w w w . L a w y e r S e r v i c e s . i n


Twilight Properties Pvt. Ltd. & Another v/s Supratik Bhattacharjee & Others

    C.O. Nos. 3257 & 4118 of 2018
    Decided On, 13 November 2019
    At, High Court of Judicature at Calcutta
    By, THE HONOURABLE MR. JUSTICE SABYASACHI BHATTACHARYYA
    For the Petitioners: Arindam Banerjee, Satadeep Bhattacharyya, Surajit Biswas, Awani Kumar Roy, Advocates. For the Opposite Parties: Utpal Bose, Sakya Sen, Probal Kumar Mukherjee, Urmila Chakraborty, Paromita Banerjee, Subika Paul, Sayani Chatterjee, Advocates.


Judgment Text
1. The present challenge under Article 227 of the Constitution of India has been preferred against an order whereby the application filed by the plaintiffs/petitioners for amendment of their plaint was rejected. It is contended on behalf of the petitioners that the suit was initially filed inter alia on the ground that a purported deed of conveyance dated May 27, 2011 be adjudged null and void and be delivered up and cancelled, for a declaration that the plaintiffs have the sole, exclusive and absolute right to cause construction and carry on the project by constructing a multistoried building at the suit premises as per the agreements dated August 2, 1989 and/or October 19, 1994, along with consequential reliefs of injunction etc.

2. The trial court, while rejecting the amendment application, primarily proceeded on the premise that the petitioners had filed another suit subsequent to the fling of the suit ( the present revision arises from the first suit ), whereby they had sought the relief for a declaration that a valid, binding and subsisting development agreement dated August 2, 1989 was in existence between the plaintiff no. 2 and defendant no. 1, for specific performance of the development agreement/contract between the plaintiffs and the defendant no. 1 relating to the property-in-question, for alternative relief of damages and other reliefs. As such, it was reasoned by the trial court, that the prayers sought to be incorporated by way of amendment in the current suit were already sub judice in another suit and the plaintiffs could have prayed for analogous trial of all the suits instead of misusing the time and process of court by filing the amendment application. Thus, the trial court thought the amendment application to be frivolous and rejected the same.

3. Learned counsel for the petitioners argues that the pendency of the second suit was irrelevant for refusing amendment in the first suit. The amendment, it is argued, was necessary to avoid multiplicity of proceedings, since specific performance and the alternative prayer of damages were necessary for a complete adjudication of the real controversy to be determined in the suit.

4. Moreover, it is argued that the original suit was for declaration of a negative covenant in the development agreement-in-question, by restraining the men and agents of the defendants from taking any steps as per the purported deed of conveyance dated May 27, 2011 and asserting the petitioners' exclusive and absolute right to cause construction and carry on the project by constructing a multistoried building as per the agreements dated August 2, 1989 and/or October 19, 1994.

5. It is argued that the real controversy test would be satisfied by introduction of such amendments, thus necessitating such amendments. In support of the aforesaid contentions, learned counsel for the petitioners relies on judgments reported respectively at ILR 1937 (2) Cal 367 [Parma Singh vs. Tulshi Charan Goswami] and (2006) 4 SCC 385 [Rajesh Kumar Aggarwal and others vs. K.K. Modi and others].

6. It is further argued that the merits of the amendment applications were not relevant at the juncture of deciding the amendment applications, and the trial court acted without jurisdiction into going into the merits while rejecting the amendment. In support of this proposition, learned counsel for the petitioners cites two judgments, the first being that of Usha Devi vs. Rijwan Ahamd and others reported at (2008) 3 SCC 717 and secondly, Abdul Rehman and another vs. Mohd. Ruldu and others reported at (2012) 11 SCC 341.

7. As to the arguments advanced by the opposite parties regarding the amendment changing the nature and character of the suit property, both in this court and in the court below, learned counsel for the petitioners denies the same and argues that the petitioners all along claimed declaration regarding the subsistence of a valid development agreement and also sought for cancellation of the conveyance in favour of the defendant nos. 3 to 8. The other reliefs claimed in the original suit were ancillary to such reliefs and still remain, even after the amendment.

8. The original suit, in fact, it is contended, sought for specific performance of a negative covenant in the development agreement by asserting the petitioners' right to construct upon the suit property and to restrain the opposite parties from doing so. By virtue of the amendment, only the prayer for specific performance of the development agreement as a whole (and not restricted to the negative covenant) was sought to be introduced, along with the necessary alternative prayer for damages and facts associated therewith. Thus, it is argued, the cause of action of the suit did not change and there would be no change in the nature and character of the suit by such amendment.

