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TMI Blog2013 (9) TMI 1200X X X X Extracts X X X X X X X X Extracts X X X X ..... rom dealing with the suit property in any manner prejudicial to the interest of the plaintiffs. By way of amendment, which has been allowed by the Trial Court, a relief of specific performance of contract and for possession of the suit property, has been asked for and certain facts to claim such relief are pleaded. 3. The petitioner is the original defendant No.1, the respondent Nos.1 and 2 are the original plaintiffs, and the respondent Nos.3 and 4 are the original defendant Nos.2 and 3, who are supporting the plaintiffs. The parties shall hereinafter be called according to their original status as the plaintiffs and the defendants. 4. The facts in detail are as under : The suit property is the land bearing Survey Nos.87- A/1/1, 87-A-3 and 87-B of Village Aundh, Tq. and Dist. Pune, admeasuring 104 acres, which was held by one Ramesh Vakratund Dev, a beneficiary of Inam land under the Inam Act, 1859, who lost the right, title and interest in the suit property by virtue of the Bombay Inam Abolition Act, 1959, which came into force with effect from 20-6-1953. One Mirashi family claimed to be the tenants of said Ramesh Vakratund Dev when the Bombay Inam Abolition Act, 1959 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id to have been held in the meeting dated 18-5-1991 for purchase of the suit property; (ii) the oral memorandum of understanding dated 20-11-1991 and the oral supplementary agreement dated 17-4-1992, said to have been entered into between the plaintiffs and the defendant Nos.2 and 3; and (iii) the resolution said to have been passed in the meeting of the Board of Directors of the defendant No.1-Company held on 20-6-1997, accepting to execute the sale-deed in favour of the clients of the plaintiff No.2, including the defendant No.2 or any other Trust, Company, person and/or persons, and to sign the consent terms in Suit No.997 of 1983 alongwith necessary documents. It is the averment that thus the offer given by the defendant No.1 to the plaintiff No.2 on 18-5-1991 was accepted by the defendant No.1, which became a concluded contract between the plaintiff and the defendant No.1 to sell/transfer right, title and interest in the suit property. 7. The reference is made in the plaint to - (i) the letter dated 6-6-1991, said to have been issued by the defendant No.1 to the plaintiff No.2, informing the decision in the meeting held on 18-5-1991; (ii) the notice dated 10-11-1998, said t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any concern with the suit property. I again say that through notice dated 10-11-1988, defendant No.1 called upon me for inspection of certain documents, which were produced by defendant No.2 before defendant No.1. It is true to say that after 1988, there was no written correspondence between both the plaintiffs and defendant No.1. 3. I do not know the exact market price of the suit land at the relevant time. It is true to say that Exh.50 bears price of suit land as ₹ 2.3 Crores. It is true to say that till today, I have not filed any suit for specific performance of contract with respect to the suit land against defendant No.1. 4. It is true to say that the defendant No.1 had never executed any document with plaintiff No.1 and defendant No.2 3 with respect to the suit land. I have not filed suit for specific performance against defendant No.2 and 3 with respect to the suit land. In para 7 of the cross-examination, the said witness stated as under : ... It is not true to say that plaintiff No.1 and 2 never paid any amount to defendant No.1. Plaintiff is having written document to establish it and plaintiff will produce the same. ... 10. The defendant N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the said relief on the touchstone of the point of limitation. 13. On reconsideration of the matter, the Trial Court passed an order below Exhibit 68 on 28-11-2012, allowing the said application for amendment recording the finding that indirectly it is the suit for specific performance of contract. The Court has directed the plaintiffs to correct the valuation and to pay the deficit court fee. The deficit court fee has been deposited. If the prayer for specific performance of contract is allowed, it will not change the basic structure of the suit and, therefore, the additional pleadings connected with such prayer cannot be denied, otherwise it will cause prejudice to the plaintiffs to seek a complete relief. In such peculiar circumstances, it cannot be said that the plaintiffs are not diligent in filing the amendment application. The Court has held that the issue of limitation can be decided at the trial of the suit and it cannot be a bar to the amendment as sought for. Undisputedly, the suit is being tried by the Civil Judge, Senior Division, and hence there would be no change in the forum in spite of amendment. 