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TMI Blog2017 (8) TMI 1650X X X X Extracts X X X X X X X X Extracts X X X X ..... s Hazari Courts, Delhi) allowing the application of the respondent / plaintiff for amendment of the plaint. 4. The petitioner / defendant in the petition has raised two grounds. Firstly, that the claim added by way of amendment was barred by Order II Rule 2 of the Code of Civil Procedure, 1908 (CPC) and secondly that the claim sought to be added by way of amendment was barred by time. 5. The learned Civil Judge in the impugned order has held that Order II Rule 2 of the CPC has no application to amendment in a pending suit and qua limitation, that the said question did not arise in view of Section 40 of the Specific Relief Act, 1963. 6. The senior counsel for the petitioner / defendant has been heard. 7. The respondent / plaintiff instit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta within the meaning of Section 11 of the CPC, to bar the respondent / plaintiff from claiming by way of amendment the relief which was held to be barred by Order II Rule 2 of the CPC. The words used in Section 11 of the CPC bar the Court from trying any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit' between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Dismissal of a suit as barred by Order II Rule 2 of the CPC would not amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent are not to be gone into at the stage of considering the application for amendment. 17. The senior counsel though agreeing contends that however where the claim sought to be added by way of amendment is apparently barred by time, amendment should not be allowed. 18. The learned Civil Judge has reasoned that addition of the claim for damages to the claim for injunction was permitted to be added at any time as per Section 40 of the Specific Relief Act, 1963 which is as under:- "40. Damages in lieu of, or in addition to, injunction - (1) The plaintiff in a suit for perpetual injunction under section 38, or mandatory injunction under section 39, may claim damages either in addition to, or in substitution for, such injunction and the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly. (4) In determining the amount of any compensation awarded under this section, the court shall be guided by the principles specified in section 73 of the Indian Contract Act, 1872. (5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint: PROVIDED that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation. Explanation : The circumstance that the contract has become incapable of specific perfo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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