TMI Blog2012 (1) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... the tenders was fixed as 05.09.1985. On 13.09.1985, the sealed tenders were opened and Gattu Mahesh-Respondent No. 1 herein and Kotha Mohan-Respondent No. 2 herein, Managing Partners in M/s Jagath Swapna Company put tenders for an amount of ₹ 24,55,569/- along with a DD for an amount of ₹ 2,45,556/- which is 10% of the EMD. They being the highest bidders, their tenders were accepted. b) The contract for sale of property was entered into between the Respondent Nos. 1 and 2 herein with Karimnagar Diocese on 27.09.1985. It was mentioned in the contract that Karimnagar Diocese agreed to receive ₹ 2,50,000/- on or before 08.11.1985 because the land under sale was under dispute and the balance amount was to the paid by the Respondents herein only after getting final dropping of the land acquisition proposal by the Municipality, Jagtial and sanction of layout by the Municipality, Jagtial. On 03.04.2003, Respondent Nos. 1 and 2 herein issued a legal notice to Karimnagar Diocese informing that the land acquisition proceedings were dropped on 05.05.1986 and the sanction of layout by the Municipality, Jagtial was completed on 28.12.1989 and to execute and register the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 17. After filing written statement by the contesting Defendants, the trial of the suit commenced and admittedly both parties adduced the evidence on their behalf and arguments on behalf of both the sides were heard and completed on 22.09.2010. On that day, the Court reserved the matter for orders. Meanwhile, on 24.09.2010, the Respondents herein filed a petition praying for amendment of the plaint. In support of the said application, Plaintiff No. 2 has filed an affidavit stating that in para 11of the plaint he has stated about the legal notice issued on 03.04.2003 to Defendant Nos. 1 to 7 for specific performance of agreement of sale dated 27.09.1985 and there was no reply for it. In para 3 of the affidavit, the deponent has stated that by type mistake, the following sentences have missed. After para 11 of the plaint, the following para 12 may be added. 'We are and has been and still is ready and willing specifically to perform the agreement of sale dated 27.09.1985 on our part of which the Defendants have, had noticed. I am ready with the balance amount as per agreement of sale dated 27.09.1985. I submit the para Nos. 12-18 of the plaint may be changed as 13 to 19.' The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1999. Section 16 of the Amendment Act reads as under: 16. Amendment of Order 6 - In the First Schedule, in Order 6,-- *** (iii) Rules 17 and 18 shall be omitted. After stiff resistance by the litigants and the members of the bar, again Order VI Rule 17 was re-introduced with proviso appended therein. As per the said proviso, no application for amendment shall be allowed after the trial has commenced. However, there is an exception to the said rule, i.e., if the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial, such application for amendment may be allowed. 9. Before proceeding further, it is also useful to refer Section 16(c) of Specific Relief Act which reads as under: 16. Personal bars to relief.- Specific performance of a contract cannot be enforced in favour of a person- (a) xxx (b) xxx (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the Defendant. Explanat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that power once the trial has commenced. Unless the Court satisfies that there is a reasonable cause for allowing the amendment normally the court has to reject such request. An argument was advanced that since in the legal notice sent before filing of the suit, there is reference to readiness and willingness and the Plaintiff has also led in evidence, nothing precluded the court from entertaining the said application with which we are unable to accept in the light of Section 16(c) of the Specific Relief Act as well as proviso to Order VI Rule 17. The only reason stated so in the form of an affidavit is omission by 'type mistake'. Admittedly, it is not an omission to mention a word or an arithmetical number. The omission is with reference to specific plea which is mandated in terms of Section 16(c) of the Specific Relief Act. 12. The primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who prepared the plaint, signed and verified the plaint showed some attention, this omission could have been noticed and rectified there itself. In such circumstances, it cannot be construed that due diligence was adhered to and in any event, omission of mandatory requirement running into 3 to 4 sentences cannot be a typographical error as claimed by the Plaintiffs. All these aspects have been rightly considered and concluded by the trial court and the High Court has committed an error in accepting the explanation that it was a typographical error to mention and it was an accidental slip. Though the Counsel for the Appellants have cited many decisions, on perusal, we are of the view that some of those cases have been decided prior to the insertion of Order VI Rule 17 with proviso or on the peculiar facts of that case. This Court in various decisions upheld the power that in deserving cases, the Court can allow delayed amendment by compensating the other side by awarding costs. The entire object of the amendment to Order VI Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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