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2001 DIGILAW 293 (HP)

FERMANTA-PHARMA BIOTECH LTD. v. DHANIRAM

2001-10-17

K.C.SOOD

body2001
JUDGMENT Kuldip Chand Sood, J. (Oral):- This revision petition is directed against the orders of learned Senior Sub Judge, Mandi, dated 19.06.2001 whereby application for amendment of the plaint was rejected by the learned trial Court. 2. In this petition notice was directed to be issued to the respondents but the respondents are neither present nor represented inspite of service. 3. I have heard Mr. Sanjeev Kuthiala, learned counsel for the petitioner and gone through the records. 4. It appears plaintiff is a registered company. The Company filed a suit for specific performance of the Contract for directing the respondents-defendants to transfer the formal title of the suit land by executing necessary sale deed in favour of the plaintiff. In the alternative, a decree for declaration was sought declaring the plaintiff to be owner of the suit land by way of adverse possession. Further relief of declaration was sought that sale deed executed by the defendant No.l on 2.7.1999 in favour of defendant No.2 is null and void and collusive and not binding on the rights of the plaintiff. A decree for permanent prohibitory injunction was also sought against the defendants-respondents from interfering with the possession of the plaintiff over the suit land. 5. Case of the plaintiff was that the land subject matter of dispute was owned and possessed by defendant No. 1 Dhani Ram Which was earlier owned; by Smt. Bhuri Devi. Smt. Bhuri Devi entered into an agreement with the\ plaintiff to sell this land to him. Defendant No.l is son of Smt. Bhuri Devi and holder of General Power Attorney of Smt. Bhuri Devi. Smt. Bhuri Devi had agreed to sell the suit land at the rate of Rs.37, OOO/- per bigha to the plaintiff and an agreement to this effect was executed on 25.10.1986. According to the plaintiff, Rs.5, 000/- were paid by the plaintiff by a. cheque on the same date, as earnest money. The sale deed, it was agreed, would be executed in favour of the plaintiff after obtaining necessary permission for such sale. The plaintiff was put into possession on the date of agreement. The entire balance sale consideration of Rs.1, 28, 200/- was paid on 2.7.1987 to defendant No.l by a cheque drawn o State Bank of India. The amount was received by defendant No.l as General Power of Attorney of Smt. Bhuri Devi. Thus, the entire sale consideration stood paid. The plaintiff was put into possession on the date of agreement. The entire balance sale consideration of Rs.1, 28, 200/- was paid on 2.7.1987 to defendant No.l by a cheque drawn o State Bank of India. The amount was received by defendant No.l as General Power of Attorney of Smt. Bhuri Devi. Thus, the entire sale consideration stood paid. The sale deed could not be executed as the land was granted to Smt. Bhuri Devi as Nautaur and under the Rules transfer of such land could only be made after ten years of the grant. The plaintiff developed the suit land after spending huge money. The land was also fenced with barbed wires. The foundation stone of the factory was laid in the year 1987. Smt. Bhuri Devi died the year 1987-88. On 31.7.1997 period of ban for transfer of the land expired. The plaintiff approached defendant No.l to execute the formal sale deed but he was put off on the ground that he would do so after the suit land was mutated in his favour. Plaintiff, again approached defendant No. 1, after attestation of mutation of inheritance of the suit land, but was again put off by defendant No.l giving false assurance that he would do so soon. Plaintiff then served of notice on defendant No.l on 9.7.1999 but inspite of such notice defendant No. 1 did not execute the sale deed. It is the case of the plaintiff that he is in settled possession of the suit land since 25.10.1986 and from 2.7.1987; the date on which the entire consideration of sale was paid to defendant No. 1, he is in possession of the suit land as owner. Plaintiff came to know on 13.7.1999 that defendant No.l had sold this land to defendant No.2 by a sale deed dated 2.7.1999. According to plaintiff, sale deed executed in favour of defendant No.2 is void as defendant No. 1 did not have any valid title in the suit land after the receipt of the entire consideration of sale from the plaintiff. It is pleaded that the sale deed executed in favour of defendant No.2 does not pass any right, title or interest to the defendant No.2 on this land. It is pleaded that the sale deed executed in favour of defendant No.2 does not pass any right, title or interest to the defendant No.2 on this land. In the alternative, case of the plaintiff was that possession of the plaintiff over the suit land since 2.7.1987 was hostile to the knowledge of defendants which is more than 12 years and, therefore, the plaintiff has acquired title on the suit land being in adverse possession for more than the statutory period. 