14. Initially, the matter was listed before this Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the Court on the point and suggested that the notice be given to the members of the Bar. Accordingly, a notice of the aforesaid order was given to the Bar Council of Maharashtra Goa on 26-7-2013; in response to which, this Court had pleasure to hear the arguments of the learned counsels Shri A.V. Anturkar, Shri Shriram Kulkarni, Ms Deepa Ahuja, Shri Amit A. Gharte and Shri Advit M. Sethna, who have voluntarily come forward to assist the Court in deciding such question of law. 17. By a separate common judgment pronounced today, i.e. 25-9-2013, in Writ Petitions Nos.722 of 2013 and 5775 of 2012 and Civil Revision Application No.482 of 2012, the question of law so framed, has been decided, holding that the exercise of jurisdiction by the High Court under the provisions of Section 115 of the Civil Procedure Code, or under Article 226 or 227 of the Constitution of India, will depend upon the facts and circumstances of each case and there is no absolute bar by way of an alternate remedy of challenging an interlocutory order after the final decision of the case. The relevant portion is contained in paragraph 8 of the said judgment, which is reproduced below : 8. It is not the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order allowing the application for amendment. 19. It is his further submission that the view taken by the Trial Court that the amendment proposed neither does change the nature of suit, nor cause of action, that there is no lack of due diligence and that the amendment is necessary for deciding the real controversy involved in the matter, is based upon the factual aspect, which normally cannot be gone into by the High Court under Article 226 or 227 of the Constitution of India to substitute its own view by appreciating or re-appreciating the material on record. He, therefore, submits that the petition should be dismissed on this ground also. 20. I have dealt with this aspect in detail in a separate judgment delivered today in this petition deciding the question of law framed and laying down the guidelines after discussing various decisions of the Apex Court, for exercise of jurisdiction under Articles 226 and 227 of the Constitution of India. The relevant portion is contained in paras 97 to 100 of the said judgment, which are reproduced below : 97. The challenge to an order granting or refusing to grant an amendment can be entertained by the High Court in its jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 227 of the Constitution of India, the High Court can substitute the view taken by the Trial Court and can pass all such orders, which the Trial Court is empowered to pass. 100. No doubt, that any order passed on the application for amendment remains an interlocutory order and the correctness or legality of it on any ground, can be challenged in an appeal from a decree or a final decision. It will, therefore, depend upon the facts and circumstances of each case as to whether such a petition should be entertained or not. In a given case, keeping in view the nature of the order, the stage at which it is passed, and the grounds of challenges, the High Court may refuse to entertain a petition and can leave the party an option to challenge it in an appeal after a final decision. But in case of an order of amendment, ig the High Court may have to consider the question of lack of due diligence, or presence of due diligence, or change in the nature of suit, or cause of action for the purposes of limitation, or the amendment sought is not bona fide, but only to protract the litigation, and interfere at an interlocutory stage itself under Article 227 of the Constitution of India, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng finding on the question of due diligence, the Court shall not get jurisdiction either to allow or disallow an amendment in the pleadings after the commencement of the trial. (e) The Court while allowing an amendment must record a finding that in spite of due diligence, the party could not have raised the matter before the commencement of the trial, or that the events sought to igbe brought on record by way of an amendment have occurred subsequent to the commencement of trial. (f) The facts and grounds in the application for amendment must be clearly stated to bring out a case that the delay caused was beyond the control and diligence of the party proposing the amendment. (g) Where a party had acted with due diligence or not, would depend upon the facts and circumstances of the case and no hard and fast rule or strait-jacket formula can be laid down. 23. To deal with the question of due diligence involved in the present case, the material averments made in the application at Exhibit 68 for amendment, needs to be seen, which are contained in paras 1, 2 and 8, reproduced below : 1. That by an order dated 23/11/2010 passed below Exh.1, this Hon'ble court has d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing on record to show that the plaintiffs had no knowledge that such a claim was required to be made in the plaint, or that the relief of specific performance and/or possession could not have been claimed when the suit was filed in the month of January 2003. Hence, it could not be a matter of bona fide mistake. The pleadings in the application do not make out a case that despite exercise of due diligence, the matter could not be raised initially. There is no change in the facts and circumstances of the case pleaded after the issues were framed on 4-2-2008 and an examination-in-chief of the plaintiff No.2 filed on 17-12-2008, or when the cross-examination was concluded on 21-3-2009 so as to enable the plaintiffs for the first time to seek a relief of specific performance of contract and possession. The plaintiffs have failed