9. Learned counsel for the petitioners next refutes the contention of the opposite parties that the proposed amendments are barred by limitation. It is argued that the conveyance to the purchasers-defendants dated May 27, 2011, which was challenged even in the original suit, was a breach of the negative covenant of the development agreement, of which specific performance has now been sought. As such, the execution and registration of the said agreement dated May 27, 2011 furnished the cause of action of the first suit, when it came to the knowledge of the plaintiffs/petitioners on May 29, 2011.

10. Since the amendment application as well as the suit were both filed within three years from the date of such deed and date of knowledge, the suit was within time, as envisaged in Article 54 of the Limitation Act.

11. Moreover, it is contended that if the amendment was allowed, the same would relate back to the date of filing of the suit and no time-bar would apply.

12. That apart, the question of limitation was at least arguable, making it fit to be decided at trial. The plaintiffs will have to establish that the agreements-in-question remained valid, binding and subsisting till 2011 and were being acted upon by the plaintiffs to maintain the relief of specific performance of contract.

13. Readiness and willingness, as far as the plaintiffs are concerned, was never questioned by the original defendant no. 1 and as such cannot be a factor to be considered at the juncture of deciding on the amendment.

14. Learned counsel for the petitioners cites a judgment reported at 2012(4) CHN (Cal) 199 [Anindya Dasgupta vs. Debasish Baisya], to advance the proposition that even time-barred reliefs could be brought in by way of amendment to avoid multiplicity and for proper adjudication of the dispute between the parties.

15. It is also argued that the question of introducing the relief of specific performance at the relevant juncture of filing the suit did not arise at all in view of such a relief being barred then by a judgment reported at AIR 2006 Cal 209 [Vipin Bhimani & Anr. vs. Smt. Sunanda Das & Anr.], wherein it was held by this court that a claim for specific performance was not maintainable at the instance of the developers under Section 14(3)(c)(iii) of the Specific Relief Act, 1963. It is argued that the bar was lifted only by a judgment rendered by a three-Judge bench of this court in Ashok Kumar Jaiswal vs. Ashim Kumar Kar, reported at AIR 2014 Cal 92, which overruled the principle laid down in Vipin Bhimani (supra).

16. Although the defendants/opposite parties have claimed that, at the juncture when Vipin Bhimani (supra) was holding the field, there was a co-ordinate bench decision of this court reported at (2003) 2 CHN 95 [Bhaskar Aditya vs. Minati Majumdar], which laid down a contrary proposition, thereby creating no bar to the maintainability of a suit for specific performance at the instance of the developer and such judgment was not noticed in Vipin Bhimani (supra), thereby giving a handle to the opposite parties to argue that Vipin Bhimani (supra) was per incuriam, the said proposition is disputed by learned counsel for the petitioners. Learned counsel submits that Bhaskar Aditya (supra) did not decide the right of a developer to file a suit for specific performance. It was held in the said judgment that there was no scope for specific performance and damages in the particular facts and circumstances of the case and that the right of a developer to seek the appointment of receiver cannot be disputed. As such, it is argued, Vipin Bhimani (supra) held the field at the relevant juncture, preventing the relief of specific performance from being sought. As soon as such bar was lifted by the three-Judge bench referred to above, the amendment application was filed. As such, the question of applicability of Order II Rule 2 of the Code of Civil Procedure does not apply in any event, let alone the bar of limitation.

17. While dealing with the objection that the suit was barred under Order II Rule 2 of the Code of Civil Procedure, learned counsel for the petitioners cites a judgment of the Supreme Court, being that of Gurbux Singh vs. Bhooralal reported at AIR 1964 SC 1810, wherein it was held, according to the petitioners, Order II Rule 2 of the Code only applies to a subsequent suit.

18. Learned counsel for the petitioners also cites a division bench judgment of the Delhi High Court which followed Gurbux Singh, being that of Vaish Cooperative Adarsh Bank Limited vs. Geetanjali Despande & Others reported at 102 (2003) DLT

570. It was held in such judgment that Order II Rule 2 lies in a subsequent suit and does not apply to amendments in the same suit.

