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2001 DIGILAW 269 (HP)

DANDOO RAM v. ROOP LAL

2001-10-04

K.C.SOOD

body2001
JUDGMENT Kuldip Chand Sood, J.—This revision petition under Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution of India arises out of the orders passed by learned Senior Sub Judge, Kullu, in CMA No. 148-vi/97 (Civil Suit No. 116/94), dated 10th August, 1998, whereby application of the plaintiff-petitioner, under Order 6 Rule 17 of the Code of Civil Procedure for the amendment of the plaint, was rejected. 2. In order to appreciate the controversy, few facts may be noticed: 3. Plaintiff Dandoo Ram and defendant Rup Lal are real brothers. Plaintiff filed a suit (Civil Suit No. 116/94) for specific performance of the contract i.e. for the sale of the land subject matter of dispute, allegedly executed by the defendant on 6th August, 1981. 4. The case of the plaintiff was that the disputed land was owned and possessed by one Sawaru. Sawaru entered into an agreement with defendant Rup Lal. However, Sawaru refused to execute the sale deed as stipulated in the agreement. Defendant Rup Lal filed a suit for the specific performance which was decreed. The matter went up to the High Court and ultimately a decree was passed in favour of the defendant Rup Lal. Pursuant to this decree, defendant Rup Lal was given possession of the suit land, mutation whereof was attested on 9th September, 1992. During the pendency of the litigation between Sawaru and defendant Rup Lal, defendant entered into an agreement with the plaintiff to sell this land. This agreement was made on 6th August, 1981. The consideration agreed in the agreement was Rs. 40,000. Out of this amount Rs. 30,000 were paid in cash on the date of the execution of the agreement and Rs. 10,000 were agreed to be paid at the time of the execution of the sale deed. 5. Inspite of the demands made by the plaintiff, defendant did not execute the sale deed within the stipulated time though the plaintiff was willing and able to execute the sale deed and pay the balance amount of consideration of Rs. 10,000. 6. The defendant resisted the suit. Allegations were controverted. Execution of the agreement as also consideration was denied by the defendant. 10,000. 6. The defendant resisted the suit. Allegations were controverted. Execution of the agreement as also consideration was denied by the defendant. According to the defendant that plaintiff had served a notice on the defendant through his Advocate on 11th May, 1987, in reply to which also the execution and consideration of the agreement dated 6th August, 1981, subject of the suit, was denied. 7. Learned trial Judge settled several issues. The recording of evidence was completed on 15th September, 1997 and the case was listed for arguments for 23rd October, 1997. It appears, on 23rd October, 1997, an application was filed by the plaintiff for the amendment of the plaint alongwith the amended plaint. This application was rejected by the learned trial Court by the orders impugned in this petition. A new story was sought to be introduced by the plaintiff by the amendment sought by him. According to the plaintiff, as alleged in his application, Sawaru had agreed to sell the land subject matter of dispute to the plaintiff for a consideration of Rs. 12,000 by an agreement dated 17th January, 1979. Sawaru was paid Rs. 8,000 by the plaintiff as earnest money and balance amount of Rs. 4,000 were agreed to be paid at the time of the execution of the sale deed which was to be executed by 18th January, 1980. According to the plaintiff, in default Sawaru has agreed to pay double of the earnest money. Sawaru did not execute the sale deed within stipulated period and plaintiff was about to file a suit for the recovery of Rs. 16,000, then Sawaru came to him and requested to extend the time for the execution of the sale deed. The time was extended. Plaintiff, at the relevant time, was posted as Patwari in the office of Land Acquisition Collector, Kullu, and defendant was living with the plaintiff. Plaintiff asked the defendant, his brother, to get the new agreement executed from Sawaru. He asked his brother to approach Jagar Nath, who had scribed previous agreement, for the purpose. The defendant by playing fraud got new agreement executed in his own name and left for his native village at Sarkaghat. Plaintiff did not know about it. Plaintiff asked the defendant, his brother, to get the new agreement executed from Sawaru. He asked his brother to approach Jagar Nath, who had scribed previous agreement, for the purpose. The defendant by playing fraud got new agreement executed in his own name and left for his native village at Sarkaghat. Plaintiff did not know about it. When he came to know about fraud played on him, he made up his mind to file a criminal complaint against the defendant, but due to the intervention of certain persons and the fact that the defendant was his real younger brother, he dropped the idea of filing the criminal complaint and instead "plaintiff filed the suit against Sawaru in the name of defendant because agreement was on his name". The suit was ultimately decreed and defendant was put into possession. During the pendency jof this suit, on the asking of the plaintiff, defendant executed an agreeVne^t to sell this land to the plaintiff and since the defendant had incurred the expenditure of litigation with Sawaru which, according to the plaintiff, went up to Supreme Court, reagreed to pay Rs. 40,000 to the defendant. Plaintiff paid Rs. 30,000 to the defendant on the date of the execution of the agreement i.e. 6th August, 1981 and remaining amount was to be paid at the time of the execution of the sale deed. On 10th April, 1997, Jagar Nath, witness of the plaintiff, allegedly turned hostile in the witness box as he was won over by the defendant. On 15th June, 1997, according to the plaintiff, defendant threw the first agreement, "on the face of the plaintiff (for which he has stated that the same was been torn by Jagar Nath)". The defendant challenge the plaintiff to use that agreement. It is for this reason now plaintiff wanted to amend his plaint to introduce these facts. 8. According to the plaintiff, he did not mention these facts in his plaint earlier as he did not have previous agreement with him and he relied on Jagar Nath who was scribe to the agreement. 