(Dr. D.Y. Chandrachud, J.)

This appeal arises from a decision of a Learned Single Judge dated 6 March 2012 by which an amendment has been allowed to the plaint in a suit for specific performance. By the amendment, the Plaintiff seeks to claim, in addition to specific performance, damages at the rate of Rs.500/- per day together with interest. The amendment also seeks to set up an alternate plea that in the event the Court holds that specific performance cannot or ought not to be granted, then in that event, the Defendant be directed to refund the amount paid by the Plaintiff together with interest and an award of compensation be passed in lieu of specific performance.

2. The suit for specific performance instituted by the Plaintiff is of 1988. The Plaintiff claims specific performance of an agreement to sell dated 7 July 1976 in respect of the premises of a shop in a Shopping Complex. The suit which was instituted on 6 July 1988 is to be tried. A Chamber Summons for amendment of the plaint was taken out by the Plaintiff-Respondent inter alia seeking to raise a claim for the following reliefs:

“D. Change prayer “(b)” to “(b)(i)” and at the end thereof add the following “and in addition thereto, to pay to the Plaintiffs a sum of Rs.500/- per day as and by way of damages together with interest thereon @ 18% p.a. or at such other rate as this Hon'ble Court deems fit and proper from the date of payment thereof by the Plaintiffs till payment and/or realization.

-E. Before prayer (c), add as prayer (b)(ii):-

“(b)(ii) Without prejudice and in the alternative to prayer (b)(i) above and in the event of this Hon'ble Court coming to the conclusion that the Plaintiffs are entitled to specific performance of the said agreement, but for any reason whatsoever holding that specific performance of the said agreement for sale of the suit premises to the Plaintiffs dated 7th July 1976 (copy at Exhibit “B” to the Plaint) cannot or ought not to be granted, then and in such event only:-

(b)(ii)(a) Defendant Nos.1 and 2 be ordered and directed to pay to the Plaintiffs the sum of Rs.6,650/- (Rupees six thousand six hundred fifty only) as and by way of refund of the amount paid by the Plaintiffs to Defendant No.1 together with interest thereon @ 18% p.a. or at such other rate as this Hon'ble Court deems fit and proper from the date of payment thereof by the Plaintiffs till payment and/or realization;

(b)(ii)(b) Defendant Nos.1 and 2 be ordered and decreed to pay to the Plaintiffs an amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) as and by way of damages in lieu of specific performance of the said agreement for sale dated 7th July 1976 (copy at Exhibit “B” to the Plaint) together with interest thereon @ 18% p.a. or at such other rate as this Hon'ble Court deems fit and proper from the date of the suit till payment and/or realization.”

The amendment was allowed by the Learned Single Judge on 6 March 2012.

3. On behalf of the Appellant-Defendant, it has been urged that an application for amendment of a Plaint is governed by Article 137 of the Schedule to the Limitation Act, 1963 and ought to have been filed within a period of three years when the right to apply accrued. Reliance was sought to be placed on the judgment of a Learned Single Judge of this Court in Harinarayan G. Bajaj vs. Vijay Agarwal, (2012(2) Mh.L.J. 106)which adopts the position that though Order 6 Rule 17 of the Code of Civil Procedure, 1908 allows either party to alter or amend its pleading at any stage of the proceedings, this would be subject to the provisions of the Limitation Act and the remedy would be barred after the period prescribed under Article 137 of the Schedule elapses. In the present case, it was hence urged that the application for amendment which was filed in the form of a Chamber Summons on 23 June 2009, nearly 21 years after the institution of the suit, was barred by limitation and the Learned Single Judge consequently erred in allowing the amendment.

4. O