Amendment of plaint should be allowed to shorten litigation. Amended plaint should be returned to plaintiff for presentation to appropriate court.

This application under Article 227 of the Constitution is directed against an order passed in revision under Section 115A of the Code of Civil Procedure. The facts of the case briefly stated are as follows:-

A piece of land measuring more or less 2 cottahs situate in the District of 24-parganas comprised in Dag No. 546 and Khatian No. 130 belongs to the defendant. Pursuant to an agreement entered into between the defendant and the plaintiff, the plaintiff constructed a 4storied building thereat. The arrangement between the parties was that a portion of the building shall be allotted to the plaintiff and a portion thereof shall be allotted to the defendant. There is a written agreement between the parties dated 3.1.1988 which provides that the defendant shall be liable to convey by a registered deed the portion or portions allotted and or to be allotted to the defendant. The case of the plaintiff is that the building has duly been constructed and the parties have duly been given their respective portions of which they are in possession. It is alleged that on 27.1.1995 the plaintiff requested the defendant to execute the deed of conveyance which the defendant failed, neglected and/or refused to do. Accordingly, Title Suit No. 417 of 1995 was filed on 30.9.1995 claiming principally the following reliefs:

(a) For a decree, declaring the plaintiff is entitled to 200 sq. ft. on the ground floor and the entire first floor flat as well as 3rd floor and the upper floor and roof of the building constructed on the land of the defendant described in the schedule hereunder written;

(b) For Mandatory injunction directing the defendant to execute and register the deed of conveyances in favour of Smt. Sipra Mondal and Sri Bidyut Ray being the nominees of the plaintiff in terms of the agreement;

(c) For permanent injunction."

2. After the hearing of the suit was started the plaintiff applied under Order 6. Rule 17 seeking to amend the plaint by inserting therein a prayer for specific performance of the agreement dated 3.1.1988, a paragraph in support thereof and for amendment of the schedule to the plaint. One of the allegations sought to be inserted by way of amendment is that the plaintiff constructed the building by spending a sum of Rs.4 lacs. The application for amendment of the plaint was dismissed by the Trial Court by an order dated 7.5.2001 on two grounds: (i) that the proposed amendment shall change the nature and character of the suit and (ii) that the case of action sought to be brought in by way of amendment was barred by limitation as on the date of application for amendment. In dismissing the application for amendment the Trial Court relied on a judgment of the Apex Court in the case T. L. Maddhukrishna v. Smt. Lalitha Ram Chandra Rao reported in AIR 1997 SC 772 wherein, in a suit for mandatory injunction prayer for specific performance was sought to be inserted by way of amendment of the plaint which was disallowed by the Courts below and the Apex Court upheld the order on the ground of limitation. It would be apposite to notice the relevant portion of the aforesaid judgment which is as follows:-

“................ Since the application for amendment of the plaint came to be filed after the expiry of three years, certainly it changed the cause of action as required to be specified in the plaint. The suit for mandatory injunction is filed and the specific performance was sought for by way of an amendment. The cause of action is required to be stated initially in the plaint but it was not pleaded. It was sought to be amended along with an application for specific performance which, as stated earlier, was rejected. Under these circumstances, even by the date of filing of the application, namely, November 5, 1992 the suit was barred by limitation. The High Court, therefore, was right in refusing to permit the amendment of the plaint.

It is then contended that the appellants have already paid the substantial amount and therefore the