9. Defendant opposed the application inter alia on the grounds that the facts now disclosed could have been disclosed in the original plaint and now the plaintiff cannot be permitted to take a stand which is totally opposed to the stand taken in the plaint. 9. Defendant opposed the application inter alia on the grounds that the facts now disclosed could have been disclosed in the original plaint and now the plaintiff cannot be permitted to take a stand which is totally opposed to the stand taken in the plaint. The plaintiff had, according to the defendant, a separate cause of action against Sawaru on the basis of the agreement to sell the suit land to the plaintiff. It was also pleaded that amendment of the plaint is not required to determine the real controversy between the parties. Other allegations were controverted. 10. Learned trial Court vide its impugned orders declined the amendment sought by the plaintiff on the grounds that the plaintiff himself has not come to the Court with clean hands. He nowhere stated in the earlier plaint that the defendant had played fraud on him and had managed to get an agreement to sell executed from Sawaru. He also did not disclose that Rs. 40,000 were paid to the defendant towards litigation expenses which he incurred for prosecuting the case with Sawaru. According to the learned trial Judge by proposed amendment plaintiff intends to introduce new facts which are contrary to the facts pleaded in the plaint and by filing this application plaintiff, merely wants to create "confusion and complicacy" in the present suit, "which was fixed for final arguments". Learned trial Judge also took into consideration the fact that proposed amendment was not relevant or material for the just decision of the suit which was filed on the basis of an alleged agreement dated 6th August, 1981. 11. Having heard Mr. Ramakant Sharma, learned Counsel for the petitioner and Mr. Ajay Kumar, learned Counsel for the respondent, I see no merit in the present revision petition. Order 6 Rule 17 of the Code of Civil Procedure vests discretion in the Court to allow amendment of the pleadings by either of the party if such amendments are necessary for the purpose of determining the real question in controversy between the parties. Such amendment indeed can be permitted at any stage including part of such terms as may be just and equitable. Such amendment indeed can be permitted at any stage including part of such terms as may be just and equitable. In the present case, I find that definite case of the plaintiff was that there was an agreement to sell the suit property between defendant Rup Lal, his brother, and Sawaru who did not execute the sale deed within the stipulated period and therefore defendant filed a suit for specific performance of the agreement. During the pendency of these proceedings, defendant entered into an agreement with the plaintiff to sell the suit property to the plaintiff for a consideration of Rs. 40,000 out of which Rs. 30,000 were paid on the date of the execution of the agreement. There was not a whisper about any agreement between the plaintiff and Sawaru or plaintiffs interest in the suit property. Not only this, plaintiff appearing as his own witness did not say a word about the allegations which are now sought to be made by way of amendment of the plaint. In his statement he categorically stated that there was an agreement to sell between the defendant and Sawaru and as Sawaru did not execute the sale deed in accordance with the agreement, therefore, the defendant filed a suit against Sawaru and it was during the pendency of this suit that agreement by the defendant With the plaintiff to sell this land further to plaintiff was excluded. 12. Jagar Nath was examined as PW-2. He stated, in no ambiguous term, that one agreement between the plaintiff and defendant Ex. PW-2/A was scribed by him. When the agreement Ex. PW-2/A was scribed defendant Rup Lal was not present and he and plaintiff alone were present. This witness was not cross-examined by the plaintiff. It was only when the defendant examined himself that he was put in cross-examination the story which is now sought to be introduced in the plaint by way of amendment. The defendant categorically denied all the suggestions of the plaintiff. The defendant even denied his signatures on the agreement dated 6th August, 1981 (Ex. PW-2/A). In the facts and circumstances, no fault can be found with the reasoning of the learned trial Judge that plaintiff did not come to the Court with the clean hands. If the facts were true, as claimed by the plaintiff then plaintiff would have cross-examined PW-2 Jagar Nath. PW-2/A). In the facts and circumstances, no fault can be found with the reasoning of the learned trial Judge that plaintiff did not come to the Court with the clean hands. If the facts were true, as claimed by the plaintiff then plaintiff would have cross-examined PW-2 Jagar Nath. Even the agreement, allegedly executed between the plaintiff and Sawaru, has not been produced on record. 13. In any event of the matter, the case of the plaintiff for specific performance of the contract is based on the agreement (PW-2/A) allegedly executed by the defendant on 6th August, 1981 and therefore, the story which is sought to be introduced, by way of amendment of the plaint, cannot be said to be necessary for the purpose of determining the real question in controversy i.e. the execution of the agreement Ex. PW-2/A between the plaintiff and the defendant. 14. The ambit and scope of the supervisory jurisdiction of the High Court to interfere under Section 115 of the Code of Civil Procedure and under Article 227 of the Constitution of India is limited. It is true that the High Court is not bereft of powers to interfere under its revisional jurisdiction if it is shown that the court below acted in exercise of its jurisdiction with material irregularity and the order passed by the Court, if allowed to stand, will cause failure of justice or irreparable injury to the party aggrieved. Such is not the present case. 15. In my view, the amendment sought by the plaintiff is not necessary to determine the real controversy between the parties. There is no force in the revision petition, the same is dismissed. No order as to costs. 16. The parties are directed to appear before the learned trial Court on 6th November, 2001. The record of the case shall be remitted back to the trial court immediately. Revision dismissed. -