Mohanan Nair v Premachandran Nair and Pankajakshy Amma

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN TUESDAY, THE 28TH DAY OF OCTOBER 2014/6TH KARTHIKA, 1936 ## **OP(C).No. 625 of 2010 (O)** AGAINST THE ORDER IN I.A.NO.3650/2010 IN OS.NO.588/2006 ON THE FILE OF THE I ADDL.SUB COURT,THIRUVANANTHAPURAM DATED 16-09-2010. ## PETITIONER: MOHANAN NAIR, AGED 53 YEARS, S/O.APPUKUTTAN NAIR, RESIDING AT ANANDA BHAVAN KOLIYACODE, INDUSTRIAL ESTATE, KARUMAM DESOM NEMOM VILLAGE, THIRUVANANTHAPURAM. BY ADVS. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.M.AJAY (IRUMPANAM) ## RESPONDENTS: 1. PREMACHANDRAN NAIR, S/O.GOPALAKRISHNAN NAIR, RESIDING AT THEKKEMANNAMVILAKATHU VEEDU KOLIACODE, INDUSTRIAL ESTATE, KARUMAM DESOM NEMOM VILLAGE, THIRUVANANTHAPURAM-695 020. 2. PANKAJAKSHY AMMA, D/O.KUNJULAKSHMY AMMA RESIDING AT THEKKEMANNAMVILAKATHU VEEDU, KOLIACODE INDUSTRIAL ESTATE, KARUMAM DESOM, NEMOM VILLAGE THIRUVANANTHAPURAM-695 020. (DIED) (DELETED FROM THE PARTY ARRAY) R2 (DIED) IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 16.6.2011 IN I.A.NO.2577/2011. R1 BY ADV. SRI.T.RAMPRASAD UNNI R1 BY ADV. SRI.J.R.PREM NAVAZ THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 28-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **O.P.(C) NO.625 OF 2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - EXT.P1 TRUE COPY OF THE AGREEMENT DATED 17.5.2006 EXECUTED BY RESPONDENTS 1 AND 2 IN FAVOUR OF THE PETITIONER. - EXT.P2 TRUE COPY OF THE SUIT NOTICE DATED 4.10.2006 ISSUED BY ADV.D.GANESHKUMAR. - EXT.P3 TRUE COPY OF THE PLAINT IN O.S.NO.588/2006 ON THE FILE OF THE I ADDITIONAL SUB COURT, TRIVANDRUM. - EXT.P4 TRUE COPY OF THE DEPOSITION OF THE PLAINTIFF ALONG WITH THE PROOF AFFIDAVIT IN O.S.NO.588/2006. - EXT.P5 TRUE COPY OF THE DEPOSITION OF THE FIRST DEFENDANT IN O.S.NO.588 OF 2006. - EXT.P6 TRUE COPY OF THE DEPOSITION OF THE SECOND DEFENDANT IN O.S.NO.588 OF 2006. - EXT.P7 TRUE COPY OPF I.A.NO.3650/2010 IN O.S.NO.588/2006 DATED 16.9.2010. - EXT.P8 TRUE COPY OF THE ORDER DATED 16.9.2010 IN I.A.NO.3650 OF 2010 IN O.S.NO.588/2006 ON THE FILE OF THE I ADDITIONAL SUB COURT, TRIVANDRUM. ## **RESPONDENTS' EXHIBITS** : NIL //TRUE COPY// AHZ/ **“C.R.”** ## **K.T.SANKARAN, J.** ## **-----------------------------------------------------O.P.(C) NO. 625 OF 2010 (O) -----------------------------------------------------Dated this the 28[th] day of October, 2014** ## **JUDGMENT** The Original Petition is filed by the plaintiff in O.S.No.588 of 2006 on the file of the Court of the First Additional Sub Judge, Thiruvananthapuram, by which the court below dismissed the application for amendment of the plaint. 2. The petitioner/plaintiff entered into an agreement for sale with the respondents. The respondents agreed to sell their property to the petitioner fixing a price at the rate of `12,000/- per cent of land. The plaintiff contended that a sum of `2 lakhs was received by the defendants as advance sale consideration. As per the agreement dated 17.5.2006, the period of six months was fixed for completing the transaction. 3. Since the defendants were not ready to execute the sale deed, the plaintiff caused to issue two lawyer notices to the O.P.(C) NO.625 OF 2010 :: 2 :: defendants directing them to execute the document after receiving the balance consideration. In the notice dated 4[th] October, 2006, it is stated thus : “That my client is always ready and willing to purchase the property mentioned above, but both of you have purposefully evaded from executing the sale deed in favour of my client. My client is still ready and willing to purchase your property as per the agreement dated 17.5.2006.” Since the defendants failed to comply with the request made in the lawyer notice, the petitioner filed the suit. In the plaint, however, the plaintiff did not make any averment that he continues to be ready and willing to perform his part of the contract, which is mandatory under Section 16(c) of the Specific Relief Act. However, the plaintiff stated in the plaint that he was ready to deposit the balance sale consideration of `2,74,420/- as and when directed by the court. Along with the plaint, the lawyer notices were also produced. 4. In the written statement filed by the defendants, it was O.P.