Geeta Dhawan v. Anu Mehra & Anr.

11. He submits that the trial is yet to commence in the present suit, inasmuch as, the suit is at the stage of admission/denial of documents and even the joint schedule of documents has not been filed, therefore, no prejudice will be caused to the defendant no.1 in case the amendment is allowed. In support of his submission, Mr. Sethi has referred to the decision of the Hon’ble Supreme Court in Rajkumar Gurawara vs. S.K. Sarwagi and Co. (P) Ltd., (2008) 14 SCC 364.

12. He submits that there is no fundamental change in the nature and character of the suit by the additional relief of specific performance now being sought, which the plaintiff could not seek earlier as there was a status quo order in operation with regard to the suit property.

13. Learned Senior Counsel Mr. Dayan Krishnan, who also appears on behalf of the plaintiff, articulated the basic principles to be taken into consideration while allowing or rejecting the application for amendment as enumerated by the Hon’ble Supreme Court in its decision in Revajeetu Builders & Developers v. Narayanaswamy & Sons. (2009) 10 SCC 84.

14. Per contra, Mr. Ramesh Singh, the learned Senior Counsel for the defendant no.1/non-applicant submits that the suit property, prior to entering into the Agreement to Sell, had been let out to a partnership which was running a guest house from the said premises namely M/s Maharani Guest House, a unit of Laguna Restaurant, in which the plaintiff was one of the partners. He submits that M/s Maharani Guest House had raised certain illegal and unauthorised construction on the suit property, however, no permission was granted by the owner or sought from the relevant authorities.

15. He submits that the said illegal constructions were the primary reasons for re-entry by L&DO. The defendant no.1 was thus, pressured to enter into the agreement, since the plaintiff had brought the suit property to a condition wherein there was an eminent threat of the defendant no.1 losing the ownership and possession of the same.

16. He submits that after the Agreement to Sell was entered into, the property has been let out by the plaintiff since August, 2010 and she has earned approximately Rs.30 crores from the suit property on account of rent. He submits that the plaintiff was directed to file an affidavit stating the Annual Revenue earned from the suit property vide order dated 05.02.2024, however, the plaintiff has not complied with the directions.

17. He further submits that the relief sought to be added to the plaint by way of amendment, is grossly barred by limitation. He submits that even the captioned suit is barred by limitation, inasmuch as the Agreement to Sell was terminated by the defendant no.1 vide letter dated 29.04.2015 which has not been challenged by the plaintiff till date, not even in the amendment application. He submits that the amendment which introduces a time barred claim ought not be allowed under the provisions of Order VI Rule 17 of CPC.

18. He submits that the present suit seeking declaration and injunction was filed by the plaintiff during the pendency of the litigation (Civil Appeal No.1958/2011) before the Hon’ble Supreme Court, therefore, the plaintiff could have very well sought the relief of specific performance as well, at the first instance and the arguments advanced on behalf of the plaintiff that the relief of specific performance would have been barred by law in view of the status quo order dated 09.11.2010 passed by the Hon’ble Supreme Court, is misconceived. To buttress his contention, he places reliance of the Hon’ble Supreme Court in Van Vibhag Karamchari Griha Nirman Sahkari Sansatha Maryadit (Regd.) vs. Ramesh Chander, AIR 2011 SC 41.

19. In rejoinder, Mr. Sethi submits that the decision in Van Vibhag Karamchari (supra) is not applicable to the facts of the present case, inasmuch as in the present case there was a status quo order of the Hon’ble Supreme Court with regard to the suit property, hence, the suit for specific performance would have been barred by law, which was not the situation in Van Vibhag Karamchari (supra). In the said case, the plaintiff therein had not moved an application under Order II Rule 2 CPC at the time of filing of suit whereas in the present case the plaintiff has filed an application under the said provisions specifically reserving his right to seek specific performance after the decision of the Hon’ble Supreme Court in Civil Appeal 1958/2011.

20. I have heard the learned Senior Counsel for the parties and have gone through the material on record.

21. In the present application, the following questions arise for consideration of this Court – (i) whether the relief of specific performance sought to be included by way of amendment of plaint is barred by limitation and thus, cannot be allowed; and (ii) whether the amendment application should be rejected by applying the principles of Order II Rule 2 of the CPC.

22. Before proceeding to consider the rival contentions canvassed by the learned Senior Counsel for the respective parties, apt it would be to consider the position in law for allowing or rejecting a prayer for amendment of the plaint when the defendant alleges that the relief sought to be incorporated in the plaint is barred by time.

