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2000 DIGILAW 662 (PNJ)

Sarvo v. Sunil Dewan

2000-07-05

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. (Oral) - This is a civil revision and has been directed against the order dated 23.2.1999 passed by Addl. District Judge, Ambala, who by allowing the application under Order 6 Rule 17 C.P.C. at the appellate stage remanded the suit to the trial Court with the direction to entertain the amended plaint and then to dispose of the suit according to law. While allowing the said application of the plaintiff (now respondent) the first Appellate Court also awarded a sum of Rs. 4,000/- as costs to the defendants. 2. The brief facts of the case are that Sunil Dewan filed a suit for permanent injunction against Smt. Sarvo Devi and others restraining defendants No. 1 to 5 from alienating/transferring or creating any charge of whatsoever nature in Plot No. 390, measuring 209 square yards, situated in Sector 12, Panchkula, District Ambala and from interfering into his lawful and peaceful possession and for mandatory injunction against defendant No. 6 directing him to transfer the plot in question in his name as applied for by defendant No. 7, who is a registered Power of Attorney of defendants No. 1 to 5. It was the case of the plaintiff that one Kekar Singh Kaushal was the allottee of the suit property and he died on 27.10.1985. The suit property was inherited by his wife, sons and daughters i.e. defendants No. 1 to 5. Defendant No. 1 sought the permission of Guardian Judge, Ambala and she was granted permission to sell the suit property vide order dated 18.7.1989. Thereafter defendant No. 1 for herself and on behalf of defendants No. 2 to 5 entered into an agreement to sell the suit property to the plaintiff through her registered Special Power of Attorney Shri Ved Parkash for a sale consideration of Rs. 50,000/- vide agreement dated 2.12.1989. A sum of Rs. 10,000/- was paid as earnest money and later on the balance money was paid as full and final payment at the time of registration of the agreement before the Sub Registrar. The possession was also delivered to the plaintiff. According to the plaintiff, defendant No. 1 also executed one registered General Power of Attorney (irrecoverable) (irrevokable ?) in favour of defendant No. 7 Smt. Pushpa Dewan, who is the mother of plaintiff, indemnity bond, affidavit and other necessary documents for the transfer of the plot. The possession was also delivered to the plaintiff. According to the plaintiff, defendant No. 1 also executed one registered General Power of Attorney (irrecoverable) (irrevokable ?) in favour of defendant No. 7 Smt. Pushpa Dewan, who is the mother of plaintiff, indemnity bond, affidavit and other necessary documents for the transfer of the plot. By passing the entire sale consideration and delivery of possession, the sale of the plot stood completed except the formal part or the transfer in the record of defendant No. 6. The plaintiff alleges that defendant No. 1 has become dishonest and threatened to revoke the Power of Attorney in favour of defendant No. 7 and is trying to dispose of the property through the services of S.K. Vohra, property dealer. The plaintiff after purchasing the said plot from defendants No. 1 to 5 entered into an agreement to sell the same to the said property dealer for a sale consideration of Rs. 4 lacs, but S.K. Vohra fraudulently filled in the form of agreement to sell a sum of Rs. 1,50,000/- against the settled price of Rs. 4 lacs and in this regard a civil suit is pending differently. 3. The suit was contested by defendants No. 1 to 5 and they have taken the objections such as that the suit of the plaintiff was not legally maintainable; that the plaintiff has got an equally efficacious remedy to file a suit for specific performance of the contract; that Ved defendant No. 1 entered into an agreement through M/s. K.S. Suri and Company in the year 1987 with somebody else and received a sum of Rs. 10,000/- as earnest money. Thereafter K.S. Suri colluded with plaintiff, defendant No. 7 and Ved Parkash and got prepared the alleged Special Power of Attorney in favour of Ved Parkash and also a registered Power of Attorney in favour of defendant No. 7. The case set up by the defendant No. 1 further is that she has come to know that Ved Parkash had got prepared a registered Power of Attorney in his favour in collusion with S.K. Suri and had cancelled the Special Power of Attorney on 31.3.1993. It was also the stand of defendants No. 1 to 5 that nothing was paid by the plaintiff and she never delivered the possession of the property in question to the plaintiff. 4. It was also the stand of defendants No. 1 to 5 that nothing was paid by the plaintiff and she never delivered the possession of the property in question to the plaintiff. 4. A re-joinder was filed by the plaintiff in which he reiterated his allegations made in the plaint by denying those of the written statement. 