19. While distinguishing, in reply, a judgment reported at (2010) 14 SCC 596 [Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Registered) vs. Ramesh Chander and others], wherein apparently it was held that even an amendment in the same suit was hit by Order II Rule 2, learned counsel for the petitioners argues that it was never held in the said judgment that an amendment in the first suit would be barred by Order II Rule 2. The ratio laid down Van Vibhag (supra) was that time-barred amendments would not be allowed. In the said case, the amendment was barred by eleven years and the same was a consideration for refusing such amendment, inter alia touching Order II Rule 2 but laying down nothing in the said judgment on the proposition as sought to be expounded by the petitioners. Limitation was the main consideration in the said judgment, as would be evident from the judgments relied on in the judgment of Van Vibhag (supra) itself, being (2001) 6 SCC 163 [Vishwambhar and others vs. Laxminarayan (Dead) through LRS and another] and 1995 Supp (3) SCC 17 [K. Raheja Constructions Ltd. and another vs. Alliance Ministries and others].

20. However, as distinguished from Van Vibhag (supra), in the present case, the amendment was filed within three years of the cause of action, being the execution of the purported deed in 2011, in terms of Article 54 of the Limitation Act.

21. Learned counsel for the petitioners further argues that certain stray observations made in paragraph nos. 30 and 31 of Van Vibhag (supra), as relied on by the opposite parties, was not the ratio laid down therein. Even if those paragraphs contained the ratio, those would be per incuriam, in view of not having noticed Gurbux Singh (supra).

22. As regards the judgment of Rajesh alias Raj Chaudhary and Ors. vs. Asha Chaudhary and ors. reported at 2015 SCC OnLine Del 13936, rendered by a Single Judge of the Delhi High Court, learned counsel for the petitioners argues that the same did not lay down the correct proposition of law upon placing reliance on (2010) 14 SCC 596 [Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Registered) vs. Ramesh Chander and others], since the latter judgment did not lay down the proposition that Order II Rule 2 of the Code would apply even if no latter suit was filed but an amendment was sought in the only existing suit.

23. Learned counsel for the petitioners further submits that the reasoning of the trial court, being virtually the only reason for refusal of the amendment as reflected from the impugned order, that the same relief as sought by the amendment had been sought in another suit, was absolutely irrelevant. The only test, it is argued, in allowing the amendment was whether it was necessary for determining the real question in controversy in the suit. The subsistence or filing of subsequent suits could not be factored in while deciding whether to allow an amendment in a previous suit.

24. Learned counsel for the petitioners next contends that Order II Rule 2 of the Code of Civil Procedure applies only when there is a relinquishment or intentional omission to sue. In the present case, the original plaint shows the intention of the plaintiffs to obtain specific performance of the development agreement and to enforce a negative covenant implied by such agreement. The explanation for the delay in filing the amendment was sufficiently explained in so far as the legal advice of bar of such relief of specific performance, and the consequential alternative bar of damages, being prevalent at the juncture when the suit was filed. Whether such advice was right or wrong was not relevant, since the plaintiffs never relinquished or intentionally omitted to sue for specific performance or damages at any point of time. As such, the bar of Order II Rule 2 does not apply in any event.

25. It is further contended that in Gurbux Singh (supra), it was held that the bar of Order II Rule 2(3) of the Code was technical and the ingredients therein must be strictly deemed and there could be no inference of such bar. As such, paragraph no. 31 of (2010) 14 SCC 596 [Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Registered) vs. Ramesh Chander and others] was patently contrary to such ratio, laid down in the previous judgment of Gurbux Singh (supra).

26. Learned counsel for the opposite party nos. 1 to 3 begins his argument by refuting the contention, which was the basis of the amendment application, that the relief of specific performance was not available in the suit was filed, due to the apparent bar laid down in Vipin Bhimani (supra) and that the subsequent judgment in AIR 2014 Cal 92 [Ashok Kumar Jaiswal vs. Ashim Kumar Kar], of a full-bench of this court, reversed the proposition of Vipin Bhimani (supra), thereby allowing specific performance to be asked at the instance of a developer, entitling the plaintiffs to introduce such relief now. It is argued by learned counsel for the opposite parties that the plaintiffs also apparently took the plea that the amendment would not change the nature and character of the suit and were not barred by limitation, since the cause of action of the suit was May 29, 2011, when the plaintiffs allegedly learnt of the conveyance deed, as reflected in paragraph no. 33 of the original plaint.

