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Judgment
P. Ramakrishnam Raju, J.—In this revision petition, the second defendant in O.S.No. 1094/85 on the file of the IV Assistant Judge, City Civil Court, Hyderabad is challenging an order made in I.A. 62/92 dated 28-2-1992, whereunder, the application filed by him under Order 8, Rule 9 C.P.C. seeking amendment of the written statement was dismissed by the learned IV Assistant Judge, City Civil Courts, Hyderabad.
The respondent-plaintiff filed O.S. 1094/85 seeking specific performance of the agreement of sale dated 6-4-1973 executed by one C.Ramaswamy, the father of the petitioner, agreeing to sell 250 Sq. yards of site together with super structures bearing Municipal No. 1-4-907/908 situated at Bakaram, Hyderabad. As the said Ramaswamy did not co-operate in executing the sale deed, the suit was filed and as he died, pending the suit, his sons, the petitioner and his brother were brought on record as defendant Nos. 2 & 3. The evidence on the side of the respondent-plaintiff was closed as long back as on 31-7-1991 and since then, the matter was being dragged on some pretext or the other. The petitioner instead of getting ready with the evidence, filed an application on 30-1-1992 to permit him to file additional written statement to enable him to take the plea that the suit agreement between the respondent and his father is void on account of incapacity of the respondent, being a .minor at the time of the agreement. It is also the contention of the petitioner that he could obtain a certificate of date of birth, as per his School Register, which shows that he was born on 2-4-1985 and as such, he was a minor at the time when the agreement was entered into and the agreement was void and unenforceable. The respondent denied the said allegation in his counter-affidavit and stated that the correct date of birth of the petitioner was shown in the plaint as 30 years when the suit was filed on 6-4-1985 and he has mentioned his age as 35 years in his deposition when he was examined on 20-7-1990 and in the suit agreement (Ex.A-l) his age was wrongly typed as 38 years instead of 18 years. It is also stated that the School Certificate does not reflect his correct age and apart from that the petitioner has filed this application to drag on the proceedings and there is no reason why he could not file this application for all these years, though the suit agreement was filed along with the plaint as early as on 6-4-1985.
The lower Court accepting the contention of the respondent that the suit was being adjourned from time to time for the evidence of the petitioner, instead of getting ready with the evidence, the petitioner obtained the School Certificate and came up with this petition and he did not explain in his affidavit as to why there was enormous delay in filing the present petition when the suit has been instituted on 6-04-1985, appending Ex.A-1, suit agreement and when the evidence of the respondent-plaintiff was recorded as early as on 20-07-1990 and consequently, he opined that the petition is devoid of merits and is intended to protract the proceedings. Aggrieved by the said order, the petitioner came up by way of this revision petition.
Sri M.V.R. Narasimhacharya, learned Counsel for the petitioner, submits that the petitioner should be permitted to file additional written statement in order to establish that the respondent was a minor on the date of the agreement and as such, the agreement is void and unenforceable. He further submits that the amendment of pleadings should be liberally considered. He placed reliance upon a decision reported in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri ILR 39 Cal.232. and submits that the minor cannot obtain specific performance of a contract on attaining majority inasmuch as he was a minor at the time when the contract was entered into and as such, the contract itself is void.
Considering a number of decisions, including the above decision, a Division Bench of the Madras High Court reported in Sri Kakulam Subrahmanyam and Another Vs. Kurra Subba Rao, minor by Manikyamma, ., held that the minor who was represented by his guardian does not answer the description of transferor occurring u/s 53-A of the Transfer of Property Act, nor does he claim under the transferor, as such, he is entitled to recover the possession of the property agreed to be conveyed by his guardian. On appeal, the Privy Council, as reported in Subrahmanyams case ., reversed the said finding, holding that the act of the mother and guardian in entering into the contract of sale was an act done on behalf of the minor and their Lordships expressed their full agreement with the passage found in Pollock and Mulla''s Indian Contract and Specific Relief Act, Edn. 7, page 70, which is extracted hereunder:
"It is, however, different with regard to contracts entered into on behalf of a minor by his guardian or by a manager of his estate. In such a case it has been held by the High Courts of India, in cases which arose subsequent to the governing decision of the Privy Council, that the contract can be specifically enforced by or against the minor, if the contract is one which It is within the competence of the guardian to enter into on his behalf so as to bind him by it, and, further, if it is for the benefit of the minor. But if either of these two conditions is wanting, the contract cannot be specifically enforced at all". After discussing the facts of the case, their Lordships finally held that the minor is the person who most aptly answers the description of the transferor in the sense in which these words are used in Section 53-A.
