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1984 DIGILAW 33 (PAT)

Ram Avtar Sharma v. Jagdish Ram

1984-01-17

S.K.CHOUDHURI

body1984
Judgment 1. This revision by the plaintiff under S.115 of the Civil P. C. is directed against an order dated 27-1-1983 passed by the 1st Munsif, Chapra, in Title Suit No. 37/1969, rejecting the amendment petition of the plaintiff. 2. The plaintiff-petitioner filed a suit for specific performance of the contract on the basis of a Mahadanama dated 9-5-1968. Originally there were five defendants in the suit. One Smt. Vindhyachali Devi purchased the disputed property sometime in the year 1976 and, accordingly, sometime in the year 1980, she has been added as a party defendant No. 6. It is unfortunate that, though the suit is of the year 1969, for some reason or the other, the suit has not yet become ready for hearing. After defendant No. 6 was added and she filed written statement, a petition was filed by the plaintiff on 23-4-1981 for amendment of the plaint. By this petition the plaintiff-petitioner prayed to add the following sentence at the end of para No. 16 of the plaint : "That the plaintiff has been and is still ready and willing and will remain in future to give the balance consideration money and to get the sale deed executed and registered in respect of the suit lands from the defendant and is always coming ready with amount tendering it to the defendants." Para No. 16 of the plaint reads as follows : "That the plaintiffs are willing to perform their own part of the contract since the very beginning but the defendants being in collusion with Jadunandan Ram and some other persons hostile to the plaintiffs are bent upon flouting the contract as a result of which the plaintiffs apprehend a serious injury to their rights." 3. A rejoinder to this application was filed by defendant No. 6, who is opposite party No. 6 in this revision application, contesting the said petition. Both the parties were heard in the amendment matter and thereafter the impugned order has been passed rejecting the amendment petition. From the impugned order it appears that the Court below was of the view that if the amendment is allowed, then the defendant would be deprived of a valuable right which has accrued to him. 4. Mr. Both the parties were heard in the amendment matter and thereafter the impugned order has been passed rejecting the amendment petition. From the impugned order it appears that the Court below was of the view that if the amendment is allowed, then the defendant would be deprived of a valuable right which has accrued to him. 4. Mr. Shashi Shekhar Dwivedi, learned counsel for the petitioner, contended that the court below acted with material irregularity in refusing to allow the amendment petition though cause of action has been pleaded in para 16 of the plaint. According to the learned counsel for the petitioner, there has been some omission made while pleading cause of action in para 16 of the plaint. To appreciate the argument of the learned counsel for the petitioner, the averment in para 16 has already been quoted above and also the proposed amendment sought for. Mr. Sudanu Prasad Sinha, learned counsel appearing for opposite party No. 6, who is defendant No. 6 in the Court below, on the other hand, supported the impugned order and contended that there was no pleading with regard to the cause of action and, therefore, the Court below has rightly rejected the amendment petition. The learned counsel appearing for opposite party No. 6, in support of his contention, cited the decision in the case of Mahmood Khan V/s. Ayub Khan, AIR 1978 All 463 . On reading the said decision carefully, it appears that it was a case of complete absence of averment of the cause of action in the pleadings and in the appellate stage they wanted to rectify the mistake by introduction of a cause of action in the plaint. Para 16 of that judgment refers to the case of Prem Raj V/s. D. L. F. Housing and Construction (Pvt.) Ltd., AIR 1968 SC 1355 . The relevant portion quoted therein from the Supreme Court decision may be read here also (Para 5) : "There is also another reason for holding that the appellant has made out no cause of action with regard to the relief of specific performance of the contract. It is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract. In the present case no such averment is made in the plaint. It is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract. In the present case no such averment is made in the plaint. On the other hand, the plaintiff has alleged that the agreement was a result of fraud and undue influence and was not binding upon him. For these reasons it must be held that so far as the relief of specific performance is concerned, the plaintiff has no cause of action." In para 20 of the Allahabad decision it has further been said that "in the absence of an averment in the plaint that the plaintiff was ready and willing to perform his part of the contract, there was no cause of action for the suit. There may be a defect in the cause of action as mentioned in the plaint, but there may be a case where there is no cause of action in the plaint. If there is a defect in the cause of action, the amendment may be allowed to rectify it, but if there is no cause of action, no amendment should be allowed to bring a cause of action. In the absence of a cause of action, the plaint must be rejected." 5. After discussing the Supreme Court decision, the Hon"ble Judge of the Allahabad High Court has further stated that "In the instant case, as shown above, the plaintiff by omitting to aver in the plaint that he was ready and willing to perform his part of the contract, omitted to show the cause of action and, therefore, to allow such an amendment would be to allow the plaintiff to bring a cause of action in the suit by such amendment which should not be done in view of the observations made by the Supreme Court in the case cited above." 6. In view of what has been said in the aforesaid Allahabad and Supreme Court decisions it will be difficult to appreciate the argument advanced by the learned counsel for opposite party No. 6. It has already been averred in the plaint that the plaintiffs are ready and willing to perform their own part of the contract since the very beginning and at the end of para 16 the plaintiffs want to add the proposed amendment. It has already been averred in the plaint that the plaintiffs are ready and willing to perform their own part of the contract since the very beginning and at the end of para 16 the plaintiffs want to add the proposed amendment. It cannot be said that there was no averment of cause of action in the plaint and it is a case of complete absence of pleadings regarding cause of action. 7. The other case which was cited is a single Judge decision of this Court in the case of Ram Singhasan Choubey V/s. Sudama Prasad Sah, 1982 BLJR 389 : (AIR 1982 Patna 200). There also it will be found that there was no pleading of cause of action in the original plaint and it was intended by amendment to insert a cause of action which is not pleaded at all. It was under those circumstances, after referring to the aforesaid Allahabad decision, that the learned single Judge held that the amendment ought not to have been allowed. 8. In view of the discussions made above, it is difficult to uphold the impugned order of the Court below. 9. Another argument which the learned counsel for the opposite party has advanced is that there has been great delay in filing the present application. It has already been pointed out above that defendant No. 6 who is contesting this revision application has been added sometime in the year 1980 as she purchased the suit property during the pendency of the suit. The present application for amendment was filed on 23-4-1981. The suit is also not ready for hearing as yet. In the circumstance it is difficult to say that there has been great delay in filing the amendment petition. 10. For the reasons stated above, this application has merit and it is, accordingly, allowed and the impugned order is set aside. Let the amendment now be incorporated in the plaint. This order is, however, subject to payment of cost of Rs. 200.00 (Rupees two hundred) to Mr. Arun Kumar Singh No. 2, Junior Counsel, who has appeared with Mr. Sudanu Prasad Sinha, Advocate, within three weeks from today.