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Judgment
S.C. Gupte, J.—This Chamber Summons is taken out by the Plaintiff for impleading Respondent Nos. 1 to 8, as party Defendant Nos. 11 to 18, and amending the plaint by incorporating averments concerning the newly added Defendants and seeking reliefs against them. The application is made in the following circumstances.
By Consent Decrees dated 28 October 1986 and 14 November 1986, the predecessor in title of Defendant Nos. 3 to 9 herein conveyed the suit properties, which consist of 2 agricultural lands admeasuring respectively 20 and 7 acres, to Defendant No. 1. By an agreement for sale dated 18 December 2007, Defendant No. 1 agreed to sell the suit properties to the Plaintiff for a total consideration of Rs. 5 crores. The present suit is filed by the Plaintiff for specific performance of that agreement for sale. In the course of hearing of a Notice of Notion taken out by the Plaintiff for interim reliefs in respect of the suit properties, Defendant No. 1 filed an affidavit disclosing that during the pendency of the suit, i.e. on 7 May 2013, Defendant No. 1 had gifted the suit property by a Deed of Gift to Respondent Nos. 1 and 2, who are his daughters. The affidavit further disclosed that thereafter, Respondent Nos. 1 and 2 by a conveyance deed dated 29 May 2013 conveyed the suit property to Respondent No. 3. Respondent No. 3 is a partnership firm in which Respondent Nos. 1 and 2 as well as Respondent Nos. 4 to 8 are partners. After learning about these transfers, the Plaintiff took out the present Chamber Summons for bringing these subsequent events on record and for joining Respondent Nos. 1 to 8, as Defendant Nos. 11 to 18 to the present suit. Apart from the averments concerning these subsequent events and in support of the reliefs claimed against proposed Defendant Nos. 11 to 18, the Plaintiff seeks to add averments concerning its readiness and willingness to perform the suit agreement for sale, which, according to the Plaintiff, was left out in the original plaint due to oversight and bonafide mistake.
The Chamber Summons is opposed by Respondent Nos. 3 to 8 as well as original Defendant No. 1 and Respondent Nos. 1 and 2 on various grounds.
Mr. Rajiv Kumar, learned Senior Counsel appearing for Respondent Nos. 3 to 8, formulated the following grounds opposing the Chamber Summons :
(i) There is a preliminary issue framed in the suit at the hearing of the Notice of Motion taken out by the Plaintiff regarding bar of limitation. Having regard to the provisions of Section 9A of the CPC, as applicable in Maharashtra, the only relief that could be considered is interim relief pending determination of the preliminary issue as to jurisdiction and that no other application in the course of the trial of the suit can be entertained by the court without hearing and disposing of the preliminary issue so framed;
(ii) Having regard to the fact that the trial of the suit has commenced by reason of framing of the preliminary issue, the amendment of the plaint cannot be permitted having regard to the proviso to Rule 17 of Order 6 of the CPC;
(iii) The Respondents, who are subsequent purchasers of the suit property, cannot be joined as party Defendants to the present suit. In any event, having regard to the orders passed by this Court, the matter concerning joinder of a subsequent purchaser should be referred to a larger Bench of this Court;
(iv) The averments of readiness and willingness cannot be introduced by way of the present amendment application, particularly having regard to the fact that as on the date of the application for amendment, the suit would be barred by the law of limitation on the original cause of action;
(v) Lastly, having regard to the fact that the Plaintiff does not have even a semblance of right, the present amendment ought not to be allowed.
Mr. Madon, learned Senior Counsel appearing for Defendant No. 1 and Mr. Munshi, learned Counsel appearing for Respondent Nos. 1 and 2, support the submissions of Mr. Rajiv Kumar and particularly, lay emphasis on the impermissibility of incorporating averments concerning the Plaintiff''s readiness and willingness to perform its part of the contract by way of the present amendment in the facts of the present case.