5. The learned trial court framed the following issues for disposing of the suit : 1. Whether the defendant No. 1 in her personal capacity and on behalf of defendant Nos. 2 to 5 sold the disputed plot to the plaintiff vide agreement dated 21.12.1989 ? If so, its effect ? OPP 2. If issue No. 1 is proved in affirmative, whether the plaintiff has become owner in possession of disputed plot ? OPP 3. If both the above issues are proved in affirmative, whether the plaintiff is entitled to the decree for permanent injunction, as prayed for ? OPP 4. Whether the suit is not maintainable in the present form ? OPD 5. Whether the plaintiff has no cause of action and locus standi to file the present suit ? OPD 6. Relief. The parties led oral as well as documentary evidence in support of their respective cases and vide judgment and decree dated 18.3.1998 the suit of the plaintiff was dismissed by holding that the remedy open to the plaintiff was to file a suit for possession by way of specific performance and that in view of the efficacious remedy available to the plaintiff, the suit was not legally maintainable. 6. Aggrieved by the judgment and decree of the trial court, the plaintiff filed the first appeal in the Court of Addl. District Judge, Ambala and during the pendency of the appeal he filed an application under Order 6 Rule 17 C.P.C. and wanted to take the additional plea regarding the relief of specific performance. The application was opposed vehemently by the defendants (now petitioners). After hearing the submissions raised by the learned counsel for the parties, the learned Addl. District Judge, Ambala vide impugned order dated 23.2.1999 allowed the application for the reasons given in paras 10 to 14 of the order and remanded the case as stated above. Aggrieved by the order of the learned Addl. District Judge, the present revision which I am disposing of with the assistance rendered by Mr. District Judge, Ambala vide impugned order dated 23.2.1999 allowed the application for the reasons given in paras 10 to 14 of the order and remanded the case as stated above. Aggrieved by the order of the learned Addl. District Judge, the present revision which I am disposing of with the assistance rendered by Mr. R.D. Bawa, Advocate, on behalf of the petitioners, Mr. S.S. Narula, who appeared on behalf of respondent No. 1 and Mr. Vikas Kumar, who appeared on behalf of respondent No. 3. 7. Before I deal with the submissions raised by the counsel for the parties, it will be useful for me to incorporate paras 10 to 14 of the impugned order, which read as under :- "10. The law for the amendment of the pleadings as contained in Order 6 Rule 17 of the Code of Civil Procedure is very clear and elaborate. The court can, at any stage of the proceedings, allow the parties to amend the pleadings as are necessary for the purpose of determining the real controversies between the parties. The learned counsel for the defendants vehemently argued that time limitation for enforcing specific performance is three years which has already expired. Therefore, the amendment can not be allowed. The agreement is dated 21.12.1989. According to the learned counsel the amendment cannot be allowed after the lapse of three years. He referred to Muni Lal v. Oriental Fire and General Insurance Co. Ltd., 1996(1) R.R.R. 418 and T.L. Muddukrishna v. Smt. Lalitha Ramachandra Rao, 1997(2) R.C.R. (Civil) 154. The first authority is entirely on a different footing. The plaintiff had prayed for declaratory relief without consequential relief. He had asked for declaration that he is entitled to the payment for loss of truck in terms of contract but not consequential relief of payment of quantified amount. It was held that the relief stood barred by limitation and the amendment cannot be allowed. In the second case, the agreement was 16.3.1989. The date for the performance of the contract was fixed at 28.5.1989. The limitation had started from that date. In our case, no date was fixed for the registration of the sale deed. It is stated that defendants No. 1 to 5 were to got approval from respondent No. 6, thereafter, the sale deed was to be executed. Since, defendant Nos. 1 to 5 never got permission, therefore, the limitation cannot run. 11. In our case, no date was fixed for the registration of the sale deed. It is stated that defendants No. 1 to 5 were to got approval from respondent No. 6, thereafter, the sale deed was to be executed. Since, defendant Nos. 1 to 5 never got permission, therefore, the limitation cannot run. 11. It was rightly argued on behalf of the defendants that initially the suit for permanent injunction was not competent. The plaintiff had tried to disguise the actual relief. In such cases, the court can go behind the plaint to find relief actually claimed. No party can be allowed to avoid the court fees by device of disguising actual relief, as held in Robust Tyre and Rubber Company (P) Ltd. v. State Bank of India and others, 1987(2) Punjab Law Reporter 394. There is no dispute about the proposition of law. Now the plaintiff in his wisdom has moved an application for amendment of the plaint. If the amendment is allowed he will have to pay the court fee. In fact, he has already assessed the proposed claim at Rs. 50,000/- and has also proposed to pay the court fee. 12. According to the article 54 of the Limitation Act, the period of limitation for specific performance of the contract is three years from the date fixed for the performance or if no such date is fixed, when the plaintiff has notice that performance is refused. 