J.Samuel & Ors vs Gattu Mhesh & Ors

J. Samuel and Others .... Appellant (s)

Versus

Gattu Mahesh and Others .... Respondent(s)

J U D G M E N T

P. Sathasivam, J.

1) Leave granted.

2) This appeal is filed against the final judgment and order

dated 08.02.2011 passed by the High Court of Andhra

Pradesh at Hyderabad in Civil Revision Petition No. 5162 of

2010 whereby the High Court while setting aside the order

dated 20.10.2010 passed by the II Additional District Judge,

Karimnagar at Jagtial, allowed the revision petition filed by the

respondents herein.

1 3) Brief Facts:

a) The Diocese at Karimnagar was incorporated on

12.03.1978 from its parent Diocese of Dornakal. On

22.08.1985, the Retired Diocesan Treasurer and Property

Secretary, Karimnagar, issued a publication in the paper to

auction the land bearing Survey No. 43, admeasuring Ac. 3.31

gts. situated at Mission Compound, Dharmapuri Road, Jagtial

and the last date to receive the tenders was fixed as

05.09.1985. On 13.09.1985, the sealed tenders were opened

and Gattu Mahesh-Respondent No. 1 herein and Kotha

Mohan-Respondent No. 2 herein, Managing Partners in M/s

Jagath Swapna & Co. put tenders for an amount of

Rs. 24,55,569/- along with a DD for an amount of

Rs.2,45,556/- which is 10% of the EMD. They being the

highest bidders, their tenders were accepted.

b) The contract for sale of property was entered into

between the Respondent Nos. 1 and 2 herein with Karimnagar

Diocese on 27.09.1985. It was mentioned in the contract that

Karimnagar Diocese agreed to receive Rs. 2,50,000/- on or

before 08.11.1985 because the land under sale was under

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dispute and the balance amount was to the paid by the

respondents herein only after getting final dropping of the land

acquisition proposal by the Municipality, Jagtial and sanction

of layout by the Municipality, Jagtial. On 03.04.2003,

Respondent Nos. 1 and 2 herein issued a legal notice to

Karimnagar Diocese informing that the land acquisition

proceedings were dropped on 05.05.1986 and the sanction of

layout by the Municipality, Jagtial was completed on

28.12.1989 and to execute and register the sale deed in their

favour as per the agreement dated 27.09.1985.

c) In the absence of adequate response from Karimnagar

Diocese, Respondent Nos. 1 and 2 filed O.S. No. 9 of 2004 in

the Court of II Additional District Judge, Karimnagar at Jagtial

for specific performance of the contract of sale and for

perpetual injunction. During the pendency of the suit,

Karimnagar Diocese filed written statement pointing out the

inherent defects, namely, absence of mandatory requirements

of Section 16(c) of Specific Relief Act and Form 47, Appendix

`A' of the Code of Civil Procedure, 1908. On 24.09.2010,

respondent Nos. 1 and 2 herein filed I.A. No. 1078 of 2010 in

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O.S. No. 9 of 2004 under Order VI, Rule 17 of the Code

seeking amendment of the plaint to incorporate specific

pleading in compliance of the above section of the Specific

Relief Act and the Code on the ground that the same was

missed due to typographical error. On 04.10.2010,

Karimnagar Diocese filed counter affidavit resisting the

application.

d) By order dated 20.10.2010, the II Additional District

Judge dismissed the application for amendment filed by the

Respondent Nos. 1 and 2 herein. Aggrieved by the order, the

Respondents herein approached the High Court by filing Civil

Revision Petition being No. 5162 of 2010. The High Court, by

impugned order dated 08.02.2011, allowed the amendment

sought for by the Respondent Nos. 1 and 2 herein.

e) Aggrieved by the said decision, the respondents have

preferred this appeal by way of special leave petition before

this Court.

4) Heard Mr. A. Subba Rao, learned counsel for the

appellants and Mr. K. Swami, learned counsel for the

respondents.