27. In answering such arguments of the petitioners, learned counsel submits that the amendment patently changes the nature and character of the suit. Learned counsel, in this regard, places the original reliefs claimed in the suit, as set out in pages 75 to 78 of the present revisional application. Those are as follows: "a) Leave under Order 2 Rule 2 of the Code of Civil Procedure;

b) The purported deed of conveyance dated 27th May, 2011 be adjudged null and void and be delivered up and cancelled;

c) A declaration that the plaintiffs has the sole, exclusive and absolute right to cause construction and carry on the project by constructing a multistoried building at the suit premises as per the agreements dated 2nd August 1989 and/or 19th October, 1994;

d) A decree of perpetual injunction restraining the defendants and/or their men, servants, agents and/or assigns from taking any step and/or any further step in terms of the purported deed of conveyance dated 27th May, 2011;

e) A decree of perpetual injunction restraining the defendants and/or their men, servants, agents and/or assigns from interfering in any way with the plaintiffs' right to develop the property situate at 3/1, Sunny Park, Kolkata and from allowing the said property at 3/1, Sunny Park to be developed by any other person;

f) A decree of perpetual injunction restraining the defendants and/or their men, servants, agents and/or assigns from taking any step or any further step towards dealing with or disposing of or encumbering the said premises in terms of the purported deed of conveyance dated 27th May, 2011 or at all;

g) A decree of perpetual mandatory injunction commanding the defendants to hand-over possession of the suit property to the plaintiffs for the purpose of its development in terms of agreements dated 2nd August 1989 and/or 19th October 1994 and permit the plaintiffs to develop the property without any interference or obstruction;

h) A decree for mandatory injunction commanding the defendants and/or their men, servants, agents and/or assigns to allow the plaintiffs to develop the property as per the agreement;

i) Receiver;

j) Temporary Injunction;

k) Cost of the suit;

l) Such other relief or reliefs as the plaintiffs are entitled both in law and in equity."

28. Learned counsel argues that if the said original reliefs are compared to the amended reliefs, as set out at page - 97 of the instant revisional application, it would be clear that there would be a complete change in the nature and character of the suit by introduction of such new reliefs. Such amended reliefs are as follows:

"(a1) a declaration that a valid, binding and subsisting development agreement dated 19 October 1994 is in existence between Plaintiff no. 1 and Defendant no. 1; (a2) in the alternative to prayer clause (a1), for a declaration that a valid, binding and subsisting development agreement dated 2 August 1989 is in existence between Plaintiff no. 2 and Defendant no. 1;

(a3) that specific performance be decreed in favor of the Plaintiffs on the development agreement/contract between the Plaintiffs and Defendant no. 1 relating to the suit property situated at 3/1 Sunny Park, Kolkata - 700 019;

(a4) for a decree of perpetual injunction restraining Defendant nos. 3 to 8 from dealing with, transferring, alienating, encumbering and/or creating third party rights whatsoever for development or otherwise, in relation to the suit property situated at 3/1 Sunny Park, Kolkata - 700 019, in favor of any party other than the Plaintiffs; (a5) in the alternative to prayer clauses (a1) to (a4), for an enquiry into damages, and a decree for damages as may be found due, upon enquiry, be passed in favor of the Plaintiffs and against Defendant 1, in the sum of the market value of the suit property as at the date of the suit and/or decree.

3. Within prayer clause (f), insert the following at the foot thereof, i.e. after the words "or at all":

"in favor of any party other than the Plaintiffs"

29. The original claim in the plaint was for delivery up and cancellation of a conveyance deed dated May 27, 2011 and for declaration of the plaintiffs' exclusive right to construct as per the agreements dated August 2, 1989 and October 19, 1994.

30. To get such reliefs, the plaintiffs were merely to prove the agreements and the nature of rights conferred thereunder. For the cancellation of conveyance as prayed for in the original plaint, the plaintiffs were to prove that the defendants were not entitled to convey the property.

31. However, it is argued by the opposite party nos. 1 to 3, the amendment altered the nature of proof required for specific performance to something entirely different from the original ingredients required to be proved before the amendment. Apart from the original proofs as above, the plaintiffs would now have to show that the agreements are still valid and subsisting, that the plaintiffs performed and have been ready and willing to perform their obligations under the agreements at all relevant points of time and that the plaintiffs did not commit any breach of their obligations in terms of the contract.

32. Therefore, the entire nature of evidence and proof required to seek the original reliefs would undergo a sea change if the amended reliefs were to be proved.

33. Learned counsel for the opposite party nos. 1 to 3 then argues that the principle laid down in Order II Rule 2 of the Code of Civil Procedure applies to amendment in the same suit as well. It is argued that if, on the same set of facts, a second suit for specific performance would be barred by Order II Rule 2 of the Code, the same principle has to apply to an amendment of the first suit, since the plaintiffs could not get indirectly by amendment, what they could not directly by filing a new suit for the same reliefs.

