# LIFE INSURANCE CORPORATION OF INDIA v. SANJEEV BUILDERS PRIVATE LIMITED & ANR

- **Citation:** [2022] 8 S.C.R. 1121
- **Court:** Supreme Court of India
- **Decided:** 2022-09-01
- **Case number:** Civil Appeal No. 5909 of 2022
- **Bench:** Aniruddha Bose, J. B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/life-insurance-corporation-of-india-v-sanjeev-builders-private-limited-anr-36390
- **Pages:** 45

## Headnote

Code of Civil Procedure, 1908 - Or. II r. 2 and Or. VI r. 17 -
Applicability of Or. II r. 2 to an amendment application - Held:
Or.II r.2 operates as a bar against a subsequent suit if the requisite
conditions for application thereof are satisfied and the field of
amendment of pleadings falls far beyond its purview - The bar of
Or. II r.2 applies only to the subsequent suits - Or. II r.2 cannot
apply to an amendment which is sought on an existing suit.
Specific Relief Act, 1963 - Suit for Specific Performance -
Code of Civil Procedure, 1908 - Or. II r.2, Or. VI r.17 - Applicability
of - Respondents instituted suit seeking specific performance of
the agreement and in the alternative, prayed for damages - High
Court permitted the Respondents to amend the plaint, seeking to
enhance the amount towards the alternative claim for damages -
Correctness of - Held: There is no merit in the contention raised on
behalf of the appellant that the amendment application is liable to
be rejected by applying the bar u/Or.II r.2 CPC - Or.II r.2 of CPC
cannot apply to an amendment which is sought on an existing suit -
Further, the amendment application is also not hit by the principle
of constructive res judicata - The said principle has no application
in the instant case, since there was no formal adjudication between
the parties after full hearing - Litigation before this Court has come
up at the stage when the courts below allowed the amendment of
plaint for the purpose of enhancing the amount towards damages
in the alternative to the main relief of specific performance of the
contract - Also, it cannot be successfully urged that a suit for specific
performance falling under the provisions of the 1963 Act would
not be governed by the provisions of the CPC - It is, therefore,
clear that to such a suit the provisions contained in Or.VI, r.17 of
the CPC would apply and a plaintiff who has earlier failed to
incorporate the reliefs for compensation or who has incorporated
A
B
C
D
E
F
G
H
1122
SUPREME COURT REPORTS
[2022] 8 S.C.R.
the reliefs for compensation but seeks amendment in the same, could
seek the permission of the court to introduce these reliefs by way of
amendment - Impugned order passed by the Division Bench of the
High Court, affirming the order passed by the Single Judge allowing
the amendment application not disturbed - Doctrine of constructive
res judicata.
Code of Civil Procedure, 1908 - Or. VI r. 17 - Amendment of
pleadings - Held: All amendments are to be allowed which are
necessary for determining the real question in controversy provided
it does not cause injustice or prejudice to the other side - This is
mandatory, as is apparent from the use of the word "shall", in the
latter part of Or.VI r.17 - In dealing with a prayer for amendment
of pleadings, the court should avoid a hypertechnical approach,
and is ordinarily required to be liberal especially where the opposite
party can be compensated by costs - Where the amendment would
enable the court to pin-pointedly consider the dispute and would
aid in rendering a more satisfactory decision, the prayer for
amendment should be allowed - Where the amendment merely sought
to introduce an additional or a new approach without introducing
a time barred cause of action, the amendment is liable to be allowed
even after expiry of limitation - Delay in applying for amendment
alone is not a ground to disallow the prayer - Where the aspect of
delay is arguable, the prayer for amendment could be allowed and
the issue of limitation framed separately for decision.
Code of Civil Procedure, 1908 - Or. VI r. 17 - Amendment of
pleadings - When to be allowed and not to be allowed - Discussed.
Specific Relief Act, 1963 - Proviso to s.21(5) and s.22(2) -
Code of Civil Procedure, 1908 - Or. VI r. 17 - Held: The two provisos
deal with the question of permitting the plaintiff to amend his plaint
- It is not, as if, in the absence of these two provisos, it is not
permissible in law for the plaintiff to c

## Text

_Characters 0–39,769 of 99,066. This is a partial read: ask again with offset=39769 for what follows._

A
B
C
D
E
F
G
H
1121
[2022] 8 S.C.R. 1121
1121
LIFE INSURANCE CORPORATION OF INDIA
v.
SANJEEV BUILDERS PRIVATE LIMITED & ANR.
(Civil Appeal No. 5909 of 2022)
SEPTEMBER 1, 2022
[ANIRUDDHA BOSE AND J. B. PARDIWALA, JJ.]
Code of Civil Procedure, 1908 - Or. II r. 2 and Or. VI r. 17 -
Applicability of Or. II r. 2 to an amendment application - Held:
Or.II r.2 operates as a bar against a subsequent suit if the requisite
conditions for application thereof are satisfied and the field of
amendment of pleadings falls far beyond its purview - The bar of
Or. II r.2 applies only to the subsequent suits - Or. II r.2 cannot
apply to an amendment which is sought on an existing suit.
