The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 40 of 2024 [An application under Article 227 of the Constitution of India] Bandana Mangaraj …. Petitioner -Versus- The Archdiocese of Cuttack- Bhubaneswar and another ….. Opp. Parties Advocate(s) appeared in this case: For Petitioner : M/s. Soumya Mishra, A. Agarwal, B. Behera, G.N. Parida, Advocates. For Opp.Parties : None _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 28th November, 2025 SASHIKANTA MISHRA, J. The petitioner is the plaintiff in C.S. No. 89 of 2011 pending in the Court of learned Senior Civil Judge (L.R.), Bhubaneswar. In the present application filed under Article 227 of the Constitution of India, she questions the Page 1 of 13 correctness of order dated 20.11.2023 passed by the Court below in rejecting her prayer for amendment of the plaint in so far as the same relates to the relief of grant of compensation for breach of contract in terms of Section 21 of the Specific Relief Act. 2.
Legal Reasoning
The facts of the case are that the suit property was originally recorded in the name of defendant No.1, who intended to sell the same. The plaintiff having agreed to purchase the land, an agreement for sale was executed between them on 02.03.2010 for a consideration of Rs.3,50,00,000/-. The plaintiff paid Rs.25,00,000/- as part consideration and agreed to pay the remaining Rs.3,25,00,000/- within three months. The sale deed was to be executed by defendant No.1 in favour of the plaintiff upon receiving full consideration by 05.06.2010. The plaintiff was however, informed that one Basanti Maharana had filed a Civil Suit being C.S. No.435 of 2010 involving the self-same property and accordingly she was requested to wait till disposal of the suit. The plaintiff also sought for Page 2 of 13 intervention in the aforementioned suit and always expressed her readiness to fulfill her part of the contract. The defendant No.1 avoided to receive the balance consideration citing pendency of the other suit as a reason. Ultimately, on 17.07.2010, the plaintiff received a letter from defendant No.1 stating that the agreement had lost its force due to non-payment of balance consideration amount within the stipulated period and hence no sale deed could be executed. The other suit filed by Basanti Maharana was withdrawn on 09.08.2010 and on the same day, the plaintiff’s application for intervention therein was also rejected. The plaintiff further came to know that defendant No.1 had clandestinely sold the land to defendant No.2 and that the other suit was a collusive one. Since clause-5 of the agreement barred any kind of transfer of the scheduled property, the plaintiff claims that the sale deed so executed by defendant No.1 in favour of defendant No.2 is an outcome of fraud and hence void. Hence, the plaintiff filed the suit for specific performance. Page 3 of 13 3. During pendency of the suit, the plaintiff filed an application for amendment of the plaint under Section 21(5) of the Specific Relief Act to include the relief seeking compensation. It is to be noted that some other amendments were proposed. The Court below, in the order impugned allowed only a part of the amendment but rejected the main amendment sought for to include the claim for compensation mainly on the ground that the same was not based on facts existing at the time of alleged breach of contract, the grounds for which could not be established by the plaintiff. Being thus aggrieved, the plaintiff has approached this Court. 4. Despite valid service of notice there was no appearance from the side of the defendant-opposite parties. 5.
Legal Reasoning
Heard Mr. S. Mishra, learned counsel for the petitioner. 6. Mr. Mishra would argue that as per Section 21 of the Specific Relief Act, 1968 the Court has power to award compensation but Sub-Section (5) provides that no Page 4 of 13 compensation shall be awarded unless the plaintiff has claimed the same in the plaint. The proviso to the sub- section provides that the plaintiff can be allowed to amend the plaint at any stage to claim compensation. The Court below, according to Mr. Mishra, has not properly appreciated the legislative intent behind the aforementioned provision and rejected the prayer for amendment on untenable grounds. To support his contention, Mr. Mishra has cited a judgment of the Supreme Court of India in the case of Life Insurance Corporation of India vs. Sanjeev Builders Pvt. Ltd.1. 7. Reference to the pleadings would reveal that the plaintiff filed the suit originally claiming the following relief: “The plaintiff therefore humbly prays that this Hon’ble Court may be graciously pleased to pass a decree in her favour: a) Directing Defendant no.1 to execute and register a sale deed in favour of the plaintiff in respect of the suit schedule lands by accepting the remaining sale consideration amount the amount already received by the Defendant no. 1. i.e. deducting 1 2022 LiveLaw (SC) 729 Page 5 of 13 (b) Directing the Defendant No.1 to execute and register the sale deed in the stipulated time failing which the sale deed be executed by the Court in accordance with the provisions of order 21 Rule 34(4) of the Code of Civil Procedure. (c) To declare that the sale deed dt.19.7.2010 executed in favour of Defendant no.2 is a nullity in the eye of law and has conferred no right, title and interest over Defendant No.2. (d) To direct Defendants to deliver possession of the suit schedule lands to the plaintiff and if they fail to do so possession may be delivered to the plaintiff through Court. (e) Grant cost of the suit and as such to pass such other order(s)/ direction(s) as this Hon’ble Court deems facts and fit and proper circumstances of the case.” the in 8. In the petition for amendment filed on 18.11.2022, the reason for seeking the amendment is stated in the following words: “1. That during pendency of the suit due to changes in the circumstances of the case and changes of nature and character of the suit properties by raising massive construction of multistoreyed apartment by defendants over suit land and after completion of constructions have deliberately transferred the flats of the said apartments to the customers for considerations and have put each purchaser in possession of respective flats of the apartments during pendency of the suit, without taking permission of the court, for no fault of the plaintiff the contract may become incapable of specific performance by the court, the Page 6 of 13 plaintiff has to amend the plaint in addition to the existing relief compelled to seek an alternate relief for awarding compensation claimed in this plaint in deduction of balance amount of consideration to be paid to defendantsNo.1 (one). Therefore the facts leading to be to claim compensation are incorporated in the body of the plaint with a schedule of details about claim of compensation to be added after existing schedule along with addition of appropriate relief in the plaint. There are some minor typographical mistakes in plaint which need to be amended for just decision of case.” 9. In the original plaint, the plaintiff had not claimed any compensation. Section 21 of the Specific Relief Act permits a plaintiff to claim compensation for breach of the contract in addition to claiming its performance. Sub- Section (5) specifically debars the Court from granting any compensation unless the plaintiff has claimed the same in his plaint. Thus, ordinarily the plaintiff in the present case not having claimed compensation in the original plaint, no compensation can be granted by the Court. However, the statute has allowed a rider that even if the plaintiff has not claimed any such compensation, the Court may, at any stage of the proceeding allow him to amend the plaint. For reference, Section 21 is reproduced below: Page 7 of 13 “21. Power to award compensation in certain cases.