34. It is further contended on behalf of the opposite party nos. 1 to 3 that there was no bar at the relevant point of time for the plaintiffs-developers to file a suit for specific performance of contract, as argued to be created by Vipin Bhimani (supra), in view of the earlier division bench judgment of this court in Bhaskar Aditya (supra), wherein it was held that a developer can maintain a suit for specific performance of contract. As such, there was no scope of doubt, in view of the earlier judgment not being considered in Vipin Bhimani (supra), that such a suit was maintainable at the relevant juncture.

35. In this context, learned counsel for the opposite party nos. 1 to 3 places reliance on a judgment reported at 1980 (2) CLJ 169 [Andhra Steel Corporation vs. A.S.C. Engineers and Consultants and Ors.], wherein it was held that even if, on undisputed facts, controversial questions of law arise on which two views can be taken, Order VII Rule 11 of the Code of Civil Procedure cannot be attracted, and the plaint could not be rejected, since the suit might raise both questions of law as well as facts. Placing reliance on such proposition, it is argued that, in the year 2011, when the suit was filed, specific performance was still available to the plaintiffs, even if arguably there was a doubt in the mind of the plaintiffs in that regard. However, the plaintiffs deliberately chose to omit/abandon the relief of specific performance and alternative damages, thus attracting the bar envisaged in Order II Rule 2 of the Code.

36. The expression "omits to sue" would mean that the bar to sue for the second suit applies from the date of filing of the first suit. Again, it is contended, the expression "cannot be sued afterwards", also in Order II Rule 2 of the Code, not only applies to a second suit but to an amendment in the same suit as well. In placing particular reliance on paragraph nos. 24, 30 and 31 of the judgment reported at (2010) 14 SCC 596 [Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Registered) vs. Ramesh Chander and others], learned counsel argues that the language of Order II Rule 2 was itself sufficient to indicate that the relevant point of time to be considered is the point of time when the first suit was filed, and not the adjudication of the same, thereby barring not only the second suit but even an amendment in the same suit, filed at a later stage, from incorporating the reliefs omitted in the original plaint.

37. The next contention of the opposite party nos. 1 to 3 is that the plaint states that Clause 9 of the agreement dated October 19, 1994 provides that necessary steps are to be taken within six months thereof and the power of attorney would be valid initially for the said period. Thus, the agreement expired in the year 2000. No case has been made out in the plaint that the same was extended by mutual arrangement and/or by conduct.

38. It is argued that the arguments of the petitioners were based on a fallacious application of the second part of Article 54 of the Limitation Act, whereas the relevant part would be the first part of Article 54 of the said Act. As per such first part, the three years of limitation would commence from the year 2000, when the date fixed for performance of the agreement dated October 19, 1994 expired, that is, after six years from its inception. In such view of the matter, the suit as well as the amendments were barred by limitation, from the year 2000 itself, much after which both were filed.

39. In this context, learned counsel for the opposite party nos. 1 to 3 places reliance on a judgment reported at (2001) 6 SCC 163 [Vishwambhar and others vs. Laxminarayan (Dead) Through LRS and another], for the proposition that, if sale deeds were required to be set aside before making any claim as to the property sold, the suit, without such prayer, would be of no avail. Such a defect cannot be cured by amendment after the limitation period.

40. The next judgment cited is reported at (1997) 11 SCC 457 [Vijendra Kumar Goel vs. Kusum Bhuwania (Smt)], wherein it was held that a suit for declaration and injunction could not be amended to one for specific performance of contract, particularly at a juncture when such specific performance was time-barred.

41. The next judgment cited is of K. Raheja Constructions Ltd. and another vs. Alliance Ministries and others reported at 1995 Supp (3) SCC 17, wherein it was held that in a suit for permanent injunction, an amendment for specific performance filed after seven years would be time-barred, since the plaintiffs admitted that the defendants had refused to abide by the terms of the contract much before.

42. The last argument made by the opposite party nos. 1 to 3 is that, after institution of the first suit, that is, Title Suit No. 10216 of 2011, from which the instant revision arises, the plaintiffs filed Title Suit No. 10486 of 2014 for specific performance of the concerned agreements and Title Suit No. 63 of 2015 for damages in the same context. Therefore, it is argued, the amendment in the present suit is unnecessary, since substantive suits for the same reliefs were already filed and sub judice in the same court. At best, the three suits could be tried one after the other or be consolidated, as rightly observed by the trial court, but the amendment in the current suit for the same reliefs was redundant and unnecessary and was rightly rejected on that ground alone.