Specific Relief Act, 1963 - Suit for Specific Performance -
Code of Civil Procedure, 1908 - Or. II r.2, Or. VI r.17 - Applicability
of - Respondents instituted suit seeking specific performance of
the agreement and in the alternative, prayed for damages - High
Court permitted the Respondents to amend the plaint, seeking to
enhance the amount towards the alternative claim for damages -
Correctness of - Held: There is no merit in the contention raised on
behalf of the appellant that the amendment application is liable to
be rejected by applying the bar u/Or.II r.2 CPC - Or.II r.2 of CPC
cannot apply to an amendment which is sought on an existing suit -
Further, the amendment application is also not hit by the principle
of constructive res judicata - The said principle has no application
in the instant case, since there was no formal adjudication between
the parties after full hearing - Litigation before this Court has come
up at the stage when the courts below allowed the amendment of
plaint for the purpose of enhancing the amount towards damages
in the alternative to the main relief of specific performance of the
contract - Also, it cannot be successfully urged that a suit for specific
performance falling under the provisions of the 1963 Act would
not be governed by the provisions of the CPC - It is, therefore,
clear that to such a suit the provisions contained in Or.VI, r.17 of
the CPC would apply and a plaintiff who has earlier failed to
incorporate the reliefs for compensation or who has incorporated
A
B
C
D
E
F
G
H
1122
SUPREME COURT REPORTS
[2022] 8 S.C.R.
the reliefs for compensation but seeks amendment in the same, could
seek the permission of the court to introduce these reliefs by way of
amendment - Impugned order passed by the Division Bench of the
High Court, affirming the order passed by the Single Judge allowing
the amendment application not disturbed - Doctrine of constructive
res judicata.
Code of Civil Procedure, 1908 - Or. VI r. 17 - Amendment of
pleadings - Held: All amendments are to be allowed which are
necessary for determining the real question in controversy provided
it does not cause injustice or prejudice to the other side - This is
mandatory, as is apparent from the use of the word "shall", in the
latter part of Or.VI r.17 - In dealing with a prayer for amendment
of pleadings, the court should avoid a hypertechnical approach,
and is ordinarily required to be liberal especially where the opposite
party can be compensated by costs - Where the amendment would
enable the court to pin-pointedly consider the dispute and would
aid in rendering a more satisfactory decision, the prayer for
amendment should be allowed - Where the amendment merely sought
to introduce an additional or a new approach without introducing
a time barred cause of action, the amendment is liable to be allowed
even after expiry of limitation - Delay in applying for amendment
alone is not a ground to disallow the prayer - Where the aspect of
delay is arguable, the prayer for amendment could be allowed and
the issue of limitation framed separately for decision.
Code of Civil Procedure, 1908 - Or. VI r. 17 - Amendment of
pleadings - When to be allowed and not to be allowed - Discussed.
Specific Relief Act, 1963 - Proviso to s.21(5) and s.22(2) -
Code of Civil Procedure, 1908 - Or. VI r. 17 - Held: The two provisos
deal with the question of permitting the plaintiff to amend his plaint
- It is not, as if, in the absence of these two provisos, it is not
permissible in law for the plaintiff to carry out an amendment in his
pleading by introducing a relief for enhanced compensation - r.17
of Order VI does confer power on a Court to allow a party to alter
or amend his pleading in such manner and on such terms as may be
just and allows all such amendments to be made as may be necessary
for the purpose of determining the real question in controversy
between the parties.
A
B
C
D
E
F
G
H
1123
Specific Relief Act, 1963 - s.21 - Scope and ambit of -
Discussed - Specific Relief Amendment Act, 2018.
Words & Phrases:
"shall", in the latter part of Or.VI r.17 - Code of Civil
Procedure, 1908 - Or.VI r.17.
"omits to sue" and "intentionally relinquish any portion of
his claim" - Discussed - Code of Civil Procedure, 1908 - Or.II r.2.
Dismissing the appeal, the Court
HELD: 1.1 It is well settled that the court must be extremely
liberal in granting the prayer for amendment, if the court is of the
view that if such amendment is not allowed, a party, who has
prayed for such an amendment, shall suffer irreparable loss and
injury. It is also equally well settled that there is no absolute rule
that in every case where a relief is barred because of limitation,
amendment should not be allowed. 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. The power to allow an amendment is
undoubtedly wide and may be appropriately exercised at any stage
in the interests of justice, notwithstanding the law of limitation.
The principles applicable to the amendments of the plaint are
equally applicable to the amendments of the written statements.