4 5) The only point for consideration in this appeal is whether

the High Court is right in allowing the application filed under

Order VI Rule 17 CPC for amendment of the plaint which was

filed after conclusion of trial and reserving the matter for

orders.

6) Based on the agreement dated 27.07.1985 which relates

to sale of 3 acres and 31 gunthas of land in Survey No. 43

situate in Mission Compound, Dharmapuri Road at Jagtial for

a consideration of Rs.24,55,569/-, the respondents/plaintiffs

filed the said suit for specific performance. Since we have

already mentioned factual details, there is no need to refer the

same excepting the details relating to the petition filed under

Order VI Rule 17. After filing written statement by the

contesting defendants, the trial of the suit commenced and

admittedly both parties adduced the evidence on their behalf

and arguments on behalf of both the sides were heard and

completed on 22.09.2010. On that day, the Court reserved

the matter for orders. Meanwhile, on 24.09.2010, the

respondents herein filed a petition praying for amendment of

the plaint. In support of the said application, plaintiff No.2

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has filed an affidavit stating that in para 11of the plaint he has

stated about the legal notice issued on 03.04.2003 to

defendant Nos. 1 to 7 for specific performance of agreement of

sale dated 27.09.1985 and there was no reply for it. In para 3

of the affidavit, the deponent has stated that by type mistake,

the following sentences have missed. After para 11 of the

plaint, the following para 12 may be added. "We are and has

been and still is ready and willing specifically to perform the

agreement of sale dated 27.09.1985 on our part of which the

defendants have, had noticed. I am ready with the balance

amount as per agreement of sale dated 27.09.1985. I submit

the para nos. 12-18 of the plaint may be changed as 13 to 19."

The only reason given by the plaintiffs praying for amendment

and inclusion of the above averment in the plaint is "type

mistake". It is also stated that it happened in spite of their

due diligence.

7) The above claim was resisted by the appellants herein by

filing detailed counter affidavit. Apart from disputing the

merits of the claim of the plaintiffs, with regard to the petition

under Order VI Rule 17 they specifically stated that after

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passing several stages in the protracted trial, the final

arguments of the plaintiff in the suit were heard on

20.09.2010. The defendants have also filed their written

arguments on 22.09.2010 wherein the inherent defect of

plaintiff i.e. absence of averments of mandatory requirements

of Section 16(c) Explanation (ii) and Form 47 Appendix A of

CPC was pointed out. Even after this, further argument was

made by both the parties and the counsel for the plaintiff

informed the court that no further time is required and the

matter may be posted for judgment. In view of the same, the

learned trial Judge posted the matter to 04.10.2010 for

judgment. Only at this juncture i.e. on 24.09.2010, plaintiffs

came up with the present petition seeking amendment to

incorporate specific pleading in compliance with Section 16 (c)

of the Specific Relief Act and Form 47 of Appendix A CPC on

the ground that the same was missed due to "type mistake" in

spite of due diligence. Though the said claim was not

acceptable by the trial Court, the High Court allowed the

plaintiff to amend the plaint as prayed for.

7 8) Before considering the acceptability or otherwise of the

reasoning of the High Court, it is useful to refer Order VI Rule

17 CPC.

"17. Amendment of pleadings.- The Court may at any

stage of the proceedings allow either party to alter or amend

his pleadings in such manner and on such terms as may be

just, and all such amendments shall be made as may be

necessary for the purpose of determining the real questions

in controversy between the parties.

Provided that no application for amendment shall be

allowed after the trial has commenced, unless the Court

comes to the conclusion that in spite of due diligence, the

party could not have raised the matter before the

commencement of trial."

The said provision was omitted by the Civil Procedure Code

(Amendment) Act, 1999. Section 16 of the Amendment Act

reads as under:

"16. Amendment of Order 6 - In the First Schedule, in Order

6,--

***

(iii) Rules 17 and 18 shall be omitted."

