Amendment After Evidence Closed: Readiness, Possession and the Proviso to Order VI Rule 17
In a suit for specific performance pending before the Civil Judge (Senior Division), the plaintiff pleads an agreement dated 14.03.2016 for the sale of a house at Rourkela for Rs.22,00,000, of which Rs.5,00,000 was paid, the balance being payable on or before 14.09.2016. The defendant refused to execute the sale deed on 02.07.2019 and the suit was instituted on 29.08.2019. The defendant continues in possession of the house. Issues were framed on 11.01.2021 and the plaintiff's evidence closed on 18.11.2023; the case is now posted for the defendant's arguments. The plaint, drafted by a local pleader, (i) nowhere avers that the plaintiff was ready and willing to perform his part of the contract, (ii) records the agreement date as 14.05.2016 in one paragraph, and (iii) does not claim possession. On 08.01.2025 the plaintiff filed an application under Order VI Rule 17 CPC seeking leave to make all three corrections. The defendant objects that the trial had already commenced and that no explanation for the delay has been offered.
1. Should the court allow the three corrections sought? Apply the proviso to Order VI Rule 17 CPC and Section 16(c) of the Specific Relief Act, 1963.
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The application is really three applications, and they stand on different footings.
1. Correction of the agreement date. Changing 14.05.2016 to 14.03.2016 is the correction of an obvious typographical slip against the agreement already on record. It sets up no new case and causes no prejudice. The proviso to Order VI Rule 17 is aimed at new pleas raised after trial begins, not at removing a clerical error in a document the plaintiff must prove in any event. Leave should be granted.
2. Relief of possession. Section 22(1) of the Specific Relief Act, 1963 allows a plaintiff suing for specific performance to ask for possession, and the proviso to Section 22(2) directs that where such relief has not been claimed the court 'shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just'. That is a special mandate which overrides the general bar in the proviso to Order VI Rule 17. Since the defendant is in possession, the relief is necessary. Leave must be granted.
3. Plea of readiness and willingness. Here the proviso bites. Trial commenced when the plaintiff's first witness was examined; readiness and willingness under Section 16(c) requires both averment and proof, and it is a condition precedent, not a formality. The explanation 'my pleader omitted it' is not due diligence, because the omission stares out of a plaint the plaintiff signed and verified. Leave should ordinarily be refused. Refusal is not automatically fatal: if the evidence already recorded discloses a tender of the balance and continuous willingness, the court must frame an issue and decide whether the conduct satisfies Section 16(c) on evidence.
2. Does Article 54 of the Limitation Act, 1963 bar the suit or the relief of possession?
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Article 54 gives three years from the date fixed for performance, or, where no date is fixed, from the date on which the plaintiff has notice that performance is refused.
Two dates compete here. The refusal was on 02.07.2019 and the suit was filed on 29.08.2019, well within three years of refusal. But a date for performance was fixed, namely 14.09.2016, and on the strict view time runs from the date fixed and cannot be extended by a later refusal. Even on that strict view the suit is in time, because three years from 14.09.2016 expires on 14.09.2019, and the plaint was presented on 29.08.2019. The choice between the two starting points therefore makes no difference to the result, and the suit is within time on either construction.
The relief of possession is not a separate cause of action. It flows from the same contract and is a statutory adjunct under Section 22 of the Specific Relief Act. It is therefore governed by the same Article 54, and an amendment adding it relates back to the date of presentation of the plaint for the purpose of limitation. No fresh limitation runs from the date of the application. The objection on limitation fails.
3. The defendant, after the possession amendment is allowed, applies to reopen the entire trial and to recall every witness already examined. How should the court deal with that application?
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Allowing an amendment is not the same as ordering a fresh trial. The guiding principle is that the amendment must be allowed where it is necessary to decide the real question in controversy, but it cannot be used to protract proceedings or to give a party a second innings on issues that were fully tried (Sampath Kumar v. Ayyakannu; Revajeetu Builders v. Narayanaswamy & Sons).
The court should, therefore, permit the defendant: (a) to file an additional written statement confined to the added relief of possession; (b) to recall the plaintiff, if he so desires, for cross-examination restricted to the possession claim and to the corrected date of the agreement; and (c) to lead evidence, if any, confined to those matters. Costs should be imposed as a condition. The court should not permit re-examination of the defendant's witnesses on issues already tried and closed merely because the plaint has changed; no prejudice is shown on those issues.
Because leave to plead readiness and willingness has been refused, the defendant's recall cannot be used to reopen that question either; it stands or falls on the evidence already recorded. Any further latitude is a matter of discretion under Section 151 CPC, to be exercised only on a showing of genuine prejudice, recorded in writing.