The courts are more generous in allowing the amendment of the
written statement as question of prejudice is less likely to operate
in that event. The defendant has a right to take alternative plea
in defense which, however, is subject to an exception that by the
proposed amendment other side should not be subjected to
injustice and that any admission made in favor of the plaintiff is
not withdrawn. All amendments of the pleadings should be allowed
which are necessary for determination of the real controversies
in the suit provided the proposed amendment does not alter or
substitute a new cause of action on the basis of which the original
lis was raised or defense taken. Inconsistent and contradictory
allegations in negation to the admitted position of facts or mutually
destructive allegations of facts should not be allowed to be
incorporated by means of amendment to the pleadings. The
proposed amendment should not cause such prejudice to the other
LIFE INSURANCE CORPORATION OF INDIA v. SANJEEV
BUILDERS PRIVATE LIMITED & ANR.
A
B
C
D
E
F
G
H
1124
SUPREME COURT REPORTS
[2022] 8 S.C.R.
side which cannot be compensated by costs. No amendment
should be allowed which amounts to or relates in defeating a legal
right accruing to the opposite party on account of lapse of time.
The delay in filing the application for amendment of the pleadings
should be properly compensated by costs and error or mistake
which, if not fraudulent, should not be made a ground for rejecting
the application for amendment of plaint or written statement. But
undoubtedly, every case and every application for amendment
has to be tested in the applicable facts and circumstances of the
case. As the proposed amendment of the pleadings amounts to
only a different or an additional approach to the same facts, this
Court has repeatedly laid down the principle that such an
amendment would be allowed even after the expiry of statutory
period of limitation. [Paras 19, 23, 25 & 26][1135-C-D; 1137-D;
1138-B-G]
L.J. Leach & Co. Ltd. &Anr. v. Jardine Skinner & Co.
AIR 1957 SC 357 : [1957] SCR 438; T.N. Alloy Foundry
Co. Ltd. v. T.N. Electricity Board & Ors. (2004) 3 SCC
392 : [2004] 2 SCR 352; Pirgonda Hongonda Patil v.
Kalgonda Shidgonda Patil 2 Ors. [1957] SCR 595 :
AIR 1957 SC 363; Ganga Bai v. Vijay Kumar & Ors.
(1974) 2 SCC 393 : [1974] 3 SCR 882; M/s Ganesh
Trading Co. v. Moji Ram (1978) 2 SCC 91 : [1978] 2
SCR 614; South Konkan Distilleries & Anr. v.
Prabhakar Gajanan Naik & Ors. (2008) 14 SCC 632 :
[2008] 13 SCR 295; A.K. Gupta Sons Ltd. v. Damodar
Valley Corporation AIR 1967 SC 96 : [1966] 1 SCR
796; Pankaja & Anr. v. Yellappa (dead) by LRs. & Ors.
(2004) 6 SCC 415 - relied on.
1.2 One of the cardinal principles of law in allowing or
rejecting an application for amendment of the pleading 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. But that would be a factor to be
taken into account in the exercise of the discretion as to whether
the amendment should be ordered, and does not affect the power
of the court to order it, if that is required in the interest of justice.
[Para 30][1141-D-E]
A
B
C
D
E
F
G
H
1125
2. The judgment and order passed by the coordinate Bench
of this Court in the Life Insurance Corporation of India (between
the same parties) has no application so far as the present appeal
is concerned. The appellant herein cannot succeed in the present
appeal merely on the strength of the judgment and order passed
by this Court in the Life Insurance Corporation of India. [Para
42][1148-D]
Life Insurance Corporation of India v. Sanjeev Builders
Pvt. Ltd. & Ors. (2018) 11 SCC 722 : [2017] 10 SCR
208 - held inapplicable.
3.1 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. [Para 45][1149-D-E]
3.2 The bar of Order II Rule 2 of the CPC applies only to
the subsequent suits. If the two suits and the relief claimed therein
are based on the same cause of action then the subsequent suit
will become barred under Order II Rule 2 of the CPC. However,
there is no merit in the contention raised on behalf of the appellant
herein that the amendment application is liable to be rejected by
applying the bar under Order II Rule 2 of the CPC. Order II
Rule 2 of the CPC cannot apply to an amendment which is sought
on an existing suit. Also not impressed by the contention raised
on behalf of the appellant herein that the amendment application
is hit by the principle of constructive res judicata. The principle
of constructive res judicata has no application in the instant case,
since there was no formal adjudication between the parties after
full hearing. The litigation before this Court has come up at the
stage when the courts below allowed the amendment of plaint for
LIFE INSURANCE CORPORATION OF INDIA v. SANJEEV
BUILDERS PRIVATE LIMITED & ANR.
A
B
C
D
E
F
G
H
1126
SUPREME COURT REPORTS
[2022] 8 S.C.R.
the purpose of enhancing the amount towards damages in the
alternative to the main relief of specific performance of the
contract. [Paras 49, 50 & 52][1152-D-E; 1153-G-H; 1154-A]
Gurbux Singh v. Bhooralal AIR 1964 SC 1810 : [ 1964]
7 SCR 831 - followed.
Vaish Cooperative Adarsh Bank Ltd. v. Geetanjali
Despande & Ors. (2003) 102 DLT 570 - approved.