No doubt it is true that once an objection to the jurisdiction of the court is raised at the hearing of an application for granting or setting aside an order granting any interim relief, that objection has to be heard and disposed of by the Court as expeditiously as possible and shall not, in any case, be adjourned to the hearing of the suit. The question of jurisdiction has to be answered, as expeditiously as possible, before other issues, which arise in the suit, are dealt with or before the entitlement of the Plaintiff to reliefs claimed in the suit on merits, is considered. This does not, however, mean that the court is divested of its jurisdiction to consider all interlocutory or incidental proceedings arising in the course of a trial including an application for amendment of the plaint. I am fortified in this view by a judgment of our Court in the case of The Immigrants Ideal Producers Co-operative Society Ltd. and Another Vs. Mrs. Jahanara Moiz Dalal, Our Court in that case considered the various decisions of learned Single Judges of our Court including a decision of Khanwilkar, J. in the case of Shri Arjun Dada Gadage Vs. Mallappa Gurappa Chougule and Subhashchandra Bhau Shahpure, Secretary, Shedshal Shikshan Prasarak Mandal, In the case of Arjun Dada Gadage, Khanwilkar, J. held that the Court is obliged to decide the issue of jurisdiction not only while considering the prayer for interim relief but also while considering any other incidental prayers made during the pendency of the suit. The observations of the Court in Arjun Dada Gadage were explained in Immigrants Ideal Producers Co-operative Society''s case. This is what our Court in Immigrants Ideal Producers Co-operative Society''s case held :
The principles which have been laid down by the learned Single Judges in the aforesaid decisions are, with respect, correct. There can be no doubt about the question that once an issue of jurisdiction is raised, it has to be decided expeditiously, as a preliminary issue. The decision of that issue cannot be adjourned to the hearing of the motion for interim relief and in any event not to the trial of the suit. The question of jurisdiction has to be answered as expeditiously as possible, before other issues which arise in the suit are dealt with and before the entitlement of the plaintiff to relief on merits is considered. The question, however, in the present case is a more limited issue and that is as to whether the learned trial Judge was ousted from his jurisdiction to allow the amendment of the plaint altogether. The answer must be in the negative. It must be emphasised that in the present case, there is a finding recorded by the learned trial Judge that the bona fides of the plaintiffs could not be questioned. The application for amendment was not mala fide nor was it an effort to delay the disposal of the application questioning the jurisdiction of the Court.
As held by the Supreme Court in the case of Vidyabai and Others Vs. Padmalatha and Another, the date of first hearing is the date on which issues are framed and filing of an affidavit in lieu of examination-in-chief of the witness amounts to ''commencement of proceeding''. It is submitted by learned Counsel for Respondent Nos. 3 to 8, that in the present case the trial has commenced with the framing of the preliminary issue. Rule 1 of Order 14 of the CPC provides that at the first hearing of the suit, after reading the plaint and written statements and after examination under Rule 2 of Order 10 and after hearing the parties and their pleaders, the court shall ascertain the material propositions of fact or law on which parties are at variance, and thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. Once the issues are thus framed and recorded, the suit is ready for trial by recording of evidence. The trial commences when an affidavit in lieu of examination-in-chief of the witness is filed. After such commencement, the proviso to Rule 17 of Order 6 comes into play and no application for amendment is allowed by the Court unless a case is made out that the party applying for amendment could not have raised the matter before such commencement in spite of due diligence. Clearly, what is meant by commencement of trial here is the final hearing of the suit. In fact, elaborating on this point, the Supreme Court in Baldev Singh and Others Etc. Vs. Manohar Singh and Another Etc., observed as follows :
Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the CPC must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the court to allow an amendment of the written statement at any stage of the proceedings.
The trial of the suit in this sense, i.e. by way its final hearing, cannot be said to commence when a preliminary issue is framed u/s 9A of the CPC. In the case of Section 9A, as amended, and applicable in the State of Maharashtra, if at the hearing of any application for granting or setting aside any order granting interim relief, an objection to the jurisdiction of the court to entertain such a suit is taken by any of the parties to the suit, the court shall proceed to determine at the hearing of such application the issue as to jurisdiction as a preliminary issue before granting or setting aside the order granting interim relief. It cannot possibly be suggested that when such a objection to the jurisdiction of the court is taken at the hearing of the interlocutory application and the court proceeds to hear preliminary issue on jurisdiction before granting or setting aside an order granting interim relief, the trial of the suit has commenced in the sense of the expression used in Rule 17 of Order 6 of the Code of Civil Procedure. There is no merit, thus, in the contention of the learned Counsel for the Defendants /Respondents that the present application is covered by the proviso to Rule 17 of Order 6. In any event, having regard to the fact that the Plaintiff learnt about the subsequent transfers of the suit property only during the pendency of the suit and seeks to add averments as also reliefs in connection therewith, a case for accepting the application on the ground of inability of the party to raise the matter before commencement of the trial in spite of due diligence, is clearly made out.