After stiff resistance by the litigants and the members of the

bar, again Order VI Rule 17 was re-introduced with proviso

appended therein. As per the said proviso, no application for

amendment shall be allowed after the trial has commenced.

However, there is an exception to the said rule, i.e., if the court

comes to the conclusion that in spite of due diligence, the

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party could not have raised the matter before the

commencement of the trial, such application for amendment

may be allowed.

9) Before proceeding further, it is also useful to refer

Section 16(c) of Specific Relief Act which reads as under:

"16. Personal bars to relief.- Specific performance of a

contract cannot be enforced in favour of a person-

(a) xxx

(b) xxx

(c) who fails to aver and prove that he has performed or has

always been ready and willing to perform the essential terms

of the contract which are to be performed by him, other than

terms the performance of which has been prevented or

waived by the defendant.

Explanation.- For the purposes of clause (c),-

(i) where a contract involves the payment of money, it is not

essential for the plaintiff to actually tender to the defendant

or to deposit in Court any money except when so directed by

the Court;

(ii) the plaintiff must aver performance of, or readiness and

willingness to perform, the contract according to its true

construction."

It is clear that in a suit for specific performance of a contract,

unless there is a specific averment that he has performed or

has always been ready and willing to perform the essential

terms of the contract, the suit filed by him is liable to be

dismissed. In other words, in the absence of the above said

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claim that he is always ready and willing to perform his part of

the contract, the decree for specific performance cannot be

granted by the Court.

10) In this legal background, we have to once again

recapitulate the factual details. In the case on hand, Suit O.S.

No. 9 of 2004 after prolonged trial came to an end in

September, 2010. The application for amendment under

Order VI Rule 17 CPC was filed on 24.09.2010 that is after the

arguments were concluded on 22.09.2010 and the matter was

posted for judgment on 04.10.2010. We have already

mentioned that Section 16(c) of the Specific Relief Act

contemplates that specific averments have to be made in the

plaint that he has performed and has always been willing to

perform the essential terms of the Act which have to be

performed by him. This is an essential ingredient of Section

16(c) and the form prescribes for the due performance. The

proviso inserted in Rule 17 clearly states that no amendment

shall be allowed after the trial has commenced except when

the court comes to the conclusion that in spite of due

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diligence, the party could not have raised the matter before the

commencement of the trial.

11) As stated earlier, in the present case, the amendment

application itself was filed only on 24.09.2010 after the

arguments were completed and the matter was posted for

judgment on 04.10.2010. On proper interpretation of proviso

to Rule 17 of Order VI, the party has to satisfy the Court that

he could not have discovered that ground which was pleaded

by amendment, in spite of due diligence. No doubt, Rule 17

confers power on the court to amend the pleadings at any

stage of the proceedings. However, proviso restricts that

power once the trial has commenced. Unless the Court

satisfies that there is a reasonable cause for allowing the

amendment normally the court has to reject such request. An

argument was advanced that since in the legal notice sent

before filing of the suit, there is reference to readiness and

willingness and the plaintiff has also led in evidence, nothing

precluded the court from entertaining the said application

with which we are unable to accept in the light of Section 16(c)

of the Specific Relief Act as well as proviso to Order VI Rule 17.

11 The only reason stated so in the form of an affidavit is

omission by "type mistake". Admittedly, it is not an omission

to mention a word or an arithmetical number. The omission is

with reference to specific plea which is mandated in terms of

Section 16(c) of the Specific Relief Act.

12) The primary aim of the court is to try the case on its

merits and ensure that the rule of justice prevails. For this the

need is for the true facts of the case to be placed before the

court so that the court has access to all the relevant

information in coming to its decision. Therefore, at times it is

required to permit parties to amend their plaints. The Court's

discretion to grant permission for a party to amend his

pleading lies on two conditions, firstly, no injustice must be

done to the other side and secondly, the amendment must be

necessary for the purpose of determining the real question in

controversy between the parties. However to balance the

interests of the parties in pursuit of doing justice, the proviso

has been added which clearly states that: no application for

amendment shall be allowed after the trial has commenced,

unless the court comes to the conclusion that in spite of due

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diligence, the party could not have raised the matter before the

commencement of trial.

