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Issues:
- Suit for mandatory injunction for restoration of earth - Maintainability of the suit under S. 41(h) of the Specific Relief Act, 1963 - Amendment of the plaint for claiming damages in the alternative - Barred appeal by time due to delay in filing certified copies of judgments - Justifiability of condoning the delay - Allowance of the amendment during the pendency of the appeal - Interpretation of the term "proceeding" in the Proviso to sub-section (2) of S. 40 of the Specific Relief Act Analysis: The plaintiff filed a suit against the defendants claiming a mandatory injunction for the restoration of earth allegedly excavated by the defendants from the plaintiff's land. The trial court dismissed the suit, citing the availability of an equally efficacious remedy of damages and the plaintiff's failure to claim damages, as prohibited by S. 40(2) of the Act. The plaintiff appealed, seeking an opportunity to amend the plaint for claiming damages in the alternative. The lower appellate court allowed the amendment, set aside the trial court's judgment, and remitted the case back. The defendants appealed in the second appeal, challenging the amendment and seeking to bar the appeal due to a delay in filing certified copies of judgments. The appeal was found to be hopelessly barred by time, as the appellants failed to file certified copies within the limitation period. The court noted the negligence of the clerk and the appellant in delaying the filing, despite having the necessary copies. The court rejected the argument that the appellant should not suffer for the clerk's mistake, emphasizing the need to explain each day's delay. The court concluded that the appellants failed to provide sufficient cause for the delay, leading to the dismissal of the appeal on this ground. On the merits, the appellant contended that the amendment allowing damages could not be granted during the pendency of the appeal. However, the court disagreed, citing the Proviso to sub-section (2) of S. 40, which mandates the court to allow the amendment at any stage of the proceeding. The term "proceeding" was interpreted to include appeals, as an appeal is considered a continuation of the suit. Precedents from the Bombay and Madras High Courts supported this interpretation, emphasizing that suits and appeals are to be regarded as one legal proceeding. Ultimately, the court dismissed the appeal, upholding the allowance of the amendment during the appeal and emphasizing the mandatory nature of the Proviso to sub-section (2) of S. 40. The parties were directed to bear their own costs, and the appeal was officially dismissed.
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