6. The suit was resisted by defendant No. 1, controverting all the allegations. It was denied that defendant No. 1 received Rs.5, 000/- as earnest money. The agreement was disputed. It was denied that defendant No.l received Rs.1, 28,200/- as balance consideration of the amount, as alleged by the plaintiff, defendant No.2 set up a plea that he was a bonafide purchaser. According to him, he had made an inquiry about the title of defendant No. 1 in respect of the suit land and found that defendant No. 1 had valid title over the suit land and he could transfer the suit land and, therefore, the sale made by defendant No. 1 in his favour cannot be set aside. 7. The plaintiff in his application for the amendment of the plaint pleaded that though he had taken a plea of adverse possession as well as specific performance of the contract but by amendment he wants to set up his plea of adverse possession as main stay of the suit and claim specific performance of the contract only in the alternative. Plaintiff seeks permission to rearrange paras 10,11 and 13 with slight amendments and also amendment of prayer clause praying for a decree for declaration that the plaintiff is in adverse possession of the suit land and the sale deed executed by defendant No. 1 in favour of defendant No.2 is null and void. In alternative, plaintiff prays for specific performance of the contract directing defendant No.l to execute the sale deed of the suit land in favour of the plaintiff. The amendment was disallowed by the learned trial court on the ground that such amendment is not necessary to determine the real question in controversy between the parties. 8. In alternative, plaintiff prays for specific performance of the contract directing defendant No.l to execute the sale deed of the suit land in favour of the plaintiff. The amendment was disallowed by the learned trial court on the ground that such amendment is not necessary to determine the real question in controversy between the parties. 8. The plaintiff, in other words, wants to seek relief of declaration that he is in adverse possession of the suit land, as main relief, and if this plea of the plaintiff is not accepted then he prays for specific performance of "the contract, which is denied by defendant No. 1. 9. The trial Court dismissed the application of the plaintiff on the ground that proposed amendment is not necessary for determination of real question of controversy between the parties. 10. It is true that the amendment cannot be claimed as a matter of right but at the same time the Court should not adopt hypertechnical approach while deciding the prayer for amendment of the pleadings particularly when no prejudice is likely to be caused to the opposite party (See B.K. Narayana Pillai v. Parameswaran Pillai & Anr. 2000(1) SCC 712; Current Law Journal 2000(1) CCR-251. It has to be remembered that plaintiff is dominus litus of his litigation. 11. In the present case, evidence of the parties is still to be recorded. No prejudice will be caused to the respondents-defendants, if the petitioner-plaintiff is permitted to amend his pleadings. It will also /be noticed that the defendant No. 1 has repudiated the agreement executed by his mother to sell the suit land and has also denied the receipt of balance consideration of Rs.1,28,200/- on 2.7.1987. It is in view of repudiation of the sale agreement and receipt of the consideration that the petitioner-plaintiff wants to set up his plea of adverse possession as main plea and only in the alternative prays for specific performance of the contract. 12. In the facts and circumstances of this case, the learned trial Court was not right in disallowing the application of the plaintiff. 13. In result, the revision petition is accepted. The impugned order of the learned trial Court dated 19.6.2001 is set aside. The application of the plaintiff for amendment of plaint is allowed. The plaintiff is permitted to amend his plaint in terms of the application filed by him. 14. 13. In result, the revision petition is accepted. The impugned order of the learned trial Court dated 19.6.2001 is set aside. The application of the plaintiff for amendment of plaint is allowed. The plaintiff is permitted to amend his plaint in terms of the application filed by him. 14. Amended plaint is already on the record. The defendants, it is made clear, shall be entitled to file written statement, if any, to the amended plaint in terms of the amendment. 15. The revision petition is accordingly disposed of. 16. The plaintiff shall appear before the trial Court on 20.11.2001. Records of the trial Court be sent immediately so as to reach there on or before the fixed date. C.M.P. Nc.317of2001 17. In view of the order passed in the main revision petition, this application does not survive and the san e stands disposed of. 18. Copy Dasti on usual charges.