(C) NO.625 OF 2010 :: 3 :: contended that the plaintiff is a money lender and the agreement for sale relied on by the plaintiff was not intended to be an agreement for sale. The first defendant borrowed a sum of Rupees One lakh from the plaintiff and on that date he executed an agreement acknowledging receipt of the said amount. He also gave a blank cheque in favour of the plaintiff. The first defendant again borrowed a sum of Rupees One lakh from the plaintiff and another agreement dated 12.4.2006 was executed and another blank cheque was also handed over to the plaintiff. Interest was being paid to the plaintiff. However, the plaintiff insisted to execute an agreement for sale with respect to the plaint schedule property. Accordingly, an agreement dated 17.5.2006 was executed. The agreement is not a contract for sale. The plaintiff is not entitled to the relief of specific performance. 5. The suit was listed for trial. It would appear that the evidence was over. At that time, the plaintiff filed I.A.No.3650 of 2010 to amend the plaint by incorporating the averment that he has been ready and willing to perform his part of the contract and was ready to pay the balance sale consideration and he continues to be O.P.(C) NO.625 OF 2010 :: 4 :: ready and willing to perform his part of the contract. In the affidavit accompanying the application, the plaintiff stated that by an inadvertent omission, the plea of readiness and willingness was not incorporated in the plaint. 6. The defendants contended in the counter affidavit that the amendment cannot be allowed in view of the proviso to Rule 17 of Order VI of the Code of Civil Procedure. An amendment of plaint cannot be allowed after the commencement of the trial unless the court comes to the conclusion that in spite of due diligence the plaintiff could not have raised the matter before the commencement of the trial. The application for amendment was filed after the period of limitation for filing a suit for specific performance. It was also contended that if the application is allowed, serious prejudice would be caused to the defendants and their accrued rights would be taken away. The amendment would change the nature and character of the suit and it would introduce a new cause of action. 7. The court below dismissed the application for amendment O.P.(C) NO.625 OF 2010 :: 5 :: which is under challenge in this Original Petition. The court below held that the amendment sought for will not change the nature and character of the suit. The trial court also held that the plaintiff produced copies of lawyer notices along with the plaint and they form part of the pleadings. However, the application was dismissed only on the ground that it was filed after commencement of the trial and the plaintiff did not establish that in spite of due diligence, he could not have raised the matter before the commencement of the trial. 8. Rule 17 of Order VI of the Code of Civil Procedure reads as follows: “17. Amendment of pleadings.-- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the O.P.(C) NO.625 OF 2010 :: 6 :: Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” ## 9. In **Eapen Antony** v. **Joseph and another (ILR 2009(1)** **Kerala 712),** it was held that if the exception to the first part of the proviso is satisfied and the Court comes to the conclusion that in spite of due diligence, the party could not raise the matter before commencement of the trial, it does not restrict the power of the Court to allow the amendment even after closure of the evidence. In such a case, the main part of Rule 17 empowering the Court to allow amendment at any stage of the proceedings will come into operation. It was also held that only on the ground that the Court has power to allow amendment of pleadings even after the closure of evidence, it cannot be said that the plaintiff would have unrestricted rights to apply for amendment of the pleadings. 10. In **Salem Advocate Bar Association, T.N.** v. **Union of India ((2005) 6 SCC 344)** , the Supreme Court held that if the O.P.(C) NO.625 OF 2010 :: 7 :: application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. ## 11. In **Sajjan Kumar** v. **Ram Kishan ((2005) 13 SCC 89)** , an application for amendment of the description of the suit property was allowed at the final stage of the litigation. The Supreme Court held that the proposed amendment was necessary for the purpose of deciding the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of execution, even if the plaintiff gets a decree. ## 12. In **Chander Kanta Bansal** v. **Rajinder Singh Anand** **((2008) 5 SCC 117)** , it was held that the proviso to Rule 17 of Order VI of the Code of Civil Procedure, to some extent, limits the scope of amendment of pleadings, but it would still vest enough powers in courts to deal with unforeseen situations whenever they arise. O.P.(C) NO.625 OF 2010 :: 8 :: Therefore, it is not a complete bar to entertain an application after the commencement of trial. 