Case Note & Summary
The appeal arose from a decision of a Learned Single Judge of the Bombay High Court dated 6 March 2012, allowing an amendment to the plaint in a suit for specific performance. The suit was instituted in 1988 by the plaintiff (respondent) seeking specific performance of an agreement to sell dated 7 July 1976 for a shop premises. By the amendment, the plaintiff sought to add a claim for damages at Rs.500 per day with interest, and an alternative plea that if specific performance cannot be granted, the defendant be directed to refund the amount paid (Rs.6,650) with interest and pay compensation of Rs.20,00,000 in lieu of specific performance. The defendant (appellant) opposed the amendment, contending that it was barred by limitation under Article 137 of the Limitation Act, 1963, and that it changed the nature of the suit. The Single Judge allowed the amendment, holding that it did not introduce a new cause of action and was not barred by limitation. The Division Bench, in appeal, upheld the Single Judge's order. The court reasoned that the amendment merely amplified the existing relief and did not change the nature of the suit. It held that the alternative claim for damages and refund arose out of the same transaction and was permissible under Section 21 of the Specific Relief Act, 1963. The court also noted that the amendment was sought before the trial commenced and that no prejudice would be caused to the defendant. The appeal was dismissed with costs of Rs.25,000 payable to the plaintiff.
Headnote
A) Civil Procedure - Amendment of Plaint - Order VI Rule 17 CPC - Limitation - Amendment seeking to add alternative claim for damages and refund in a suit for specific performance does not introduce a new cause of action but merely amplifies existing relief - Such amendment is not barred by limitation under Article 137 of the Limitation Act, 1963, as it relates to the same transaction and does not change the nature of the suit (Paras 4-10). B) Specific Relief Act - Alternative Relief - Section 21 - Damages in lieu of Specific Performance - A plaintiff in a suit for specific performance is entitled to claim, in the alternative, damages or compensation if the court finds that specific performance cannot be granted - Such alternative claim can be added by amendment even after the expiry of limitation, as it arises out of the same cause of action (Paras 5-7). C) Limitation Act - Article 137 - Application for Amendment - The period of limitation for an application for amendment of pleadings is governed by Article 137 of the Limitation Act, 1963, which prescribes a period of three years from the date when the right to apply accrues - However, where the amendment relates to the same transaction and does not introduce a new cause of action, it is not barred by limitation (Paras 8-10).
Issue of Consideration
Whether an amendment to the plaint seeking to add a claim for damages and an alternative claim for refund and compensation in lieu of specific performance is barred by limitation under Article 137 of the Limitation Act, 1963, and whether such amendment changes the nature of the suit.
Final Decision
Appeal dismissed with costs of Rs.25,000 payable by the appellant to the respondent. The order of the Learned Single Judge allowing the amendment is upheld.
Law Points
- Amendment of plaint
- Order VI Rule 17 CPC
- Article 137 Limitation Act
- 1963
- Section 21 Specific Relief Act
- alternative relief
- damages in lieu of specific performance
- refund of consideration
