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1996 DIGILAW 1071 (RAJ)

Harmander Singh v. Ami Chand

1996-09-20

P.C.JAIN

body1996
JUDGMENT 1. - The plaintiff petitioner has filed this petition under section 115, CPC against the order dated 22.8.1996 of the learned Addl. District Judge No. 2, Hanumangarh in Civil Suit No. 25/96 whereby the application filed by the plaintiff u/O. 6 R. 17 CPC was dismissed. 2. The plaintiff filed a suit for specific performance in the trial Court against the defendant on the basis of an agreement dated 12.5.1988. The plaintiff in Para 2 Kh has described the land of which the possession was delivered to him in pursuance of the above agreement to sale. 3. By moving an application u /O. 6 R. 17 the plaintiff petitioner wants that possession of the land of Khasra No. 230/365 Kila Nos. 2, 3,4, 8, 9, 13, 18 & 23 be delivered to him. Learned Addl. district Judge dismissed the above application on the ground that the plaintiff wants to introduce facts which are not relevant and also inconsistent with the recitals made in the agreement to sale. 4. I have heard the learned counsel for the petitioner. The learned counsel has submitted that by the above application plaintiff wants to clarify the possession of the land which was handed over to him by the defendant though recited differently in the agreement to sale. It will not prejudice the defendant and will not even delay the trial of the suit. 5. I have considered the arguments and perused the application. It may be stated that normally while interpreting the provisions of 0. 6 R. 17, CPC, the Court liberally grants amendment if the necessary conditions for allowing such amendments are fulfilled. The foremost contention is that the amendment is necessary for the purpose of determining the real question in controversy in the suit. The provisions of the Code, therefore, allowed a wide discretion to the Court in the matter of amendment of pleadings. However, the above discussion must be exercised in the light of settled principles of law in this regard. An amendment of the pleading will be refused if it is not necessary for the purpose of determining the real question in controversy or where the amendment has the effect of introducing a totally different and inconsistent new case. 6. However, the above discussion must be exercised in the light of settled principles of law in this regard. An amendment of the pleading will be refused if it is not necessary for the purpose of determining the real question in controversy or where the amendment has the effect of introducing a totally different and inconsistent new case. 6. In the present case, the plaintiff wants to aver that although in the agreement to sale a recital was made regarding delivery of possession of the land described therein, possession was in fact delivered of the land described in the application for amendment. The above amendment would definitely contradict the recital made in the agreement to sale which is the basis of suit of the plaintiff and it would also give rise to a new cause of action. Hence, the trial Court has not committed any jurisdictional error in dismissing the application of the plaintiff. 7. There is no force in the petition and it is hereby dismissed. 0 0Revision dismissed. *******