4.1 The Act 1963 contemplates that in addition to or in
substitution of a claim for performance, a plaintiff is entitled to
claim compensation. Under sub-section (2) of Section 21, the
court is empowered to award compensation for breach where it
holds that there is a contract between the parties which was
broken by the defendant but in the event, it decides that specific
performance ought not to be granted. Sub-section (3) of Section
21 empowers the court to grant compensation for breach in
addition to a decree for specific performance where it is of the
view that specific performance alone would not satisfy the justice
of the case. Sub-section (5), however, stipulates that
compensation cannot be awarded under the section unless the
Plaintiff has claimed such compensation in the plaint. This
provision is mandatory. The proviso to sub-section (5) of Section
21 dilutes the rigours of the main provision by allowing the plaintiff
who has not claimed such compensation in the plaint to amend
the plaint at any stage of the proceedings and the court, it has
been provided, shall at any stage of the proceedings allow an
amendment for including a claim for such compensation on such
terms as may be just. Section 22 has a non-obstante provision
which overrides the CPC. A plaintiff who claims specific
performance of a contract for the transfer of immovable property,
may in an appropriate case ask for possession, partition and
separate possession of the property, in addition to specific
performance. The plaintiff may also claim any other relief including
the refund of earnest money or deposit paid, in case the claim for
specific performance is refused. Corresponding to the provisions
of sub-section (5) of Section 21, sub-section (2) of Section 22
stipulates that such relief cannot be granted by the court unless
it has been specifically claimed. However, the proviso requires
A
B
C
D
E
F
G
H
1127
that the court shall at any stage of the proceedings allow the
plaintiff to amend the plaint to claim such relief where it has not
been originally claimed on such terms which may appear just.
[Paras 54, 55, 56 & 58][1154-B; 1155-B-E; 1156-D-E]
Shamsu Suhara Beevi v. G. Alex & Anr. (2004) 8 SCC
569 : [2004] 3 Suppl. SCR 653 - referred to.
4.2 The plaintiffs in the original plaint claimed for
compensation in addition to a decree for specific performance of
the agreement to sell. Therefore, strictly speaking the provisions
of Section 21 of the Act 1963 are not attracted to the facts of the
present case. The intention of the plaintiffs in seeking for
amendment of the plaint appears to be to get an enhanced amount
of compensation than what was originally claimed in the original
plaint which was restricted only to Rs. 1,01,00,000/-. The aforesaid
intention becomes apparent when the averments made in the
application praying for amendment are looked into inasmuch as,
the plaintiffs have stated that in view of the fact that in last 30
years there had been a tremendous escalation of the value of the
suit property which has an adverse effect on the quantum of
damages, compensation, relief sought for the breach of contract
by the appellant/defendant. According to the plaintiffs the raising
of the amount of compensation to Rs. 400,01,00,000/- from Rs.
1,01,00,000/- as claimed in the original plaint has been
necessitated in view of undue delay in the prosecution of the suit
which was not earlier foreseen, which in turn has caused more
damage to the plaintiffs through the years and therefore, they
have sought to raise the amount of compensation to the present
value as stated above from Rs. 1,01,00,000/-. The two provisos
referred to, deal with the question of permitting the plaintiff to
amend his plaint. It is not, as if, in the absence of these two
provisos, it is not permissible in law for the plaintiff to carry out
an amendment in his pleading by introducing a relief for enhanced
compensation. Rule 17 of Order VI of the CPC does confer power
on a Court to allow a party to alter or amend his pleading in such
manner and on such terms as may be just. This rule does not
stop at that, but it further says that all such amendments should
be made as may be necessary for the purpose of determining the
LIFE INSURANCE CORPORATION OF INDIA v. SANJEEV
BUILDERS PRIVATE LIMITED & ANR.
A
B
C
D
E
F
G
H
1128
SUPREME COURT REPORTS
[2022] 8 S.C.R.
real question in controversy between the parties. This provision
which empowers the court in its discretion to permit a party to
amend his pleadings, was already on the statute book, when the
Specific Relief Act, 1963 was enacted. It can, therefore, be
presumed that when the latter legislation was on the anvil, the
Parliament was aware of this power of the court to permit
amendment of pleadings. Therefore, it cannot be successfully
urged that a suit for specific performance falling under the
provisions of the Act, 1963 would not be governed by the
provisions of the CPC. It is, therefore, clear that to such a suit
the provisions contained in Order VI Rule 17 of the CPC would
apply and a plaintiff who has earlier failed to incorporate the reliefs
for compensation or who has incorporated the reliefs for
compensation but seeks amendment in the same, could seek the
permission of the court to introduce these reliefs by way of
amendment. [Paras 64 & 66][1160-F-H; 1161-A-B, E-H; 1162A]
4.3 Final conclusions:
(i) Order II Rule 2 CPC operates as a bar against a
subsequent suit if the requisite conditions for application thereof
are satisfied and the field of amendment of pleadings falls far
beyond its purview. The plea of amendment being barred under
Order II Rule 2 CPC is, thus, misconceived and hence negatived.