23. The law is well settled that the Court must be extremely liberal in granting the prayer for amendment if it is of the view that if such amendment is not allowed, a party who has prayed for such amendment, shall suffer irreparable loss and injury. It is also equally well settled that it is always open to the Court to allow an amendment if it is of the view that allowing of an amendment shall really sub-serve the ultimate cause of justice and avoid further litigation.[1] Life Insurance Corporation of India vs. Sanjeev Builders Private Limited & Anr., 2022 SCC OnLine SC

1128.

24. It has to be borne in mind that the Hon’ble Supreme Court has time and again held that power to allow an amendment is undoubtedly wide and may be appropriately exercised at any stage in the interest of justice, notwithstanding the law of limitation. Reference in this regard may be had to the decision in Ganga Bai (supra), wherein, it was held as under:

25. In A.K. Gupta & Sons (supra), it was observed that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation. Further, the limitation will not come in the way when what is sought to be brought in by the amendment can be said, in substance, to be already in the pleading sought to be amended. The relevant part of the decision read thus:

7. It is not in dispute that at the date of the application for amendment, a suit for a money claim under the contract was barred. The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new case or cause of action is barred: Weldon v. Neale. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: see Charan Das v. Amir Khan and L.J. Leach & Company Ltd. v. Jardine Skinner and Co.

8. The principal reasons that have led to the rule last mentioned are, first, that the object of courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes (Cropper v. Smith) and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended (Kisandas Rupchand v. Rachappa Vithoba approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil).

9. The expression “cause of action” in the present context does not mean “every fact which it is material to be proved to entitle the plaintiff to succeed” as was said in Cooke v. Gill in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corporation Ltd. and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words “new case” have been understood to mean “new set of ideas”: Dornan v. J.W. Ellis & Co. Ltd. This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time.

26. In Ragu Thilak (supra), the Hon’ble Supreme Court laid down that where the necessary factual basis has already been laid down in the plaint and the question as to whether the amendment was barred by time or not was disputed question of fact, the prayer for amendment ought not to be rejected and in such circumstances the issue of limitation can be made an issue in the suit itself. The relevant observations of the Hon’ble Supreme Court reads thus:

5. After referring to the judgments in Charan Das v. Amir Khan, L.J. Leach & Co. Ltd. v. Jardine Skinner & Co., Ganga Bai v. Vijay Kumar, Ganesh Trading Co. v. Moji and various other authorities, this Court in B.K. Narayana Pillai v. Parameswaran Pillai held: (SCC p. 715, para 3)

6. If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for.

27. Likewise, in Pankaja (supra), the Hon’ble Supreme Court held that it was in the discretion of the Court to allow an application under Order VI Rule 17 of the CPC seeking amendment of the plaint even where the relief sought to be added by amendment was allegedly barred by limitation. The Hon’ble Court noticed that there was no absolute rule that amendment in such a case should not be allowed. It was further observed that if granting of an amendment really sub-serves the ultimate cause of justice and avoids further litigation, the same should be allowed.

28. It will also be advantageous to bear in mind the factors to be taken into consideration while dealing with an application for amendment, as were culled out by the Hon’ble Supreme Court in Revajeetu Builders (supra) after examining various judicial pronouncements, which reads thus: “Factors to be taken into consideration while dealing with applications for amendments

63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.”

29. In Life Insurance (supra), the Hon’ble Supreme Court after examining various decisions on the question of allowing or rejecting the prayer for amendment of pleadings, more particularly when the plea of limitation was taken by one of the parties, observed that one of the cardinal principles of law in allowing or rejecting an application for amendment of pleadings is that the Courts, generally as a rule, decline to allow amendments if a fresh suit on the amended claim would be barred by limitation on the date of filing of the application. However, the aforesaid would be a factor to be taken into account by the Court in the exercise of its discretion while deciding whether the amendment should be ordered, and does not affect the power of the Court to order as such, if it is required in the interest of justice.