to establish that the delay caused was for some bona fide reasons that the application for amendment was moved with due diligence. The Trial Court ought to have seen that in the absence of pleading of material facts in the application for amendment, the plaintiffs have failed to establish due diligence, and allowing an amendment shall cause an injury of an irre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final decision, and is trying to prolong the transaction. Hence, the plaintiffs have claimed the reliefs as under : i. It be declared that there is a concluded conditional Contract between the Plaintiffs and the Defendant No.1 for transfer of right, title and interest in the property mentioned in the Schedule in favour of the Plaintiffs and/or in favour of the Defendant No.2 or any person as may be mentioned by the Plaintiffs. ii. It be further declared that the Defendant No.1 is under obligation to comply with the conditions of obtaining permissions from the Honourable High Court and also to obtain permission from the Income Tax Department or any other Authority under any Law for the time being in force for conveying the right, title and interest in the property described in the Schedule to this Plaint in favour of the Plaintiffs or the persons named by the Plaintiffs. iii. The Defendant No.1 be permanently restrained from dealing with the property mentioned in Schedule written hereunder in any other manner prejudicial to the interest of the Plaintiffs. iv. Temporary Injunction in terms of Prayer Clause (iii) above may be issued during the pendency of the Suit. v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y accepting balance consideration amount. (ib) If the Defendant No.1 fails to execute the sale Deed or any other appropriate legal documents of transfer, then commissioner may kindly be appointed to execute such documents. 29. The question is whether the amendment, as proposed, is necessary to decide the real controversy involved in the suit and/or to avoid the multiplicity of the litigation, as has been held by the Trial Court. The substantial amendment proposed to be introduced is in paragraph 15C to convert the suit for declaration into one for specific performance of contract with the averment of readiness and willingness on the part of the plaintiffs to pay the remaining consideration amount to the defendant No.1. The proposed amendment also changes the valuation of the suit for the purposes of court fee and jurisdiction to ₹ 2.3 crores and the claim for specific performance of the oral agreement said to have been entered into between the plaintiffs and the defendant No.1 by accepting the balance amount of consideration. It was not an amendment of clarificatory or explanatory in nature, as urged. 30. In a suit for specific performance of contract, an issue may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of limitation. (c) In a suit for mandatory injunction directing the defendant to comply with the terms of the agreement, an application for amendment introducing a claim for specific performance of contract may be refused if the cause of action required to be stated initially in the plaint, is not pleaded, and while introducing a cause of action by way of amendment, a bar of limitation operates since the date of inception of the suit. ig(d) In a suit for declaration that the contract between the parties subsists and the defendant is bound by the terms and also for grant of permanent injunction restraining the defendant from alienating the suit property in any manner, a claim for specific performance of contract by way of an amendment may be refused if there is no foundation laid in the plaint for that purpose, because it would amount to changing the nature or the basic structure of the suit and the cause of action having regard to a bar of limitation since the date of inception of the suit. In the light of the aforesaid law laid down, the contentions raised are considered below. 32. To claim a relief of specific performance of contract, the pleadings in the plaint have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed. 33. The cause of action for filing the suit in question, as is mentioned in the original plaint, was the failure on the part of the defendant No.1 to take appropriate steps to obtain permission from this Court in Suit No.997 of 1983, to sign the necessary documents under the Income-tax Act, to obtain permission under Section 269 therein, and to execute the necessary documents of transfer of right, title and interest in favour of the plaintiffs and/or in favour of the defendant No.2, as is mentioned in the plaint. In para 17 of the plaint, it is alleged that the cause of action for the suit arose, firstly, on 18-5-1991, when the defendant No.1 agreed to alienate the right, title and interest in the property mentioned in para 1 of the plaint on the terms and conditions mentioned in para 5 therein. Thereafter, the date of 18-5-1991, on which the defendant No.1 is said to have taken the decision, which was communicated on 6-6-1991, and the dates of 20-11-1991, 20-6-1997, 10-11-1998 and 10-12-1998, on which various steps were taken, have been mentioned. It is further alleged that the cause of action arose in the month of February 1999, July 1999, January 2000, August 2000, an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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