agreement, we are unable to hold that the application for amendment of the plaint cannot be allowed at this stage.
6. In our view, therefore, the question of limitation in this case does not arise at all, nor the question of change of cause of action or introducing a new cause of action in the suit shall arise at all by incorporating the averments in terms of section 16(c) of the Specific Relief Act. It is true that the application for amendment of the plaint has been filed during the pendency of this appeal. Mr. Dasgupta, appearing on behalf of the appellant has taken us through different paragraph of the original plaint and for a reading of the said paragraphs Mr. Dasgupta contended that in fact the ingredients required to be incorporated in the plaint in terms of section 16(c) of the Specific Relief Act have been made in the plaint. We have carefully perused the entire plaint and we have no hesitation to agree with Mr. Dasgupta that in substance the avernments required to be made under section 16(c) of the Specific Relief Act have been incorporated in the plaint. Apart from that we are also of the view that if the amendment of the plaint is allowed, even then, there cannot be any question of prejudice of the defendant/respondent at all.
7. Before we part with this order, another decision cited by Mr. Ghosal may be considered. This is a decision of the Kerala High Court in the case of Ahmed v. Mammad Kunnt & Ors. reported in AIR 1987 Kerala 228. This is also a single bench decision of the Kerala High Court. In our view, the decision of the Kerala High Court is also not applicable to the facts and circumstances of this case. In that decision, an application for amendment of the plaint was filed after two years of filing a suit for specific performance of the agreement for sale of the properly. The application for amendment of the plaint was rejected on the ground that there was no explanation of delay shown by the appellant who has sought for such amendment. This is not the case here. In this case, the plaintiff-appellant has categorically stated in the application which has been not controverted by the defendant-respondent that during the hearing of the appeal, the question of not incorporating the averments as under section 16(c) of the Specific Relief Act had only cropped up although the issue regarding maintainability of the suit was not urged by the defendant/respondent in the trial court nor the trial court was invited by the respondent to hold that the suit must be dismissed on the ground of failure on the part of the defendant-respondent to plead necessary averments in compliance with section 16(c) of the Specific Relief Act and only when the appeal was taken up for hearing, the learned Advocate for the respondent raised such question, we are of the view that the application for amendment of the plaint has been filed only for an abundant caution and the delay in filing the same has been explained. Therefore, the decision of the Kerala High Court is not applicable to the facts and circumstances of this case. Mr. Ghosal does not submit that the application for amendment of plaint at the appellate stage cannot be filed but he contends as discussed above that such amendment shall not be allowed on the ground of limitation. In view of our discussions made hereinabove that the requirement of section 16(c) of the Specific Relief Act has been met by the plaintiff in the original plaint by making necessary averments and that application for amendment of the plaint has been filed in appeal only for abundant caution and in view of the discussions made hereinabove that amendment of the plaint can be allowed in an appropriate case, we are of the viewthat there is no reason in the facts and circumstances of this case to reject the application for amendment of the plaint filed by the plaintiff/appellant.
8. For the reasons aforesaid, we are of the view that the application for amendment of the plaint must be allowed. We accordingly allow the application for amendment of the plaint. It will be open to the defendant-respondent to file additional written statement within a period of three weeks from this date. After the additional written statement is filed by the defendant-respondent, the appeal shall be listed for further hearing.
With the above observation, this application for amendment of the plaint is allowed.
There will be no order as to costs.
9. Application allowed