30. Now reverting to the facts of the case, it is to be noted that though the Agreement to Sell dated 01.05.2003 was terminated by the defendant no.1 by sending a letter dated 29.04.2015 but it is the pleaded case of the plaintiff in the suit that subsequently the defendant no.1 gave up the notice of termination and assured the plaintiff that he would not raise such frivolous issues in future and further, he assured the plaintiff that he would diligently pursue the matter pending before the Hon’ble Supreme Court and subject to the outcome of the same, he will be fulfilling his obligations under the Agreement to Sell. There are also pleadings which indicate that the plaintiff and the defendant no.1 were in communication with each other and were discussing the strategy to prosecute the pending appeal before the Hon’ble Supreme Court and that financial assistance was also being provided by the plaintiff to the defendant no.1 for the said purpose. In support of the pleadings in the plaint, the plaintiff has also placed on record certain messages exchanged on WhatsApp etc. post termination of agreement to sell and bank statements showing financial assistance for the litigation. At this juncture it would be apposite to refer the Relevant excerpts from paras 19, 20 and 22 of the plaint, which read as under:

respectively. Pertinently, after receiving the Plaintiff’s letter dated 04.11.2015, the Defendant No.1 gave up its letter and agreed to not to raise such frivolous issues and reassured the Plaintiff that he would diligently pursue the aforesaid matter before the Hon'ble Supreme Court of India and thereafter fulfil his obligations under the Agreement. Post this, the Defendant No.1 has been providing regular updates to the Plaintiff vis-a-vis proceedings which took place before the Hon'ble Supreme Court of India in respect of the aforesaid Civil Appeal and seeking necessary assistance/ advice till this very date through messages and personal meetings. Pursuant to the aforesaid understanding, the Defendant No. 1 pursued the early hearing application in Civil Appeal No. 1958 of 2011 pending adjudication before the Hon'ble Supreme Court of India and the same was allowed vide order dated 02.05.2018.”

31. Apt it would be to refer to para 28 of the plaint as well, where the plaintiff has clearly stated that the relief of specific performance is not being sought as the Hon’ble Supreme Court has passed an order of status quo besides making an averment as to the readiness and willingness of the plaintiff to perform his part under the Agreement to Sell. The relevant part from the plaint reads as under:

favour of the Plaintiff, which the Plaintiff has always been and continues to be ready and willing to perform. It is on account of the litigation pending adjudication before the Hon'ble Supreme Court of India, that the Plaintiff is refraining from seeking specific performance of the Agreement and as such is filing an accompanying application under Order II Rule 2 of the Code of Civil Procedure, 1908.”

32. Notably, the plaintiff had also moved an application along with the plaint under Order II Rule 2 CPC reserving her right to seek specific Appeal No.1958/2011. Para 26 of the said application which is relevant in the present context, reads as under:

33. The order of the Hon’ble Supreme Court dated 09.11.2010 passed in Civil Appeal No.1958/2011 also assumes relevance for deciding the above noted questions, therefore, apposite it would be to reproduce the same, which reads thus: “Delay condoned. Issue notice. ] Mr. R.P. Goyal, the learned counsel accepts notice. Reply be filed in the meantime. Status quo, as on today, shall be maintained till further orders.”

34. It has to be borne in mind that prior to entering into the Agreement to Sell dated 01.05.2003, the L&DO vide letter / order dated 28.02.2002 had determined the lease and re-entered the suit property. In terms of Clauses 6 to 8 of the Agreement to Sell dated 01.05.2003, it was the obligation of the defendant no.1 to first get the suit property converted to freehold and intimate the plaintiff by Registered Post and thereafter, the Sale Deed was to be executed.

35. However, the aforesaid order of the L&DO determining the lease of the suit property became subject matter of litigation. The said order was set aside by the learned Single Judge vide judgment dated 02.08.2005 in WP (C) 6837/2005, which was also affirmed by the Division Bench of this Court in LPA 2642/2005. However, in SLP (C) 31868/2010 filed by the Union of India, status quo order was passed by the Hon’ble Supreme Court qua the suit property which remained in operation from 09.11.2010 till the final disposal of the Civil Appeal No.1958/2011 on 16.08.2023. Although, the defendant no.1 vide legal notice dated 29.04.2015 terminated the Agreement to Sell, but nothing has been shown to the Court which would indicate that the said termination was acted upon. At no point of time, till 2019, the defendant no.1 claimed possession of the suit property, rather the exchange of messages between the defendant no.1 and plaintiff, through her son, as mentioned above, prima facie give an impression that the termination letter dated 29.04.2015 was given up by the defendant no.1 in view of the assistance sought and accepted by him from the plaintiff.