43. Distinguishing the judgments cited by the plaintiffs/petitioners, learned counsel for the opposite party nos. 1 to 3 submits as follows:

44. As far as the judgment reported at (2006) 4 SCC 385 [Rajesh Kumar Aggarwal and others vs. K.K. Modi and others] is concerned, it is submitted that the same lays down the correct proposition of law. However, the same is not applicable to the present case since the opposite parties did not make any submission on merits of the proposed amendments, nor was the same considered by the trial court while refusing the amendment. The amendment, as proposed in the instant case, could not be allowed ex facie, even assuming that the plaint statements and the averments made in the amendment application were true.

45. Dealing with the judgment reported at (2008) 3 SCC 717 [Usha Devi vs. Rijwan Ahamd and others], also cited by the petitioners, learned counsel for the opposite party nos. 1 to 3 argues that the said judgment is not applicable to the instant case as the same was rendered primarily on the proviso to Order VI Rule 17 of the Code of Civil Procedure. As regards the merits of the amendment not being gone into at the time of deciding the amendment applications, the same is a well-accepted proposition and the opposite party nos. 1 to 3 do not dispute the same.

46. Lastly, dealing with the judgment reported at (2012) 11 SCC 341 [Abdul Rehman and another vs. Mohd. Ruldu and others], it is argued that the same also deals with the proviso to Order VI Rule 17 of the Code and its effects on an amendment and, as such, is not applicable to the present case at all, where no such question arises.

47. Learned senior counsel appearing for the opposite party no. 4, who was the defendant no. 2 in the court below, virtually submits in the same line as the opposite party nos. 1 to 3 and relies on the same propositions of law as advanced by the opposite party nos. 1 to 3.

48. It is acknowledged by this court that all the contesting parties were gracious enough to file written notes on arguments in order to assist the court to arrive at its present judgment.

49. The first question which arises in the present case is, whether the amendment sought by the petitioners to the plaint was barred by the principle of Order II Rule 2 of the Code of Civil Procedure.

50. The said provision is set out below:

"Order II Rule 2 of the Code of Civil Procedure:

2. Suit to include the whole claim. - (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim. - Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs. - A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation. - For the purpose of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.

Illustration A lets a house to B at a yearly rent of Rs. 1,200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907."

51. The expressions "omits to sue" and "intentionally relinquish any portion of his claim" give an indication as to the intention of the legislature in framing the said rule. The term 'sue' can mean both the filing of the suit and prosecuting the suit to its culmination, depending on the context of the provision. In the present case, the legislature thought it fit to debar a plaintiff from suing afterwards for any relief which he/she has omitted without the leave of the court or from suing in respect of any portion of his claim which he intentionally relinquishes. Order II Rule 2(1) provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action.

52. A 'suit' contemplates the entire tenure of the litigation, from the institution to the culmination in a decree or, in a broader sense, taking an appeal to be a continuation of a suit, to the final decree passed by the most superior court in the judicial hierarchy in that regard.

53. The moment it is stated by the legislature that "every suit shall include the whole of the claim", it gives a leeway to the plaintiffs to incorporate such claim at any point of time in the suit, diluting the relevant juncture, as may be argued on the expression "omits to sue" to be the institution of the suit.

54. In the present context, that is, in the perspective of Order II Rule 2, the term 'sue' is merely a verb of the noun 'suit', taking into its fold the entire period during which the suit is instituted and maintained, since both "sue" and "suit" have been used in the provision interchangeably.

55. Drawing an analogy from Order XXII of the Code of Civil Procedure, the same contemplates the devolution of a "right to sue", although heirs and legal representatives can only be impleaded on the death of a party in an existing litigation, which has gone beyond the state of filing. The said provision does not contemplate that the heirs and the legal representatives of the deceased shall institute a fresh suit. As such, the devolution of a right to sue, if applied in the Code itself to a pending suit, the expression 'sue' has to contemplate the entire period from institution of the action to culmination in a relief or refusal thereof.

56. The scopes of Order VI Rule 17 and Order VIII Rule 9 of the Code of Civil Procedure, in fact, specifically empower the court to permit additional pleadings to be incorporated at any stage subsequent to the filing of a suit, subject to the conditions therein being satisfied. If we consider the term 'pleadings', which are permitted to be thus introduced even later on in the suit, we have to resort to the definition of pleading in Order VI Rule 1 of the Code, which provides that 'pleading' means a plaint or written statement.