13. In our case, no date is fixed in the agreement. There is no notice to the plaintiff that the defendants have refused the performance or they have sought any permission of defendant No. 6 for transfer of the plot. In such cases, the limitation would start from the such dates. Moreover, it would be a matter of evidence. The defendants can always take the plea in the written statement regarding limitation and other objections, if any. 14. The amendment is necessary for the just decision of the case. The delay can be condoned by costs. Therefore, I allow the amendment subject to payment of Rs. 4,000/- as costs. Since the amendment of the plaint has been allowed, the judgment and the decree of the ld. lower court are set aside. The case is remanded for fresh decision, after taking on the file the amended plaint and then to proceed further according to law and to decide the case expeditiously. 4,000/- as costs. Since the amendment of the plaint has been allowed, the judgment and the decree of the ld. lower court are set aside. The case is remanded for fresh decision, after taking on the file the amended plaint and then to proceed further according to law and to decide the case expeditiously. Parties are left to bear their own costs." The learned counsel for the petitioners was highly critical regarding the impugned order and he submitted that the proposed amendment, besides being highly belated, has totally changed the cause of action. He further submitted that the proposed cause of action is beyond limitation and in these circumstances the amendment under Order 6 Rule 17 C.P.C., as applied for by the plaintiff-respondents, could not be allowed by the first Appellate Court. In support of his contention, the learned counsel for the petitioners has drawn my attention to T.L. Muddhukrishna v. Smt. Lalitha Ramachandra Rao, AIR 1977(2) RCR (Civil) 154, Muni Lal v. Oriental Fire and General Insurance Co. Ltd., 1996(1) RRR 418, M/s. Melmo Agencies v. New India Assurance Co. Ltd., 1999(2) CCC 446, Jagmal Singh v. Smt. Mehma Devi, 1999(1) Civil Court Cases 578, Bhagwati Prasad Jalan v. Smt. Prem Lata Devi Kedia & others, 1998(1) Civil Court Cases 272 (Patna) and Pirgonda Hongonda Patil v. Kalgonda Shindgonda Patil and others, AIR 1957 Supreme Court 363 and his argument was that in the written statement contesting defendants No. 1 to 5 have taken a specific plea with regard to repudiation of general power of attorney and in these circumstances the cause of action arose to the plaintiff when it came to his notice that defendants No. 1 to 5 were never ready and willing to perform their part of contract and in these circumstances the proposed amendment has been sought after a lapse of three years and in such circumstances the amendment which has been sought beyond limitation should not and cannot be allowed. It was also one of the contentions of the learned counsel for the petitioners that the defendants have even denied the existence of the agreement. 8. Every case has to be governed by its own facts. In the present case, it is true that earlier the plaintiff filed a suit for mandatory and permanent injunction, but the cause of action was the basis of the agreement. 8. Every case has to be governed by its own facts. In the present case, it is true that earlier the plaintiff filed a suit for mandatory and permanent injunction, but the cause of action was the basis of the agreement. Only the frame of the suit was not proper. The cause of action was never changed. In the present case, it is pertinent to mention that in the agreement the parties never agreed that agreement will be performed on a particular date. Moreover, we all know that in an agreement of sale with regard to the immovable property time is not invariably the essence of the contract. There is nothing on the record to suggest that defendants No. 1 to 5 at any point of time had given a written notice to the plaintiff that they are not interested in the discharge of their obligation under the agreement. If the frame of the suit is sought to be changed by not changing the cause of action, no illegality has been committed by the first Appellate Court in allowing the amendment under Order 6 Rule 17 C.P.C. when the defendants have been validly and reasonably compensated with a heavy costs of Rs. 4,000/-. In this view of the matter, I do not see any merit in this revision and the same is hereby dismissed with no order as to costs. Nothing stated above shall amount an expression of my opinion on the merits of the case. Revision dismissed.