1. Har Sarup, plaintiff, owns agricultural land in Village Mandaoli Fazalpur. Adjoining land is owned by Jagdish and others, defendants. The defendants, while excavating earth from their land, are alleged to have excavated earth from a part of the plaintiffs land and, later on, refused to restore it. The plaintiff filed a suit against the defendants claiming mandatory injunction for restoration of earth.

2. The defendants raised various pleas in defence. One of the pleas was that the suit was not maintainable in view of Section 41(h) of the Specific Relief Act, 1963 (Act No. 47 of 1963). The trial Court come 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 Section 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 claiming damages.

4. The plaintiff also filed an application for amendment of the plaint under order 6 Rule 17 of the Code of Civil Procedure for claiming damages in the alternative. The defendants opposed the application. However, the lower appellate Court allowed amendment of the plaint, set aside the judgment and decree passed by the trial Court, and remitted the case to the trial Court. The defendants have now come up in second appeal.

5. Mr. S.S. Shukla, learned Counsel for the respondent, raised a preliminary objection that the appeal was barred by time.

6. The impugned judgment is dated March 5, 1977. The appeal was filed without a certified copy of the judgment on April 23, 1977. However, an application was made for exemption the appellants from filing certified copies of the impugned judgment as well as the judgment of the trial Court. This Court while admitting the appeal on April 27, 1977, directed the appellants to file certified copies of the judgments within limitation. When the appeal came up for arguments on September 12, 1977 an objection was raised by Mr. Shukla that the appeal was barred by limitation because the appellants had failed to file certified copies. Mr. N.S. Dass Bahl, learned Counsel for the appellants, obtained an adjournment to file them. Thereafter certified copies of the judgment and decree of the lower appellate Court as well as the judgment of the trial Court were filed on September 12, 1977. Application (C.M. No. 1655 of 1977) for condonation of delay was filed on September 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 September 7, 1977. The affidavit of this clerk does not disclose any facts and circumstances under which the slips issued by the Copying Agency came to be misplaced and were, later on, found. Obviously the affidavit does not disclose the truth. Moreover, admittedly the copies were obtained on September 7, 1977 when these were handed over by the clerk to Ramesh Chand Appellant who is stated to be pursuing the appeal. But these were not immediately filed. The only reason for his not filing the copies is stated to be that the case was not listed on 8th and 9th instant, and being a government servant he could not contact the Advocate for giving the certified copies. In case this appellant was pursuing the case he knew that the case had-been adjourned to September 20, 1977 at the request of his Counsel to enable the appellants to file certified copies. In these circumstances there was no reason for him not to file the copies immediately on September 8, 1977. It is now well-settled that each days delay has to be explained. I find that the appellants have failed to satisfy me that they had sufficient cause for not filing the copies within time.

8. Mr. Bahl cites Kuldip Singh v. Krishan Kumar and others, 9 (1973) DLT 250=ILR, (1973) II Delhi 100 and contends that the appellants should not suffer for the mistake of the clerk of the Counsel. It was held in this case that for the mistake of the Counsel or his clerk a party cannot be made to suffer when no negligence, nor inaction, nor want of bona fide is imputable to a party. In other words, in appropriate cases the mistake of a Counsel or his clerk can be justifiably taken into consideration for condoning the delay. 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 by the clerk since he has not come out with full facts. 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 clerk since he knew that the copies had to be filed within limitation. The appellant cannot draw any advantage from his own negligence as well as form the gross negligence of the clerk of his lawyer.

9. Even on merits the appeal must fail. Mr. N.S. Dass Bahl contends that the amendment could not have been allowed in terms of proviso to Section 40(2) of the Specific Relief Act, 1963. At this stage Section 40 of the Specific Relief Act may be reproduced with advantage:

40 (1) The plaintiff in a suit for perpetual injunction under Section 38, or mendatory injunction under Section 39, may claim damages either in addition to, or in substitution for, such injunction and the Court may, if it thinks fit, award such damages.

(2) No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint:

Provided that where no such damages have been claimed in the plaint, the Court shall, at any stage of the proceeding, allow the plaintiff to amend the plaint on such terms as may be just for including such claim.

(3) The dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for such breach.

10. Mr. Bhal argued that the use of the word proceeding in the proviso to Sub-section (2) shows that the amendment could have been asked for only during the pendency of the suit and could not be granted while the appeal was pending. Whereas under Order 6, Rule 17 of the Code of Civil Procedure the Court has discretation, the proviso to Sub-section (2) makes it imperative for the Court to allow the amendment. It is for that reason that the word shall has been used in contradiction to the word may used under Order 6, Rule 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 limitation, it is the bounded duty of the Court to allow the amendment.

11. The word proceeding is a term of Article 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-settled that an appeal is a continuation of the suit. Wherever an appeal lies against any decree and an appeal is filed according to law, the finality of the decree of the trial Court comes to an end. Thereafter it is the decree and judgment of the appellate Court which will replace the decree and judgment of the trial Court.

12.The Bombay High Court in Ratanchand, Shrichand v. Harmantrare Shivleakas, 6 Bom. HCR 166, held: a suit is a judicial proceeding, and the proceeding must be taken to include all the proceedings in the suit from the date of its institution to its final disposal and therefore to include proceedings in appeal. Again the same High Court in Pandarinath Kikalal v. Thakoredas Shankardas, 31 Bom. LR 484, observed: A suit and all appeals made therein are to be regarded as one legal proceedings.

13. Therefore, Mr. Bahl is not correct in saying that the amendment can be asked for only before the suit is disposed of by the trial Court.

14.I find that a Division Bench of the Madras High Court in V. R. Nathan v. Mac. Laboratories (P) Ltd. AIR 1975 Madras 189, allowed the amendment which was asked for the first time during the pendency of the appeal. Before the High Court against the decree of the trial Court dismissing the suit. The Court held: In view of the imperative language of the proviso which requires that the Court shall grant the amendment the plaintiff is entitled, as a matter of right, to have these amendments made and the only discretion left for the Court is about the terms, if any, on which he may be permitted to amend. All the pleas opposing the amendment on the ground that it was very much belated and was lacking in bona fides etc. were held to be futile in view of the proviso to Sub-section (2) of Section 40 of the Specific Relief Act.

15. The result is that the appeal is dismissed. The parties, however. directed to bear their own costs.