13) Due diligence is the idea that reasonable investigation is

necessary before certain kinds of relief are requested. Duly

diligent efforts are a requirement for a party seeking to use the

adjudicatory mechanism to attain an anticipated relief. An

advocate representing someone must engage in due diligence

to determine that the representations made are factually

accurate and sufficient. The term `Due diligence' is specifically

used in the Code so as to provide a test for determining

whether to exercise the discretion in situations of requested

amendment after the commencement of trial.

14) A party requesting a relief stemming out of a claim is

required to exercise due diligence and is a requirement which

cannot be dispensed with. The term "due diligence" determines

the scope of a party's constructive knowledge, claim and is

very critical to the outcome of the suit.

15) In the given facts, there is a clear lack of `due diligence'

and the mistake committed certainly does not come within the

preview of a typographical error. The term typographical error

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is defined as a mistake made in the printed/typed material

during a printing/typing process. The term includes errors

due to mechanical failure or slips of the hand or finger, but

usually excludes errors of ignorance. Therefore the act of

neglecting to perform an action which one has an obligation to

do cannot be called as a typographical error. As a consequence

the plea of typographical error cannot be entertained in this

regard since the situation is of lack of due diligence wherein

such amendment is impliedly barred under the Code.

16) The claim of typographical error/mistake is baseless and

cannot be accepted. In fact, had the person who prepared the

plaint, signed and verified the plaint showed some attention,

this omission could have been noticed and rectified there

itself. In such circumstances, it cannot be construed that due

diligence was adhered to and in any event, omission of

mandatory requirement running into 3 to 4 sentences cannot

be a typographical error as claimed by the plaintiffs. All these

aspects have been rightly considered and concluded by the

trial court and the High Court has committed an error in

accepting the explanation that it was a typographical error to

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mention and it was an accidental slip. Though the counsel for

the appellants have cited many decisions, on perusal, we are

of the view that some of those cases have been decided prior to

the insertion of Order VI Rule 17 with proviso or on the

peculiar facts of that case. This Court in various decisions

upheld the power that in deserving cases, the Court can allow

delayed amendment by compensating the other side by

awarding costs. The entire object of the amendment to Order

VI Rule 17 as introduced in 2002 is to stall filing of application

for amending a pleading subsequent to the commencement of

trial, to avoid surprises and that the parties had sufficient

knowledge of other's case. It also helps checking the delays in

filing the applications. [vide Aniglase Yohannan vs.

Ramlatha and Others, (2005) 7 SCC 534, Ajendraprasadji

N. Pandey and Another vs. Swami Keshavprakeshdasji N.

and Others, Chander Kanta Bansal vs. Rajinder Singh

Anand, (2008) 5 SCC 117, Rajkumar Guraward (dead)

through LRS. vs. S.K.Sarwagi and Company Private

Limited and Another, (2008) 14 SCC 364, Vidyabai and

Others vs. Padmalatha and Another, (2009) 2 SCC 409,

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Man Kaur (dead) By LRS vs. Hartar Singh Sangha, (2010)

10 SCC 512.

17) In the light of the above discussion, we are in entire

agreement with the conclusion arrived by the Trial Court and

unable to accept the reasoning of the High Court. Accordingly,

the order dated 08.02.2011 passed in Civil Revision Petition

No. 5162 is set aside.

18) The civil appeal is allowed with no order as to costs.

.................................................J.

(P. SATHASIVAM)

...............................................J.

(J. CHELAMESWAR)

NEW DELHI;

JANUARY 16, 2012.

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