(ii) All amendments are to be allowed which are necessary
for determining the real question in controversy provided it does
not cause injustice or prejudice to the other side. This is
mandatory, as is apparent from the use of the word "shall", in the
latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and
proper adjudication of the controversy between the parties,
and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the
other side,
A
B
C
D
E
F
G
H
1129
(b) by the amendment, the parties seeking amendment
does not seek to withdraw any clear admission made by
the party which confers a right on the other side and
(c) the amendment does not raise a time barred claim,
resulting in divesting of the other side of a valuable accrued
right (in certain situations).
(iv) A prayer for amendment is generally required to be
allowed unless
(i) by the amendment, a time barred claim is sought
to be introduced, in which case the fact that the claim would
be time barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid
defence.
(v) In dealing with a prayer for amendment of pleadings,
the court should avoid a hypertechnical approach, and is ordinarily
required to be liberal especially where the opposite party can be
compensated by costs.
(vi) Where the amendment would enable the court to pinpointedly consider the dispute and would aid in rendering a more
satisfactory decision, the prayer for amendment should be
allowed.
(vii) Where the amendment merely sought to introduce an
additional or a new approach without introducing a time barred
cause of action, the amendment is liable to be allowed even after
expiry of limitation.
(viii) Amendment may be justifiably allowed where it is
intended to rectify the absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground
to disallow the prayer. Where the aspect of delay is arguable, the
prayer for amendment could be allowed and the issue of limitation
framed separately for decision.
(x) Where the amendment changes the nature of the suit
or the cause of action, so as to set up an entirely new case, foreign
LIFE INSURANCE CORPORATION OF INDIA v. SANJEEV
BUILDERS PRIVATE LIMITED & ANR.
A
B
C
D
E
F
G
H
1130
SUPREME COURT REPORTS
[2022] 8 S.C.R.
to the case set up in the plaint, the amendment must be
disallowed. Where, however, the amendment sought is only with
respect to the relief in the plaint, and is predicated on facts which
are already pleaded in the plaint, ordinarily the amendment is
required to be allowed.
(xi) Where the amendment is sought before commencement
of trial, the court is required to be liberal in its approach. The
court is required to bear in mind the fact that the opposite party
would have a chance to meet the case set up in amendment. As
such, where the amendment does not result in irreparable
prejudice to the opposite party, or divest the opposite party of an
advantage which it had secured as a result of an admission by the
party seeking amendment, the amendment is required to be
allowed. Equally, where the amendment is necessary for the court
to effectively adjudicate on the main issues in controversy
between the parties, the amendment should be allowed. [Para
70][1162-G-H; 1163-A-H; 1164-A-H]
B.K. Narayana Pillai v. Parameswaran Pillai & Anr.
(2000) 1 SCC 712 : [1999] 5 Suppl. SCR 271; Jagdish
Singh v. Natthu Singh (1992) 1 SCC 647 : [1991] 2
Suppl. SCR 567- relied on.
Charan Das & Ors. v. Amir Khan & Ors. AIR 1921 PC
50; Kisandas Rupchand & Anr. v. Rachappa Vithoba
Shilwant and Ors. ILR (1909) 33 Bom 644; Ragu
Thilak D. John v. S. Rayappan & Ors. (2001) 2 SCC
472; Vishwambhar & Ors. v. Laxminarayan (Dead)
through Lrs. & Anr. (2001) 6 SCC 163; Vineet Kumar
v. Mangal Sain Wadhera (1984) 3 SCC 352 : [1984] 2
SCR 333 : AIR 1985 SC 817; Sanjeev Builders Pvt.
Ltd. & Ors. v. Life Insurance Corporation of India 2018
SCC OnLine Bom 15283; Mohd. Khalil Khan & Ors.
v. Mahbub Ali Mian & Ors. AIR 1949 PC 78; Upendra
Narain Roy v. Rai Janoki Nath Roy AIR 1919 Cal 904;
Kahini
Developers
Pvt.
Ltd.
v.
Mukesh
Morarjipanchamatia & Ors. (2013) 3 Mah LJ 440;
The Arya Pradeshak Pritinidhi Sabha, Sindh, Punjab
& Bilochistan v. Lahori Mal & Ors. (1924) 6 Lah LJ
A
B
C
D
E
F
G
H
1131
286 : AIR 1924 48 Lah 713; Somasundaram Chettiar
v. Chidambaram Chettiar, AIR 1951 Mad 282; Vijay
Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC
OnLine Del 1897 - referred to.
Case Law Reference
[2017] 10 SCR 208
held inapplicable
Para 7
[1957] SCR 438
relied on
Para 19
[2004] 2 SCR 352
relied on
Para 20
[1957] SCR 595
relied on
Para 22
[1974] 3 SCR 882
relied on
Para 23
[1978] 2 SCR 614
relied on
Para 24
[2008] 13 SCR 295
relied on
Para 25
[1966] 1 SCR 796
relied on
Para 27
(2004) 6 SCC 415
referred to
Para 29
(2001) 2 SCC 472
referred to
Para 31
(2001) 6 SCC 163
referred to
Para 32
[1984] 2 SCR 333
referred to
Para 33
[1964] 7 SCR 831
followed
Para 48
[2004] 3 Suppl. SCR 653
referred to
Para 56
[1999] 5 Suppl. SCR 271
relied on
Para 61
[1991] 2 Suppl. SCR 567
relied on
Para 62
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5909
of 2022.