36. It is only vide letters dated 16.08.2019, 19.11.2019, 09.09.2020 and 05.11.2020 that the defendant no.1 again referred to the termination letter of 2015 claiming that the Agreement to Sell already stood terminated and no right over the suit property lie with the plaintiff. On the other hand, the plaintiff has taken a stand in the plaint that the said termination letter of 2015 was given up by the defendant no.1 and it has been averred that the parties had held several meetings and were in continuous conversation even after the termination letter of 2015, showing that the Agreement to Sell was subsisting and the termination was resiled from. In this factual backdrop, it cannot be stated with certainty the limitation period to file the suit for specific performance began to run from the date of termination letter dated 29.04.2015. It remains a disputed question of fact.

37. On the other hand, there also appears to be substance in the submission of Mr. Sethi that on account of operation of the status quo order from the year 2010 to 2023, neither the suit property could have been converted into freehold nor execution of Sale Deed as contemplated in the Agreement to Sell dated 01.05.2003 was possible. Further, Mr. Sethi’s contention that the cause of action to claim the relief of specific performance arose only on 16.08.2023, when the Hon’ble Supreme Court disposed of the Civil Appeal No.1958/2011, cannot be negated at this stage. Therefore, the plea that the relief of specific performance sought by way of amendment is barred by time is arguable in the circumstances of the present case. Resultantly, this Court is of the view that plea of limitation being disputed could be made a subject matter of the issue to be framed after allowing the amendment prayed for.

38. At the same time, it is not in dispute that a registered Agreement to Sell has been executed between the plaintiff and defendant no.1 wherein the plaintiff has already paid an amount of Rs.2.15 crores out of the agreed total sale consideration of Rs.3.05 crores. That apart the plaintiff has also placed on record Demand Draft of Rs.80 lacs along with the plaint showing her readiness and willingness to perform her part under the said agreement. A specific averment with regard to the readiness and willingness has also been made in the plaint as noted above. Clearly, the factual foundation for claiming the relief of specific performance in substance has already been laid down in the plaint.

39. Further, the reason for not claiming the relief of specific performance at the stage of filing the suit has also been articulated in the plaint and a separate application under Order II Rule 2 CPC reserving the right to seek specific performance after the decision of the Hon’ble Supreme Court in Civil Appeal No.1958/2011, has also been filed. This itself shows that the amendment sought is bona fide and the defendant no.1 was always aware that plaintiff will be seeking relief of specific performance after the decision in aforesaid Civil Appeal. Besides, the suit is at the preliminary stage of admission/denial of documents and the trial has not commenced yet, therefore, no prejudice will be caused to the defendants in case the present application is allowed. It is also not to be forgotten that the dominant purpose of allowing the amendment is to minimise litigation.

40. The second objection that the amendment application should be rejected by applying the principle of Order II Rule 2 of the CPC, was articulated by Mr. Ramesh Singh, the learned senior counsel for the defendant no.1, with reference to the decision of the Hon’ble Supreme Court in Van Vibhag Karamchari (supra). In the said decision the Hon’ble Supreme Court had taken a view that broad principles of Order II Rule 2, which are also based on public policy, are attracted to the application seeking amendment under Order VI Rule 17 as well.

41. The aforesaid decision is inapplicable to the facts of the present case for following two reasons. Firstly, in the present case, on the date of filing of the suit, there was a status quo order with regard to the suit property, on account of which the plaintiff did not seek the relief for specific performance and accordingly, reserved her right to seek such a relief at an appropriate time. Secondly, alongwith the plaint the plaintiff had filed an application under Order II Rule 2 CPC reserving her right to seek specific Appeal No.1958/2011, which aspect was missing in the Van Vibhag Karamchari (supra) case.

42. Incidentally, the Hon’ble Supreme Court in one of its recent decisions in Life Insurance (supra), relying upon the earlier decision of the Constitution Bench in Gurbux Singh vs. Bhooralal, AIR 1964 SC 1810, observed that the bar of Order II Rule 2 of CPC applies only to the subsequent suits.

43. In view of the above discussion and the legal position noted hereinabove, the present application is allowed.

44. The amended plaint filed with the application is taken on record.

45. The application stands disposed of.

46. Let written statements to the amended plaint be filed by the defendants within a period of 30 days.

47. List before the learned Joint Registrar for completion of pleadings, admission/denial of documents and marking of exhibits on 13.01.2025.

VIKAS MAHAJAN, J. NOVEMBER 05, 2024/MK/dss