Clause (b) of Section 19 of the Specific Relief Act specifically states that specific performance of a contract may be enforced against any person claiming under a party to the contract by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. Subsequent transferees, who claim title through a party against whom specific performance is sought, may always be allowed to be impleaded so that a good title is conveyed to the plaintiff in pursuance of the agreement for sale of which specific performance is sought. In Lala Durga Prasad and Another Vs. Lala Deep Chand and Others, the Supreme Court dealt with the case of a plaintiff purchaser who sought to add second and third defendants who were subsequent purchasers claiming from original defendant (defendant No. 1) who was the plaintiff''s vendor. The Supreme Court observed that though the practice of the courts in India had not been uniform, there were three distinct lines of thought. According to one point of view, a proper form of decree would be to declare the subsequent purchase void as against the plaintiff and direct conveyance by the vendor alone, whereas the second was to the effect that both vendor and vendee should join in the conveyance in pursuance of a decree that may be passed in the specific performance suit. The third point of view was to limit the execution of the conveyance to the subsequent purchaser alone, since the original vendor had already divested his title in the suit property in favour of the subsequent purchaser. The Supreme Court, after evaluating the three alternatives, held as follows :
In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in- Kafiladdin and Others Vs. Samiraddin and Others, and appears to be the English practice. See Fry on specific Performance, 6th Edn. Page 90, paragraph 207; also-''Poter v. Sanders'', (1846) 67 ER 1057 (D). We direct accordingly.
The law laid down by the Supreme Court in Durga Prasad''s case and since then followed by number of judgments of the Supreme Court as well as High Courts was considered by a Division Bench of our Court in the case of M/s. Shree Kamal Constructions and Others Vs. Shri Kamlakar Jiwan Patil and Others, 2013-4-52. Based on the analysis of the judgments, our Court held that the ratio of Durga Prasad''s case was clearly applicable to a case where an impleadment was sought for the purpose of joining the third party purchaser so as to make him a party to the conveyance if the suit of the purchaser plaintiff was to ultimately succeed. Having regard to the law laid down as above, there is no doubt whatsoever that in a case like this, where a subsequent purchaser is sought to be added so as to join him in a conveyance sought in the specific performance suit, the application for amendment ought to be allowed.
As for the averments of readiness and willingness on the part of the Plaintiff sought to be added by way of the present amendment application, it is submitted by the learned Counsel that in the facts of the present case, it is impermissible to allow this amendment. Mr. Madon, learned Senior Counsel appearing for Defendant No. 1, relied on the case of Prithi Pal Singh and Another Vs. Amrik Singh and Others, and submitted that the amendment once allowed, relates back to the date of initial institution of the suit, but that in an appropriate case, the court may restrict the doctrine of relation back and permit the application of amendment from the date the amendment is allowed. Learned Counsel submitted that particularly, in a case like this, where granting of the amendment would take away an accrued right in favour of the other parties to the suit by reason of the requisite averment being absent in the original pleading, such amendment ought not to be allowed. Mr. Munshi, learned Counsel for Respondent Nos. 1 and 2 relied upon a decision of our Court in the case of Parshram Tanaji Aher and Others Vs. Dattu Kadu Aher and Pundalik Amruta Jadhav, and supported the contentions of Mr. Madon.
The Plaintiff has filed an additional affidavit in support of the Chamber Summons submitting inter alia that it was through oversight or by bonafide mistake that the necessary legal pleas /averments regarding the Plaintiff''s readiness and willingness to perform its part of the contract, remained to be incorporated in the body of the plaint. It is submitted that the Plaintiff was always ready and willing and even now is ready and willing to perform its obligations recorded under the suit agreement for sale and that this readiness and willingness has been communicated by the Plaintiff to the Defendants through its letter which is already part of the plaint.