13. In **M.P.Rajasekharan Nair** v. **Raju & Another (2003 (2) KLJ 847** ), a Division Bench of this Court, relying on the decisions of the Supreme Court in **Gajanan Jaikishan Joshi** v. **Prabhakar Mohanlal Kalwar ((1990) 1 SCC 166)** and **Lakhi Ram** v. **Trikha Ram (AIR 1998 SC 1230)** , held as follows: “....The question that is posed for consideration is whether the proviso added to Order 6 Rule 17 would bar the amendment of pleadings. Once the suit has been listed for trial such an amendment could be allowed only if the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. We are of the view the plaintiff is seeking amendment of the plaint not to incorporate a fresh cause of action or to change the character of the suit. Plaint when drafted due to an oversight by the lawyer omitted to incorporate an important averment of readiness and willingness. Fact that such an averment was not taken was noticed only when the vakalath was changed and new counsel was ## O.P.(C) NO.625 OF 2010 :: 9 :: engaged. We are of the view by allowing the amendment no new cause of action is sought to be introduced by the plaintiff. Even if such an averment has been incorporated plaintiff has to prove that he was ready and willing to perform his part of the contract.....” 14. In **Dasan** v. **Sasi (2011 (2) KLT 381)** , it was held that in the case of a suit for specific performance of a contract for transfer of immovable property, the plaintiff can be permitted to amend the plaint to incorporate a prayer for possession under Section 22 of the Specific Relief Act. It was also held that the rigour of the proviso to Rule 17 of Order VI of the Code of Civil Procedure would not as such apply in cases where proviso to Section 22(2) of the Specific Relief Act applies. ## 15. In **Rajkumar Gurawara** v. **S.K.Sarwagi & Company Private Limited and another ((2008) 14 SCC 364)** , the Supreme Court held thus: “13. To put it clear, Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or O.P.(C) NO.625 OF 2010 ## :: 10 :: amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pretrial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the court to satisfy the conditions prescribed in the proviso.” ## 16. In **Ravejeetu Builders and Developers** v. **Narayanaswamy and Sons and Others ((2009) 10 SCC 84)** , the Supreme Court, on an analysis of the English and Indian cases, held as follows: “63. On critically analysing both the English and Indian cases, some basic principles emerge which O.P.(C) NO.625 OF 2010 :: 11 :: ought to be taken into consideration while allowing or rejecting the application for amendment: - (1) whether the amendment sought is imperative for proper and effective adjudication of the case; - (2) Whether the application for amendment is bona fide or mala fide; - (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; - (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; - (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and - (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.” O.P.(C) NO.625 OF 2010 :: 12 :: ## 17. In the aforesaid decision in **Ravejeetu Builders and** **Developers** v. **Narayanaswamy and Sons and Others ((2009) 10 SCC 84)** , the Supreme Court also considered the question of limitation in the matter of considering the application for amendment of the plaint and it was held thus: “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 claim is barred by the 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 (see _Ganga Bai v. Vijay Kumar_ and _Arundhati Mishra v. Ram Charitra Pandey_ ).” ## 18. In **Chander Kanta Bansal** v. **Rajinder Singh Anand (AIR** **2008 SC 2234 = (2008) 5 SCC 117)** , it was held thus: O.P.(C) NO.625 OF 2010 :: 13 :: “10. The entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the other's case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases.” 19. In the present case, in the notice issued on behalf of the plaintiff, specific mention was made about the readiness and willingness on the part of the plaintiff. The reply notice was produced along with the plaint. In the affidavit filed by the plaintiff in lieu of chief examination, he specifically averred that he was always ready and willing to pay the balance consideration and to get the document registered and that he continues to be ready and willing to O.P.