From the Judgment and Order dated 13.12.2018 of the High Court
of Judicature at Bombay in Appeal [L] No.499 of 2018 in Chamber
Summons No. 854 of 2017 in Suit No.894 of 1986.
D. N. Goburdhun, Sr. Adv., Aakarsh Kamra, Ms. Gauri Gobardhan,
Advs. for the Appellant.
Sanjiv Sen, Sr. Adv., Mahesh Agarwal, Ankur Saigal, N.
Janardhanan, Ms. Kajal Dalal, Abhinabh Garg, Ms. Deepshikha Mishra,
LIFE INSURANCE CORPORATION OF INDIA v. SANJEEV
BUILDERS PRIVATE LIMITED & ANR.
A
B
C
D
E
F
G
H
1132
SUPREME COURT REPORTS
[2022] 8 S.C.R.
E. C. Agrawala, Advs. for the Respondents.
The Judgment of the Court was delivered by
J. B. PARDIWALA, J.
1. Leave granted.
2. This appeal is at the instance of a defendant in a suit filed by
the respondents herein (original plaintiffs) for the specific performance
of contract based on an agreement dated 08.06.1979 and is directed
against the judgment and order passed by the High Court of Judicature
at Bombay dated 13.12.2018 in the Appeal [L] No. 499 of 2018, arising
from the order passed by a learned Single Judge on its ordinary original
civil jurisdiction side in the Chamber Summons No. 854 of 2017 in the
Suit No. 894 of 1986 dated 11.09.2018. The Chamber Summons was
allowed by the High Court at the instance of the plaintiffs, permitting the
plaintiffs to amend the plaint. The order passed by the High Court in the
Chamber Summons came to be affirmed by a Division Bench in the
Appeal [L] No. 499 of 2018. The High Court permitted the plaintiffs to
amend the plaint, seeking to enhance the amount towards the alternative
claim for damages.
FACTUAL MATRIX
3. It appears from the materials on record that the respondents
herein are the original plaintiffs and the appellant herein is the original
defendant in the Suit No. 894 of 1986, pending as on date in the High
Court of Judicature at Bombay on its original side. The said suit has
been instituted seeking specific performance of the agreement dated
08.06.1979. In the alternative, the plaintiffs have also prayed for damages.
The plaintiffs moved the Chamber Summons No. 854 of 2017, inter
alia, seeking enhancement of the amount towards damages on the
grounds, more particularly, set out in the affidavit filed in support of the
said chamber summons.
4. The learned Single Judge of the High Court allowed the chamber
summons referred to above, vide the order dated 11.09.2018, keeping
the issue of limitation open and also permitting the defendant, appellant
herein, to file additional written statement.
5. The appellant herein preferred an appeal against the said order
which came to be dismissed vide the impugned order dated 13.12.2018.
A
B
C
D
E
F
G
H
1133
6. Being aggrieved and dissatisfied with the impugned order passed
by the High Court referred to above, the appellant (original defendant) is
here before this Court with the present appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANT
7. The learned senior counsel appearing for the appellant,
vehemently, submitted that the High Court committed a serious error in
passing the impugned order. He would submit that the High Court
overlooked the order passed by this Court in the Life Insurance
Corporation of India v. Sanjeev Builders Pvt. Ltd. & Ors., (2018) 11
SCC 722 between the same parties, arising from the same suit
proceedings.
8. The learned counsel would submit that the High Court should
not have permitted the plaintiffs to amend the plaint after a period of
thirty-one years, more particularly, when the earlier amendment seeking
to implead the assignee as the plaintiff No. 3 in the suit was declined by
this Court vide the judgment and order dated 24.10.2017 passed in the
Life Insurance Corporation of India (supra).
9. The learned counsel would submit that the High Court failed to
consider that the amendment was hit by the provisions of Order II Rule
2 of the Civil Procedure Code, 1908 (for short, the 'CPC'). He would
submit that the amendment could be said to be even hit by the principle
of constructive res judicata.
10. The learned counsel pointed out that at the time when the suit
came to be instituted, the damages to the tune of Rs. 1,01,00,000/- [Rs.
One Crore & One Lakh only] in the alternative was prayed for. By way
of amendment the damages now prayed for is to the tune of Rs.
4,00,01,00,000/- [Rs. Four Hundred Crore & One Lakh only].