In the case of Gajanan Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar, the Supreme Court had occasion to consider the case of an application for amendment by incorporating averments concerning the plaintiff''s readiness and willingness to perform his part of the contract in compliance with the provisions of Section 16(c) of the Specific Relief Act, 1963. In that case, the learned Additional Civil Judge had rejected the plaintiff''s application for incorporating the averments. Subsequent to the filing of the suit, a revision petition from the order of the Additional Civil Judge was rejected by the High Court of Karnataka, the learned Judge of the High Court taking a view that the application for amendment was filed beyond the period of limitation and could not have been granted since a vested right of the respondents would be disturbed if the amendment was allowed. The correctness of that decision was questioned before the Supreme Court. The Supreme Court after considering the leading cases of Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, and L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., held as follows :
If these principles are to be followed, there is little doubt that the learned judge was in error in rejecting the application for amendment made by the appellant. In the present case no fresh cause of action was sought to be introduced by the amendment applied for. All that the appellant sought to do was to complete the cause of action for specific performance for which relief he had already prayed. It was only that one averment required in law to be made in a plaint in a suit for specific performance in view of the provisions of sub-section (c) of section 16 of the Specific Relief Act was not made, probably on account of some oversight or mistake of the lawyer who drafted the plaint and that error was sought to be rectified by the amendment applied for. There was no fresh cause of action sought to be introduced by the amendment and hence, no question of causing any injustice to the respondent on that account arose.
Even in the present case, by incorporating the averments concerning the Plaintiff''s readiness and willingness, the Plaintiff is not seeking to introduce any fresh cause of action. All that the Plaintiff seeks to do is to complete the cause of action, as averred in the plaint, by incorporating a particular averment which is a requirement of law, so that the suit could be brought within the parameters of sub-section (c) of Section 16 Specific Relief Act. It is clearly a case where the Plaintiff has omitted to incorporate the requisite averments in the plaint through oversight or bona fide mistake and there is no question of causing any injustice to the Defendants, if the averments are allowed to be incorporated by an amendment.
The Supreme Court in the case of Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, has held that the rules of procedure are intended to be a handmaid to the administration of justice and a party cannot be refused relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleadings of a party, unless it is satisfied that that the party applying was acting malafide, or that by his blunder he had caused injuries to the opponent which may not be compensated for by an order of costs. In the present case, the averments, as observed above, were not incorporated originally in the plaint through mistake or inadvertence. It cannot possibly be suggested that the Plaintiff was acting malafide or that any irreparably injury would be caused to the Defendants as a result of the course of conduct adopted by the Plaintiff.
When an amendment to a pleading is allowed, it ordinarily relates back to the date of the original pleading unless the court in an appropriate case directs the amendment to be applied from the date of the amendment. Having regard to the fact that absence of the particular averments in the original pleading was through oversight and bona fide error and no right has accrued as a result in favour of the Defendants /Respondents, there is no reason why the court should make any exception to the ordinary rule and restrict the application of the doctrine of relation back in the present case.
Mr. Rajiv Kumar, learned Senior Counsel appearing for Respondent Nos. 3 to 8, submitted that the suit agreement, of which specific performance is sought by the Plaintiff, is not a genuine contract and even a partner of the Plaintiff firm has disputed /denied its genuineness and correctness. He submitted that the Plaintiff does not have right, title or interest of any nature whatsoever and that in the circumstances, the Respondents should not be put to the inconvenience of facing a trial in the facts of the present case. The genuineness or otherwise of the suit agreement for sale is clearly a matter arising in the course of a trial and can only be ascertained after the evidence is led and the matter is heard on merits. Presently, the considerations of merit ought not to weigh against the relief of amendment being granted to the Plaintiff.
For the reasons set out above, there is a clear case for allowing the amendment. There is no case for making the amendment prospective and not relating it back to the presentation of the plaint.
Accordingly, the Chamber Summons is made absolute in terms of prayer clause (a). The amendment to be carried out within a period of two weeks. Amended copy of the plaint to be served on all parties.
On the application of the learned Counsel for the Defendants and Respondents, the order is stayed for a period of four weeks from today.