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High Court of Judicature at Bombay
S.J. KATHAWALLA. J.
Rohit A. Kapadia & Others
Versus
Perviz J. Modi
Chamber Summons No. 867 of 2012 In Suit No. 603 of 2005
Decided on : 20-03-2013
Since no prejudice would be caused to plaintiff if amendment of W.S. allowed hence application for amendment of written statement made by defendants, i.e. husband and wife aged 82 and 76 years respectively allowed. - The relief of specific performance is a discretionary relief and Section 20(2)(b) of the Specific Relief Act, 1963 provides that the Court may properly exercise discretion not to decree specific performance where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its nonperformance would involve no such hardship on the plaintiff. By the present amendment, the defendant seeks to point out the hardship that would be caused to her in the event the reliefs claimed by the plaintiffs are granted. Such an amendment is therefore necessary to decide the real disputes between the parties. The question therefore whether the performance of the contract would involve hardship on the defendant within the meaning of clause (b) as set out in explanation (2) of Section 20 of the Specific Relief Act is an issue which will be subsequently decided on merits. The Hon’ble Supreme Court in the case of Rajesh Kumar Agarwal (supra) has inter alia held in paragraph 19 that while considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment. The merits of the amendment sought to be incorporated by way of an amendment are not to be adjudged at the stage of allowing the prayer for amendment.
In the circumstances Court is of the view that if the amendments sought by the defendant are allowed, no prejudice will be caused to the plaintiffs, whereas if the said amendments are not allowed, grave and irreparable harm, loss, damage, injury and prejudice will be caused to the defendant who, as already stated hereinabove, has acted with such diligence as a prudent man would exercise in the conduct of his own affairs. Chamber Summons is therefore allowed in terms of prayer clauses (a) and (b). However, in order to ensure that the plaintiffs are not in any way prejudiced, the plaintiffs are allowed to adduce additional evidence on the amended written statement before the defendant leads her evidence. Defendant shall also pay costs quantified at Rs. 1,00,000/to the plaintiffs. Amendment to be carried out on or before 31st March, 2013. The Chamber Summons is accordingly disposed of.
Civil Procedure Code, 1908 - Order VI, Rule 17 Proviso - Amendment of written statement.
Failure of defendant, inspite of due diligence, to raise matter before commencement of trial, not disentitled him to seek amendment of written statement after commencement of trial. - A Division Bench of the Court in Rasiklal Mangaldas Mehta v. Bai Savita, A.O. No. 30 of 1955 decided by Chagla CJ. and Dixit, J. on July 27, 1955 (unreported) therefore observed thus :
"If the defendant approaches the Court and wants the Court to hold its hands and not try a suit and stay it, it is for the defendant to aver all the allegations which are necessary in order to obtain a stay of the suit. The defendant has failed to make the necessary averments and on his application for stay he is bound to fail. But assuming the Court was indulgent and had permitted the defendant to make the necessary allegations even in his affidavit in rejoinder, he has failed to do so."
Therefore, as held by the Hon’ble Supreme Court in Anderson Wright Ltd., AIR 1995 SC 53, Section 34 of the Arbitration Act, 1940 enjoins an applicant to fulfil certain conditions and in the absence of the applicant stating in his application that the said conditions have been fulfilled, the application cannot be further entertained. These are the conditions which uniformly apply to all applications under Section 34 of the Arbitrat ion Act and are required to be averred by the applicant. The principle applicable to Section 34 of the Arbitration Act cannot be applied to the proviso to Order VI, Rule 17 of the CPC where the reasons for an applicant not being able to raise the matter before the commencement of trial despite due diligence would be different in each case. It is for this reason that the Hon’ble Supreme Court in the case of Salem Advocates Bar Association v. Union of India, (2005) 6 SCC 344 : 2005 (5) All MR 876 (SC), observed that "....Now if 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". Therefore, what is expected from the applicant is that he should show in his application that in spite of due diligence such amendment could not have been sought earlier, and it cannot be said that it is mandatory on the part of the applicant to use the words of the section that in spite of due diligence such amendment could not have been sought earlier. Again, as held in Chander Kanta Bansal v. Rajinder Singh Anand, (2008) 5 SCC 117 : 2008 (4) All MR 423 (SC), "The new proviso lays down that no application for amendment shall be allowed after the commencement of trial, unless 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. But whether a party has acted with due diligence or not would depend upon the facts and circumstances of each case". It is therefore clear that in each case where a party has approached the Court to seek permission of the Court to amend the pleading after the commencement of trial, the facts and circumstances would differ. The party approaching the Court is therefore required to set out the facts and circumstances of his case and it is the Court which has to consider such facts and circumstances pleaded in each case and come to the conclusion whether or not in spite of due diligence the party could have raised the matter before the commencement of trial. Court is therefore of the view that the averment that in spite of due diligence the party could not have raised the matter before commencement of trial is not decisive in itself and the application cannot be simply dismissed on the ground of absence of such pleading. It is for the Court to decide whether or not the party could have raised the matter after exercise of due diligence, having regard to the pleadings made in that behalf.
