A plaint for specific performance of a contract can be converted by amendment into a plaint for damages for breach of contract, even if the claim for damages would be barred by limitation if a fresh suit were filed, provided that the court considers the special circumstances of the case and the prejudice caused to the defendant by the delay in seeking the amendment.

( 1 ) THIS is an application for amendment of the plaint. It raises the important question whether a plaint for specific performance of a contract can be converted by amendment into a plaint for damages for breach of contract.

( 2 ) THE suit was instituted on or about 17-12-1946. The plaint claims specific performance of an agreement dated 31-7-1946, under which the plff. Agreed to sell the deft. premises Nos. 3a, 3b and 3/1, Maharani Swarnamoyee Road for a sum of Rs. 2,30,000/ -. There is no pleading in the plaint for damages for breach of contract but there is a claim for compensation in addition to or in substitution of the claim for specific performance.

( 3 ) THE amendment that the plff. Now seeks in his application made on the petition affirmed on 19-6-1950 is to delete the averment of readiness and willingness and to delete the claim for specific performance and to substitute a claim for damages simpliciter for breach of the agreement. The reason put forward for this amendment is that the property in suit has been requisitioned by the Govt. pending suit with the result that the pltt. Himself can no longer specifically perform the agreement to convey the property.

( 4 ) MR. H. N. Sanyal, learned counsel appearing for the deft, has opposed this application on two grounds. The first ground is that a suit for specific performance cannot be converted into a suit for damages. The second is that the claim for damage is now barred by limitation and therefore in any event such amendment should not be allowed.

( 5 ) THE first ground of objection raises a question of considerable importable importance. Except by way of obiter the point does not appear to me to be concluded by any decision exactly on the point. It therefore becomes necessary to deal with the question from the first principles.

( 6 ) A good deal of the confusion on the subject arises from the fact that in English Law the only legal right which arose under the Common Law when there was non-performance of a contract was a claim for damages by the party injured by such breach. Common Law provided no relief for specific performance in England. Equity therefore had to step in aid of that court and provided that more complete remedy of specific performance where damage was obviously an insufficient and inadequate remedy for the breach.

( 7 ) IT gradually came to be realised with experience that there were cases where the contract although for specific performance damages were the more adequate remedy and it was expedient that in such cases the court should not be compelled in England to send the plff. to the Common Law Courts but should itself have the power to award damages. This was met in 1858 by Lord Cairn's Act. Section 2 of Lord Cairn's Act provided:"in all cases in which the Court of Chancery has jurisdiction to entertain an application for ?specific performance of any covenant, contract or agreement it shall be lawful for the same Court if it shall think fit to award damages to the party injured either in addition to or in substitution for such specific performance and such damages may be assessed as the Court shall direct. "

( 8 ) THE difficulties did not end with the passing of the Lord Cairn's Act. The question was soon to arise and it did arise whether this new power in Court of Chancery to award damages in a claim for specific performance was merely an ancillary or alternative power in aid or substitution of specific performance, so that this new power granted under Lord Cairn's Act did not help in the case in which the plff. could not proceed with or prosecute his basic claim for specific performance. The point found favour with Lord Selborne and Brett L. J. in 'hipgrave v. Case', (1885) 28 Ch. D. 356 where it was held that the plff. having by the form of his pleadings and by his conduct elected to put his claim as one of specific performance with an alternative claim for damages in case the Court felt unable to give effect to his p