TMI Blog1978 (1) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... Pleas was that the suit was not maintainable in view of S. 41(h) of the Specific Relief Act, 1963 (Act No. 47 of 1963). The trial court came to the conclusion that since equally efficacious remedy of damages was available to the plaintiff so mandatory injunction could not be granted and since he had not claimed damages this relief was prohibited by sub-section (2) of S. 40 of the Act. The suit was, Therefore, dismissed. 3. The plaintiff filed an appeal. One of the grounds taken in appeal was that the trial court should have afforded an opportunity to amend the plaint to enable the plaintiff to claim damages in the alternative. It was thus prayed, in the alternative, that the plaintiff be granted an opportunity to amend the plaint for cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led on Sept. 17, 1977. The certified copies of the Judgment and decree of the lower appellate court show that these were applied for on April 23, 1977 and the copies were ready on May 7, 1977. Copy of the Judgment of the trial court was applied for on April 25, 1977, and it was ready on July 18, 1977. Apparently the appeal is hopelessly barred by time. 7. The delay is sought to be explained on the ground that the clerk of the lawyer, conducting the case in the lower appellate court, had applied for copies but had misplaced the slips issued by the Copying Agency and these could only be traced on Sept. 7, 1971. The affidavit of this clerk does not disclose any facts and circumstances under which the slips issued by the Copying Agency came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the instant case, as already discussed, not only the clerk has been grossly negligent but the appellant himself has been negligent in not filing the certified copies immediately after these were handed over to him. I am not prepared to rely on the affidavit filed by the clerk since he has not come out with full bets. He has not cared to explain when the- slips issued by the Copying Agency were misplaced by him., what he did in order to find those slips or to take necessary steps in the Copying Agency for obtaining the certified copies by tracing out the numbers of the applications from the records of the Copying Agency. The appellant, who was pursuing the appeal, has not shown what efforts he made to obtain the certified copies from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court has a discretion, the Proviso to sub-section (2) makes it imperative for the court to allow the amendment. It is for that reason that word shall has been used in contradiction to the word 'may' used under O. 6. R. 17. The proviso further shows that howsoever belated the request for amendment may be and even if the claim put forward by way of amendment is hopelessly barred by limitation it is the bounden duty of the court to allow the amendment. 10. The word 'proceeding' is not a term of art. It has to be construed with reference to the context in which it has been used. There is nothing to show that at any stage of the proceeding does not relate to the appeals which may arise out of the suit. It is now well sett ..... X X X X Extracts X X X X X X X X Extracts X X X X
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