—(1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach 1 [in addition to] such performance. (2) If, in any such suit, the court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly. (3) If, in any such suit, the court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly. (4) In determining the amount of any compensation awarded under this section, the court shall be guided by the principles specified in section 73 of the Indian Contract Act, 1872 (9 of 1872). (5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint: Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation. Explanation.—The circumstances that the contract has become incapable of specific performance does not preclude the jurisdiction conferred by this section.” from exercising the court 10. Thus, there is no legal bar for the plaintiff to claim compensation in addition to the relief claimed for granting performance of the contract. In the case of Life Insurance Corporation of India (supra), the Supreme Page 8 of 13 Court has referred to the amended provision of Section 21 of the Specific Relief Act and held as follows: “65. However, the argument of the learned counsel appearing for the appellant in regard to the two provisos referred to above, is quite curious. The argument is that the power of the court to permit the plaintiff to amend the plaint in a suit filed for the specific performance of contract flows from Sections 21 and 22 resply of the Act, 1963 & the proviso to the sub-section (5) of Section 21 of the Act 1963 may entitle the plaintiff to amend the plaint, provided the plaintiff has inadvertently or otherwise omitted to pray for compensation. The argument proceeds on the footing that in the present case, as the plaintiff specifically prayed for compensation in the plaint, later if he seeks to amend that part of the relief, the subsection (5) of Section 21 of the Act 1963 would be an embargo for the court to do so. We do not find any merit in this argument of the learned counsel appearing for the appellant. 66. The two provisos referred to above, 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 in controversy between the parties. It is pertinent to note that this provision which empowers its discretion 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 to permit a party the real question the court in Page 9 of 13 that a suit aware of this power of the court to permit amendment of pleadings. Therefore, it cannot be successfully urged 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.” 11. Thus, the settled position of law is that the legislature in its wisdom has granted such liberty to the plaintiff to claim compensation by way of amendment at any stage of the proceeding. Obviously, the proviso is an answer to the bar created by Sub-Section (5) which lays down that no compensation can be granted unless the same is specifically claimed. Further, the original expression ‘either in addition to or in substitution of’ were deleted by amendment of the statute in 2018 and substituted by ‘in addition to’. This is very significant because it grants liberty to the plaintiff to claim compensation along with specific performance. The plaintiff has not given up her claim for specific performance to Page 10 of 13 claim compensation but additionally claims compensation as per liberty granted by the Statute. 12. Coming to the impugned order, this Court finds that the Court below appears to have been swayed away by the principle that compensation to be claimed in a suit for specific performance must be the damage or loss suffered by the plaintiff as on the date of breach of contract. The Court below thereafter proceeded to examine the date of the agreement and the date of filing of the suit with some disapproval of the fact that the suit was filed about seven months after the alleged breach of contract. Moreover, reference has been made to construction of flats and alienation carried out by defendant No.1 between 2013 to 2019 to again note with disapproval that the plaintiff had not sought for any amendment earlier. The Court below has also found fault with the plaintiff for not producing any documents of such sale or construction of 66 nos. of flats and therefore, held that the petition for amendment was filed with malafide intention. Page 11 of 13 13. In view of what has been stated hereinbefore, this Court fails to understand the basis for it the Court below take such a strong view. Whether the claim for compensation subsequently put forth is liable to be granted or not is a matter for trial and would depend on the evidence to be adduced by the plaintiff. But to reject the amendment at the threshold by implicitly holding that the compensation claimed is not for any damage or loss suffered by the plaintiff as on the date of breach of contract would tantamount to putting the cart before the horse. Careful reading of the impugned order suggests that the Court below has proceeded entirely on an erroneous notion and without properly appreciating the legislative intent behind Section 21 (5) and its proviso. Reference to Section 73 of the Contract Act also appears to be entirely
Decision
redundant. The impugned order is therefore, unsustainable in the eye of law. 14. For the foregoing reasons therefore, this Court is persuaded to interfere with the impugned order. Page 12 of 13 Resultantly, the CMP is allowed. The impugned order is set aside. The Court below is directed to allow the amendment sought for by the plaintiff as per terms and conditions to be specified by it. Necessary orders shall be passed in this regard within two weeks from the date of production of certified copy of this order by the petitioner. The suit being of the year 2011, the trial Court shall make all endeavour to dispose of the same as early as possible, preferably within eight months from today. ………….……………... Sashikanta Mishra, Judge Orissa High Court, Cuttack The 28th November, 2025/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: P.A. Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2025 12:59:01 Page 13 of 13