1. The Plaintiffs have filed the above suit against the Defendant for a declaration that the concluded contract in terms of the unsigned MOU being Exhibit-O to the Plaint, arrived at between the Plaintiffs and the Defendant is valid, subsisting and binding on the Defendant and the Defendant be ordered and decreed to specifically perform the said concluded contract and for the said purpose to do all acts, deeds and things and execute all necessary documents, papers, applications, etc.
2. In September 2006, the Defendant took out Notice of Motion No. 3818 of 2006 to condone the delay of 465 days in filing the written statement. By an order dated 31st March 2008, the said Notice of Motion was allowed by this Court (Coram: S.C. Dharmadhikari, J.) and the written statement dated 28th September 2006 was taken on record.
3. From the roznama it appears that after the written statement dated 28th September2006 was taken on record, the suit came up on Board only on 13th February 2012, when issues were framed in the above suit; the Plaintiffs were directed to file their affidavit of evidence, affidavit of documents along with compilation of documents on or before 27th February 2012; the Defendant was directed to file her affidavit of documents along with compilation of documents on or before 27th February 2012 and the matter was adjourned to 5th October 2012 for admission and denial of documents. On 5th March 2012, the documents submitted on behalf of the Plaintiffs were marked and on 20th April 2012, the Plaintiff No.1 was cross-examined by the Advocate appearing for the Defendant. In the meantime, on 31st March 2012, 8 documents were tendered on behalf of the Defendant which were marked as Exhibits/for identification. The cross-examination of the Defendant was fixed on 27th April 2012. On that day, the Defendant was ready with the affidavit of evidence. The Learned Senior Advocate appearing for the Plaintiffs objected to the contents contained in paragraphs 7 and 8 of the affidavit of evidence on the ground that the same were not found in the written statement of the Defendant. The Learned Senior Advocate appearing for the Defendant submitted that the necessary averments to the effect (a) that the Plaintiffs are not entitled for a decree of specific performance and (b) that granting of reliefs as prayed for by the Plaintiffs will cause harm, loss or injury to the Defendant, are already made in the written statement by the Defendant. The Learned Senior Advocate further submitted that the facts contained in paragraphs 7 and 8 have surfaced very recently i.e. in the meeting held by the Defendant and her husband (who are very elderly persons) with their Advocates for preparation of the affidavit of evidence, and have accordingly been incorporated in the affidavit of evidence in support of the aforesaid averments. This Court was prima facie of the view that the objection raised on behalf of the Plaintiffs may be tenable and therefore the learned Senior Advocate appearing for the Defendant could consider the possibility of incorporating the contents of paragraphs 7 and 8 through an amendment to the written statement.
4. The Defendant has thereafter taken out the present Chamber Summons seeking to amend the written statement dated 28th September 2006, to the extent of incorporating the contents of the two paragraphs contained in the Affidavit of evidence. What is sought to be introduced by the Defendant by way of the present amendment to the written statement is the fact that she and her husband who are 76 and 82 years old respectively, due to the extreme cold weather and lack of domestic help in Canada, have decided to stay in India at the suit flat from November to April and if they are directed to specifically perform the purported Agreement as prayed for by the Plaintiffs, the same will cause grave hardship to them. The Chamber Summons is now taken up for hearing and final disposal.
5. Mr. Saleh Doctor, the Learned Senior Advocat
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