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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 ..... respondent / plaintiff from claiming by way of amendment the relief which was held to be barred by Order II Rule 2 of the CPC - Dismissal of a suit as barred by Order II Rule 2 of the CPC would not amount to claim of damages having been heard and finally decided by the Court. There is no merit in the plea of the order allowing amendment to be bad for the reason of the claim sought to be made by amendment being barred by Order II Rule 2 of the CPC. Time Limitation - HELD THAT:- The senior counsel for the petitioner / defendant contends that there is a difference in a claim for damages in a suit for specific performance of an Agreement of Sale and damages for defamation for which a special period of limitation has been provided - it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eard. 7. The respondent / plaintiff instituted the suit from which this petition arises for permanent injunction to restrain the petitioner / defendant from spreading defamation amongst colleagues, staff and all concerned in Hospital and society at large . 8. By way of amendment, the respondent / plaintiff wanted to add the relief of damages in the sum of ₹ 3,00,000/- for defamation, in addition to the relief of injunction. 9. The senior counsel for the petitioner / defendant has argued that though as per settled law the bar of Order II Rule 2 of the CPC would not apply for seeking an amendment but in the present case the respondent / plaintiff, after the institution of the suit for permanent injunction from which this petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s barred by Order II Rule 2 of the CPC would not amount to claim of damages having been heard and finally decided by the Court. 11. The senior counsel for the petitioner / defendant has himself drawn attention to Order VII Rule 13 of the CPC which in the event of rejection of the plaint does not preclude presentation of a fresh plaint. Applying the said provision also, the claim by way of amendment would be barred. 12. The senior counsel for the petitioner / defendant however states that the same will be subject to limitation. 13. That being a separate ground taken for rejection, would be considered thereunder. 14. There is thus no merit in the plea of the order allowing amendment to be bad for the reason of the claim sought to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her in addition to, or in substitution for, such injunction and the court may, if it thinks fit, award such damages. (2) No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint: PROVIDED that where no such damages have been claimed in the plaint, the court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including such claim. (3) The dismissal of a suit to prevent the breach of an obligation existing in favor of the plaintiff shall bar his right to sue for damages for such breach. 19. The senior counsel for the petitioner / defendant on enquiry states that he has not found any judgment on Section 40 supra. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Explanation : The circumstance that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred by this section. and qua which law is well settled that the claim for damages can be permitted to be made at any time, even if barred by time. 21. The senior counsel for the petitioner / defendant contends that there is a difference in a claim for damages in a suit for specific performance of an Agreement of Sale and damages for defamation for which a special period of limitation has been provided. 22. I have twice enquired from the senior counsel for the petitioner / defendant, whether the petitioner / defendant desires adjudication of the said question at this sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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