57. Moving on to Order VII Rule 1 of the Code, we come to learn that the particulars to be contained in a plaint (which is part of 'pleading' as per Order VI Rule 1 of the Code) includes "(g) relief".

58. Therefore, since additional 'pleadings' is equal to the particulars incorporated in a plaint, Order VI Rule 1, read in conjunction with Order VII Rule 1 of the Code, permits an additional relief also to be brought in at a later stage by virtue of Order VI Rule 17 and Order VIII Rule 9 of the Code of Civil Procedure.

59. Hence, if the term 'sue', as used in Order II Rule 2 of the Code has to be read in the light of the rest of the scheme of the Code of Civil Procedure and not in a restrictive manner. It has to envisage not merely the point of institution of the suit but the entire tenure of the suit.

60. Otherwise, the provisions of Order VI Rule 17 and Order VIII Rule 9, as well as Order VIII Rule 6, permitting counter claims, would be rendered nugatory, in the sense that every relief sought to be brought in by way of amendment subsequent to the suit are reliefs which were omitted and 'relinquished' to be taken at the time of institution of the suit, thereby debarring the addition of any relief whatsoever by way of amendment under Order VI Rule 17 or additional pleadings Order VIII Rule 9 or by way of a counter claim under Order VIII Rule 6 of the Code, at a later stage of the suit.

61. Such an interpretation of Order II Rule 2 would thus be absurd. Since absurdity cannot be imputed on the intention of the legislature while interpreting the statute, it is evident that such absurd interpretation should be shunned and a harmonious and more practicable construction is to be adopted, reading Order II Rule 2 in the light of the other provisions of introduction of subsequent amendments, as laid down in the Code of Civil Procedure. Such an interpretation would make it obvious that the omission to sue or intentional relinquishment of a part of claim, as contemplated in Order II Rule 2 of the Code, would have to mean that the court has to wait till culmination of the suit and for the plaintiffs to ask for a claim relinquished, or relief omitted, in the first suit, in a subsequent suit, for attracting the bar of Order II Rule 2 of the Code.

62. In fact, Gurbux Singh (supra), held that the bar of Order II Rule 2 of the Code applies to subsequent suits. As regards the decision of (2010) 14 SCC 596 [Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Registered) vs. Ramesh Chander and others], the ex facie bar of limitation was taken into consideration in the said judgment and the decision on Order II Rule 2 of the Code in the said judgment has to be seen in the light of the bar of limitation. The entire consideration of the Supreme Court therein was that there was a relinquishment of a claim by the plaintiffs, but the relevant point which was considered by the court was after the relief became time-barred. As such, the plinth of the said judgment was the relief being barred by limitation, and Order II Rule 2 only came in as an adjunct. The said judgment cannot be said to be a precedent for the proposition that the bar envisaged in Order II Rule 2 of the Code is applicable to amendments in the same suit.

63. With utmost respect to the two Delhi High Court judgments cited on behalf of the opposite party nos. 1 to 3, those did not lay down the correct proposition of law, in so far as the applicability of Order II Rule 2 to the same suit is concerned. Although such judgments have a persuasive value, this court, with respect, chooses to deviate from the ratio laid down therein to the above limited extent, in the light of the detailed discussions made above as regards the appropriate context and position of Order II Rule 2 in the wider perspective of the scheme of the Code of Civil Procedure. Moreover, the reference to Gurbux Singh (supra) in the Delhi High Court judgments, was in the passing, without taking into consideration that Gurbux Singh (supra) was never a precedent for the proposition that the bar of Order II Rule 2 would apply to amendments in the same suit which, ex facie would lead to an absurdity, which is always to be avoided in interpretation of statutes.

64. As far as the question of limitation is concerned, if one goes by the plaint, the cause of action of the suit, as per the plaint, was the subsequent deed of 2011, and the plaintiffs' knowledge of the same on May 29, 2011, which would bring the amendment-in-question within the period of limitation as contemplated in Article 54 of the Limitation Act.

