SupremeToday Landscape Ad
Back
Next
Judicial Analysis Court Copy Headnote Facts Arguments Court observation
Listen Audio Icon Pause Audio Icon
judgment-img

1986 Supreme(MP) 236

High Court Of Madhya Pradesh
R. C. Shrivastava, J.
DAMODARRAO
Versus
MAINABAI
Decided On : Sep 26,1986

Advocates Appeared:
R.A.Roman, R.C.LAHOTI,

Headnote:(1) Civil P.C., 1908--O. 6, R. 17--amendment of pleadings--cannot be allowed to build up a new case--amendment amounting a different approach to same facts may be allowed. In the matter of amendment of pleading, the general rule, no doubt, is that a party is not allowed by amendment to build up a new case on a new cause of action, particularly when a suit on the new case or cause of action is barred by time. But, it is also well recognised that, where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment is allowed even after expiry of the statutory period of limitation. AIR 1978 SC 484 and AIR 1981 All. 410 relied on. [Para 4]

       (2) Specific Relief Act, 1963 -S.16 (C)d`required averments not pleaded -plaintiff cannot be held to have pleaded cause of action.

       In a suit for specific performance of a contract, the plaintiff cannot succeed if he fails to fulfil any of these two obligations enjoined by law. In the absence of such an averment in the plaint as required by section 16 (c) ibid, the plaintiff cannot be held to have pleaded cause of action for the relief of specific performance. AIR 1981 All. 410, AIR 1968 SC 1355 and (1909) 2 SCC 539 relied on. [Para 5]

       

JUDGMENT :

( 1. ) THE petition is for revision of an order dated 10-4-1985 whereby, in civil suit No. 33-A of 1978 instituted by the petitioners against the respondents, Second additional District Judge, Vidisha, dismissed an application for amendment of the plaint.

( 2. ) THE case of the petitioners-plaintiffs was that, on 29-6-1972, the respondents defendants entered into an agreement to sell certain fields to them for a consideration of Rs. 38,332/- out of which a sum of Rs. 5000/- was paid at the time of the agreement and the balance was agreed to be paid by 6 annual instalments commencing from 30-7-1973. The last instalment of Rs. 4,381/- payable on 30-7-1978 was to be paid before the sub-Registrar at the time of registration of the sale-deed. The term No. 7 of the agreement provided that the petitioners would not be entitled to alienate the fields or incur loan on security thereof without consent of the respondents without getting the sale-deed executed in their favour and the respondents would also not be entitled to do so. Possession of the fields was also delivered to the petitioners. The first five instalments were paid by the petitioners as per terms of the agreement. In the month of july 1972, they called upon respondents to accept the amount of the last instalment before the Sub-Registrar and execute the sale deed as per terms of the agreement but, on 29-6-1972, they declined to do so unless the above-mentioned term No. 7 of the agreement was stated therein. Notices were also sent by them to the respondents, but in vain. The term No. 7 of the agreement was operative only for the period till execution and registration of the sale-deed, and therefore, it was not necessary to state it in the sale-deed. As the respondents were not prepared to execute the sale-deed, unless that term was incorporated therein, the petitioners claimed a declaration that the said term was binding only till execution and registration of the sale-deed and it was not necessary to incorporate it in the sale-deed. They further claimed a perpetual injunction restraining the respondents from interfering with their possession over the fields.

( 3. ) AT the stage of evidence, an application for amendment of the plaint was filed on behalf of the petitioners who thereby wanted to plead that they were and would ever be prepared to get the sale-deed executed and registered and that, in the alternative, they claimed specific performance of the agreement of sale. The Trial court was of the view that the claim for specific performance having become barred by time the amendment could not be allowed. Accordingly, it dismissed the application vide the impugned order. ( 4. ) IN the matter of amendment of pleading, the general rule, no doubt, is that a party is not allowed by amendment to set up a new case on a new cause of action, particularly when a suit on the new case or cause of action is barred by time, But, it is also well recognised that, where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment is allowed even after expiry of the statutory period of limitation. The expression cause of action in the present context means a new claim made on a new basis constituted by new facts. The words new case have been understood to mean new set of ideas. No amendment can be allowed to introduce a new set of ideas to prejudice of any right acquired by the opposite party by lapse of time. Decision of their Lordships of the Supreme Court in the case of A K. Gupta and Sons Ltd. vs. Damodar Valley Corporation, AIR 1967 SC 96, may be referred to in that connection. Referring to Rules 2, 4, 5, 6, 7 and 17 of order in of the Code of Civil Procedure in the case of M/s Ganesh Trading Co. vs. Moji ram, AIR 1978 SC 484. Their Lordships observed -

" It is clear from foregoing summary of the main rules of pleadings that provisions for the am








Click Here to Read the rest of this document

1
2
3
4
5
6
7
8
9
10
11
SupremeToday Portrait Ad
supreme today icon
logo-black

An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers

Please visit our Training & Support
Center or Contact Us for assistance

qr

Scan Me!

India’s Legal research and Law Firm App, Download now!

For Daily Legal Updates, Join us on :

whatsapp-icon telegram-icon
whatsapp-icon Back to top