Delay in filing application for amendment of plaint relating to claim of damages not fatal.

Revision against the order dated 24.03.2003, made in I.A.No.589 of 2002 in O.S.No.45 of 1996 on the file of Sub-Court, Hosur.

M.E.N. Patrudu, J.

1.00. REFERENCE :

1.01. The reference is as per the result of the revision.

1.02. An order rejecting an application for amendment of plaint in a civil suit is challenged before this Court by way of revision.

1.03. Hon'ble Sri Justice K.P.Sivasubramaniam, desirous to have the decision of a larger bench on the subject.

1.04. Lord Chief Justice Hon'ble Sri A.P.Shah directed to list it before us for determining the following.

2.00. ISSUES :

I. Whether an amendment of plaint seeking to claim enhancement of the amount of compensation/damages could be entertained notwithstanding the fact that the amendment is sought for beyond the period of limitation ?

II. Whether Section 40 (2) of the Specific Relief Act would apply to the facts and circumstances of the present case and if so, whether it is mandatory to allow the amendment notwithstanding the bar of limitation ?

III. Whether the constraints prescribed under the proviso to Order 6, Rule 17 CPC in the matter of entertaining application for amendment after the commencement of trial could apply even to a plea for amendment as contemplated under Section 40 (2) of Specific Relief Act ?

3.00.POINTS :

Thus, the points for our decision are:

(1) Whether an amendment of pleading claiming or enhancing damages is barred by limitation ?

(2) Whether such amendment is mandatory under the provisions of Specific Relief Act ? and

(3) Whether such amendment is permissible despite the present proviso to Order 6, Rule 17 CPC ?

4.00.ANSWERS :

4.01. We would prefer to declare our decision at first and assign reasons thereafter

4.02. Accordingly, we hold that

(1) an amendment of pleading on damages is not barred by limitation as a rule, but depends on facts and circumstances of each case.

(2) such amendments are mandatory under Section 40 (2) proviso of Specific Relief Act.

(3) such amendments are permissible even after the commencement of trial.

5.00. DISCUSSION :

5.01. Before we proceed to highlight the reasons for our decision, we may have to note the law on the subject and the legal principles, emerging therefrom since settled by the Apex Court and also this Court in similar cases and then to apply the same to the present case, in order to strengthen our decision.

Law : Civil Procedure Code :

5.02. The procedure for amendment of pleadings is as per Order 6, Rule 17 of the Code of Civil Procedure. It reads thus :

17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties :

Provided that no application for amendment shall be allowed after the trial has commenced, 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."

5.03. The Code of Civil Procedure, 1908, was extensively amended in 1976 and it was further amended by the Amendment Act 1999 known as Act No.46 of 1999 and, thereafter, by Act 22 of 2002. These amendments have come into force with effect from 01.07.2002.

5.04. Prior to the above amendments, Order 6 Rule 17 was as follows :

"17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."

5.05. Thus, the proviso is the new addition under the existing procedural law.

Specific Relief Act :

5.06. Section 40 of the Specific Relief Act, 1963, reads as follows :

"40. Damages in lieu of, or in addition to, injunction

(1) The plaintiff in a suit for perpetual injunction under Sect