11. In such circumstances referred to above, the learned counsel
appearing for the appellant (original defendant) prayed that there being
merit in his appeal, the same may be allowed and the impugned order
passed by the High Court may be set aside and the original amendment
application filed by the plaintiffs be rejected.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
12. The learned senior counsel appearing for the respondents
herein (original plaintiffs) on the other hand, submitted that no error, not
to speak of any error of law, could be said to have been committed by
LIFE INSURANCE CORPORATION OF INDIA v. SANJEEV
BUILDERS PRIVATE LIMITED & ANR. [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
1134
SUPREME COURT REPORTS
[2022] 8 S.C.R.
the High Court in passing the impugned order. It is submitted that the
question of limitation has been kept open by the High Court that may be
agitated by the defendant in the trial and the defendant has also been
permitted to file its additional written statement.
13. The learned counsel would submit that the suit is yet to be
adjudicated; and in such circumstances, the delay in amending the plaint
for the purpose of enhancing the amount towards damages would not
cause any serious prejudice to the defendant.
14. The learned counsel further submitted that the provisions of
Order II Rule 2 of the CPC cannot be made applicable to an application
seeking amendment of plaint.
15. The learned counsel in the last submitted that the decision of
this Court rendered in the case of Life Insurance Corporation of India
(supra) between the same parties was altogether in a different context.
In the said appeal before this Court, the issue was whether the assignee
could have been impleaded as one of the plaintiffs in the suit after a
period of twenty-seven years from the date of institution of the suit?
16. In such circumstances referred to above, the learned counsel
appearing for the plaintiffs prays that there being no merit in this appeal,
the same may be dismissed with costs.
ANALYSIS
17. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the following questions
of law fall for the consideration of this Court:
1.
Whether the High Court committed any material irregularity
or jurisdictional error going to the root of the matter in passing
the impugned order?
2.
Whether the provisions of Order II Rule 2 CPC can be
made applicable to an amendment application?
3.
Whether the amendment of plaint for the purpose of
enhancing the amount towards damages could be said to
be hit by the doctrine of constructive res judicata?
4.
Whether the judgment and order passed by a coordinate
Bench of this Court in the case of Life Insurance
Corporation of India (supra) between the same parties
has any bearing on the present appeal?
A
B
C
D
E
F
G
H
1135
5.
Whether the present appeal is covered by the proviso to
Section 21(5) and Section 22(2) resply of the Specific Relief
Act, 1963 (47 of 1963) (for short, 'the Act 1963')?
18. Before adverting to the rival contentions canvassed on either
side and before we deal with the orders passed by the High Court
permitting the plaintiffs to amend the plaint with respect to the prayer
clause, let us consider, the laws on the question of allowing or rejecting
a prayer for amendment of the pleadings, more particularly, when the
plea of limitation was taken by one of the parties.
19. It is well settled that the court must be extremely liberal in
granting the prayer for amendment, if the court is of the view that if
such amendment is not allowed, a party, who has prayed for such an
amendment, shall suffer irreparable loss and injury. It is also equally well
settled that there is no absolute rule that in every case where a relief is
barred because of limitation, amendment should not be allowed. 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. In L.J. Leach & Co. Ltd. & Anr. v.
Jardine Skinner & Co., AIR 1957 SC 357, this Court at paragraph 16
of the said decision observed as follows:
"16. It is no doubt true that courts would, as a rule, decline
to allow amendments, if a fresh suit on the amended claim
would be barred by limitation on the date of the application.
But that is a factor to be taken into account in exercise of the
discretion as to whether amendment should be ordered, and
does not affect the power of the court to order it, if that is
required in the interest of justice....."
20. Again in T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity
Board & Ors., (2004) 3 SCC 392, this Court observed as follows:
"2. .....The law as regards permitting amendment to the plaint,
is well settled. In L.J. Leach and Co. Ltd. v. Jardine Skinner
and Co. [AIR 1957 SC 357 : 1957 SCR 438] it was held that
the Court would as a rule decline to allow amendments, if a
fresh suit on the amended claim would be barred by limitation
on the date of the application. But that is a factor to be taken
into account in exercise of the discretion as to whether
amendment should be ordered, and does not affect the power
of the court to order it.
LIFE INSURANCE CORPORATION OF INDIA v. SANJEEV
BUILDERS PRIVATE LIMITED & ANR. [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
1136
SUPREME COURT REPORTS
[2022] 8 S.C.R.
3. It is not disputed that the appellate court has a coextensive
power of the trial court. We find that the discretion exercised
by the High Court in rejecting the plaint was in conformity
with law."
21. So far as the answer to the specific plea that the claim of
damages is barred by limitation and cannot be permitted at this stage is
concerned, it becomes necessary to examine the various judicial
pronouncements of this Court. The principles governing an amendment
which may be permitted even after the expiry of the statutory period of
limitation were laid down by the Privy Council in its judgment in Charan
Das & Ors. v. Amir Khan & Ors., AIR 1921 PC 50. In this case, the
Privy Council laid down the principles thus:
".....That there was full power to make the amendment cannot
be disputed, and though such a power should not as a rule
be exercised where its effect is to take away from a defendant
a legal right which has accrued to him by lapse of time, yet
there are cases: see for example Mohummud Zahoor Ali v.
Rutta Koer, where such considerations are outweighed by the
special circumstances of the case, and their Lordships are
not prepared to differ from the Judicial Commissioner in
thinking that the present case is one."