65. As far as the argument of the opposite party nos. 1 to 3 is concerned, that the commencement of limitation was from the year 2000, it is ambiguous from the intrinsic evidence of the agreements themselves, whether time was an essence of the said contracts, in view of the stipulation in the said agreements not being specific as to the said agreement coming to an end positively upon the expiry of six years thereof. The agreement of 1994 was rather open-ended, leaving it open for the parties to continue with the terms of the agreement even after the expiry of six years. It is a question of fact, to be decided on evidence at the time of trial of the suit, considering the attending circumstances, subsequent events and conduct of parties, whether time was the essence of such contract, in the context of the terms therein. Hence, the question of limitation is clearly an arguable one in the present case and the amendment sought to bring in the reliefs of specific performance and damages and consequential reliefs and other factual bases, could not be shut out at the inception on the face of it. It is well-settled that if the bar of law, as contemplated in Order VII Rule 11, is arguable and required to be put to the test of trial on evidence, even a plaint cannot be rejected at the inception.

66. The same principles applies all the more to an amendment application, since it is also settled law that the court cannot go into the merits of an amendment at the juncture when the amendment application itself is decided. Since the amendment proposed is not ex facie barred by limitation, the same ought to have been allowed by the trial court.

67. That apart, even if it is taken that the amendment would otherwise be time-barred, the bona fide doubt expressed by the plaintiffs as a ground for the delay in taking out the amendment application, would be sufficient and plausible explanation for such delay, if there were to be any. When courts themselves were in doubt as to the correct position of law pertaining to filing of specific performance

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suits by developers at the relevant juncture, requiring resolution by a larger bench, the litigants and their counsel could not be blamed for being in doubt as to whether to jeopardize the suit by putting in the primary relief as specific performance of contract, thereby subjecting the suit to the peril of being rejected at the inception. 68. As to the other argument, as to change of nature and character, the reliefs sought by way of amendment and the corresponding facts do not differ in character from the original cause of action taken in the suit. Rather, the amendments sought are a continuation of the same set of facts which comprised the cause of action for the initial reliefs. The bundle of facts being inter-connected, the relief of specific performance and the alternative relief of damages would be but a natural consequence and a corollary of the grievance ventilated in the suit. 69. The pendency of subsequent suits could not be a consideration for deciding the maintainability of an amendment application in a prior suit, the only consideration wherein would be whether the amendment is ex facie barred by any law or otherwise not maintainable. At best, the opposite parties could set up the objection as to the bar stipulated in Order II Rule 2 of the Code in the second and third suits, which would not, however, be a relevant factor in deciding the amendment in the first suit. While deciding the present amendment, the court only had to confine itself to the periphery of the prima facie maintainability of the amendment in the context of the suit. In the present case, since the amendment asked for, falls within the broader conspectus of the original pleadings and reliefs claimed in the suit and are necessary for deciding the real questions in controversy in the suit, bearing Title Suit No. 10216 of 2011, the trial court refused to exercise jurisdiction vested in it by law in rejecting such amendment. 70. In the aforesaid circumstances, C.O. No.3257 of 2018 is allowed, thereby setting aside the impugned order and permitting the amendments sought by the plaintiffs/petitioners in Title Suit No. 10216 of 2011, pending before the Civil Judge (Senior Division), Second Court at Alipore, District: South 24 Parganas. The plaintiffs/petitioners shall file their amended plaint within November 27, 2019 in the trial court. Additional written statement, if any, shall be filed by the defendants by December 11, 2019 in the court below. 71. There will be no order as to costs. 72. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities. In Re: C.O. No.4118 of 2018 1. This application under Article 227 of the Constitution of India is an offshoot of C.O. No.3257 of 2018. In the latter revision, the plaintiffs challenged an order rejecting their application for amendment of the plaint. 2. In the present revision, the plaintiffs have challenged a subsequent order dated December 3, 2018 whereby their prayer for adjournment of the suit on the ground that C.O. No.3257 of 2018 was pending in this court, was refused on the premise that there was still no order of stay from this court. By the impugned order dated December 3, 2018, the records were taken up for framing of issues and the issues were framed in a separate sheet. 3. Since, by a previous order passed this day, C.O. No.3257 of 2018 has been allowed, thereby permitting the amendment of plaint sought by the petitioners, as a necessary consequence, C.O. No.4118 of 2018 is also allowed, thereby setting aside the impugned order and directing the trial court to recast the issues already framed in the light of the amended plaint and additional written statement filed by the parties respectively. The trial court is given the liberty either to recast the issues already framed in such light as directed above or to formulate additional issues. In the event either of the two courses are inconvenient, the trial court would be at liberty to strike out the issues already framed and frame fresh issues in the light of the amended plaint and the original as well as the additional written statement. 4. There will be no order as to costs. 5. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
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