In view of this binding authority, I have no hesitation in holding mat the minor can seek specific performance of the contract in his favour. I am also fortified in this view of mine by a recent Bench decision of the Orissa High Court reported in Sri Durga Thakurani Bije Nijigarh and Others Vs. Chintamoni Swain and Others, . The following passage in the said judgment makes the view more clear.
"In our humble opinion, the decision in Sarwarjan''s case and in Subrntnanyam''s case cannot stand together and the former decision must be held to be no longer good law and deemed to be overruled by the latter decision. The principles laid down in both the cases are irreconcilable and in our opinion Subrahmanyam''s case lays down clearly and unequivocally the rule."
In this case even assuming that the resondent was a minor at time of execution of the agreement of sale, he has ratified the sale by his conduct after attaining majority and he is seeking specific performance of the agreement of sale through Court.
The word ''void'' when used in relation to a minor''s contract is misleading. It should be understood in the sense of "void as against the minor" and not vice versa. A minor''s contract is voidable in the sense of the minor having an option to affirm or repudiate the contract on attaining majority. The rule is meant as a check or safeguard to protect the interest of the minor as very often such contracts are one sided and uneven and detrimental to the interests of the minor. The opposite party who entered into a contract with a minor with wide open eyes cannot subsequently turn round and say that the contract is void or unenforceable merely because he contracted with a minor. If this situation is permitted the other party will avoid a contract concluded with the minor, on this ground whenever it is inconvenient for him at a later point of time and insist on performance if it is advantageous. So, the option is in his hands, which can never be the intendment of the rule as this would frustrate the benefit conferred by law on the minor.
The learned Counsel for the petitioner contends that the application for amendment of pleadings should be liberally allowed. He relied upon a passage occurring in Haridas Aildas Thadani and Others Vs. Godrej Rustom Kermani, ., which is as follows:-
"It is well settled that the Court should be extremely liberal in granting prayer of amendment of pleading unless serious injustice or irreparable loss is caused to the other side. It is also clear that a revisional Court ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstances".
The learned Counsel also relied upon a decision reported in Harcharan Vs. State of Haryana, ., and contends that rejection of application for amendment on the sole ground of delay is not tenable.
As already stated, the lower Court has categorically observed that there is absolutely no explanation in his affidavit as to why there was inordinate delay in filing the present application when the suit was instituted on 6-4-1985 and when the suit agreement (Ex. A-l) was filed along with the suit and the plaintiff was also examined as early as on 20-07-1990. I entirely agree with the observation of the lower Court. There is no whisper in the affidavit filed by the petitioner as to why this application could not be filed earlier. In the absence of any explanation whatsoever, the Courts cannot allow application for amendment of pleadings as a matter of right for the par ties or as a matter of duty of the Court. That apart, in the view I have taken that even assuming that the respondent was a minor at the time of entering into the suit contract, it is no bar for him to seek for specific performance of the contract and no useful purpose would be served by permitting the amendment sought for. This application is clearly engineered only to protract the litigation as is evident from the conduct of the petitioner, as observed by the lower Court and the discretion exercised by the lower Court cannot be lightly interfered with. In the circumstances of the case, I find that the revision petition is devoid of merits.
In the result, the revision petition is dismissed. No costs.