22. It would be useful to also notice the observations of this Court
in, Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil & 2 Ors.,
1957 SCR 595 : AIR 1957 SC 363, wherein this Court considered an
objection to the amendment on the ground that the same amounted to a
new case and a new cause of action. In this case, this Court laid down
the principles which would govern the exercise of discretion as to whether
the court ought to permit an amendment of the pleadings or not. This
Court approved the observations of Batchelor, J., in the case of Kisandas
Rupchand & Anr. v. Rachappa Vithoba Shilwant and Ors. reported
in ILR (1909) 33 Bom 644, when he laid down the principles thus:
"10. ....."All amendments ought to be allowed which satisfy
the two conditions (a) of not working injustice to the other
side, and (b) of being necessary for the purpose of determining
the real questions in controversy between the parties ... but I
refrain from citing further authorities, as, in my opinion, they
all lay down precisely the same doctrine. That doctrine, as I
A
B
C
D
E
F
G
H
1137
understand it, is that amendments should be refused only
where the other party cannot be placed in the same position
as if the pleading had been originally correct, but the
amendment would cause him an injury which could not be
compensated in costs. It is merely a particular case of this
general rule that where a plaintiff seeks to amend by setting
up a fresh claim in respect of a cause of action which since
the institution of the suit had become barred by limitation, the
amendment must be refused; to allow it would be to cause the
defendant an injury which could not be compensated in costs
by depriving him of a good defence to the claim. The ultimate
test therefore still remains the same : can the amendment be
allowed without injustice to the other side, or can it not?"....."
23. This Court has repeatedly held that the power to allow an
amendment is undoubtedly wide and may be appropriately exercised at
any stage in the interests of justice, notwithstanding the law of limitation.
In this behalf, in Ganga Bai v. Vijay Kumar & Ors., (1974) 2 SCC 393,
this Court held thus:
"22. .....The power to allow an amendment is undoubtedly
wide and may at any stage be appropriately exercised in the
interest of justice, the law of limitation notwithstanding. But
the exercise of such far-reaching discretionary powers is
governed by judicial considerations and wider the discretion,
greater ought to be the care and circumspection on the part
of the Court....."
24. Again in M/s Ganesh Trading Co. v. Moji Ram, (1978) 2
SCC 91, this Court laid down the principles thus:
"4. It is clear from the foregoing summary of the main rules
of pleadings that provisions for the amendment of pleadings,
subject to such terms as to costs and giving of all parties
concerned necessary opportunities to meet exact situations
resulting from amendments, are intended for promoting the
ends of justice and not for defeating them. Even if a party or
its Counsel is inefficient in setting out its case initially the
shortcoming can certainly be removed generally by
appropriate steps taken by a party which must no doubt pay
costs for the inconvenience or expense caused to the other
LIFE INSURANCE CORPORATION OF INDIA v. SANJEEV
BUILDERS PRIVATE LIMITED & ANR. [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
1138
SUPREME COURT REPORTS
[2022] 8 S.C.R.
side from its omissions. The error is not incapable of being
rectified so long as remedial steps do not unjustifiably injure
rights accrued."
25. The principles applicable to the amendments of the plaint are
equally applicable to the amendments of the written statements. The
courts are more generous in allowing the amendment of the written
statement as question of prejudice is less likely to operate in that event.
The defendant has a right to take alternative plea in defense which,
however, is subject to an exception that by the proposed amendment
other side should not be subjected to injustice and that any admission
made in favor of the plaintiff is not withdrawn. All amendments of the
pleadings should be allowed which are necessary for determination of
the real controversies in the suit provided the proposed amendment does
not alter or substitute a new cause of action on the basis of which the
original lis was raised or defense taken. Inconsistent and contradictory
allegations in negation to the admitted position of facts or mutually
destructive allegations of facts should not be allowed to be incorporated
by means of amendment to the pleadings. The proposed amendment
should not cause such prejudice to the other side which cannot be
compensated by costs. No amendment should be allowed which amounts
to or relates in defeating a legal right accruing to the opposite party on
account of lapse of time. The delay in filing the application for amendment
of the pleadings should be properly compensated by costs and error or
mistake which, if not fraudulent, should not be made a ground for rejecting
the application for amendment of plaint or written statement. (See South
Konkan Distilleries & Anr. v. Prabhakar Gajanan Naik & Ors.,
(2008) 14 SCC 632)
26. But undoubtedly, every case and every application for
amendment has to be tested in the applicable facts and circumstances
of the case. As the proposed amendment of the pleadings amounts to
only a different or an additional approach to the same facts, this Court
has repeatedly laid down the principle that such an amendment would
be allowed even after the expiry of statutory period of limitation.
27. In this behalf, in A.K. Gupta & Sons Ltd. v. Damodar Valley
Corporation, AIR 1967 SC 96 : (1966) 1 SCR 796, this Court held thus:
"7. .....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.
A
B
C
D
E
F
G
H
1139
Neale [19 QBD 394].