(C) NO.625 OF 2010 :: 14 :: do so. In the cross examination of the plaintiff, there is no specific challenge to this statement. The case of the defendants is that the agreement in question was not as such executed by them as an agreement for sale of their property. The suggestion made to the plaintiff in cross examination was that the plaintiff was not entitled to get any of the reliefs claimed in the plaint and that he would be entitled to get back `2 lakhs and interest. To that suggestion, the plaintiff stated that it is for the Honourable Court to decide as to which relief he would be entitled to. 20. In the facts and circumstances of the case, it cannot be said that the defendants were put to surprise by the lack of specific averment in the plaint about the readiness and willingness on the part of the plaintiff to perform his part of the contract. In the plaint, apart from stating that the plaintiff is ready to deposit the balance sale consideration, he also stated that he approached the defendants several times to execute the document after receiving the sale consideration. It was also averred by the plaintiff in the plaint that the defendants refused to fulfill their part of the contract. O.P.(C) NO.625 OF 2010 :: 15 :: In the light of the averments contained in the plaint and in the nature of the contentions put forward in the written statement as well as the suggestion made on behalf of the defendants to the plaintiff in cross examination, it cannot be said that prejudice would be caused to the defendants if the amendment of the plaint is allowed. 21. The plaintiff specifically stated that it was only due to an omission that he did not plead specifically in the plaint that he was ready and willing and continues to be ready and willing to perform his part of the contract. The question is whether in spite of due diligence, the plaintiff could have raised the matter before commencement of trial. The plaintiff stated in the affidavit in lieu of chief examination about his readiness and willingness to perform his part of the contract. An omission is something which is not made consciously. If it is made consciously, strictly speaking, it cannot be said that it is a bona fide omission. Sometimes, an omission could not be found out in spite of due diligence in prosecuting the litigation. Simply because the plaintiff omitted to mention something in the plaint, not deliberately, it cannot always be said that he was not O.P.(C) NO.625 OF 2010 :: 16 :: acting with due diligence. The question whether the plaintiff acted with due diligence and whether he could have raised the matter before the commencement of trial, all depend on the facts and circumstances of each case. The fact that the plaintiff stated in evidence about the readiness and willingness would indicate that it was not a deliberate omission in the plaint, but an accidental omission. 22. Amendment of the plaint would relate back to the date of plaint. The Supreme Court has made it clear that in the facts and circumstances of each case, the Court can allow an amendment to be carried out in the plaint, though the relief in respect of the amendment was barred by limitation as on the date of the plaint. In the present case, the relief claimed is a relief for specific performance of an agreement for sale. By the amendment of the plaint, no other relief is sought to be introduced. An averment which is required to enable the plaintiff to get the relief pleaded in the plaint is sought to be incorporated by way of amendment. Therefore, it cannot be said that the claim put forward in the application for O.P.(C) NO.625 OF 2010 :: 17 :: amendment is barred by limitation. The question to be considered is whether the relief for specific performance is barred by limitation. Evidently, it is not barred. A fact to be proved to enable the plaintiff to get the relief of specific performance can be added or incorporated even after the period of limitation. In such a case, the suit would not be barred as on the date of filing of the application for amendment. Therefore, there is no reason to accept the contention of the defendants that the application for amendment, if allowed, would have the effect of allowing the plaintiff to incorporate a relief in the plaint which is barred by limitation. 23. For the aforesaid reasons, I am of the view that the court below was not justified in dismissing the application for amendment of the plaint. The order passed by the court below is set aside and the application for amendment of the plaint is allowed on condition that the plaintiff shall pay a sum of `1,500/- as costs to the defendants. The plaintiff would be entitled to adduce further evidence by filing an affidavit or offering to examine him before Court in chief. The defendants would be entitled to cross examine the O.P.(C) NO.625 OF 2010 :: 18 :: plaintiff, whether or not any additional evidence is adduced by the plaintiff. The defendants also would be entitled to adduce additional evidence. The Original Petition (Civil) is allowed as above. **K.T.SANKARAN Judge** ahz/