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2001 DIGILAW 299 (HP)

RANVIR KOCHHAR v. MANI RAM

2001-10-19

C.K.THAKKER

body2001
JUDGMENT C.K. Thakker, J. :- This revision petition is filed by the petitioner-defendant against an order rejecting an application for amendment of written! Statement passed by the District judge, Chamba Division, Chamba in Case No.31 of 1997 on 20th November, 1999 titled Ranbir Kochhar v. Mani Ram. 2. The petitioner is the original defendant and the respondent is the original plaintiff. It is the case of the petitioner-defendant that on 27th June, 1982, the respondent-plaintiff agreed to sell a house situated at Dalhousie for a consideration of Rs. One lac. As per the agreement, the defendant had paid a sum of Rs.40,000/- to the plaintiff and the plaintiff put the defendant in possession of the house. It was agreed between the parties that the remaining amount of Rs.60,000/- would be paid by the defendant to the plaintiff on or before 25th July, 1983 and then the plaintiff was to execute sale deed in favour of the defendant. It was further agreed that if there was default on the part of the plaintiff in executing the sale deed as agreed, he would be liable to pay an amount of Rs.80,000/- to the defendant. Conversely, if there was default in making payment of remaining amount by the defendant, the amount of Rs.40,000/- which had already been paid would be forfeited by the plaintiff. The sale deed in question could not be executed. The case of the plaintiff was that there was breach of agreement by the defendant and as he was in possession of the property, the plaintiff fled a suit on 6th June, 1986 for possession of the house. It was alleged in the plaint that the defendant failed to pay the remaining amount of Rs.60,000/- and, hence, sale deed could not be executed. 3. In the written statement, the plea of the defendant was that it was the plaintiff, who failed to execute the sale deed. He, therefore, set up a counter claim of Rs.80,000/- on the ground that there was violation of terms and conditions on the part of the plaintiff. 4. The suit filed by the plaintiff was decreed by the Senior Sub judge, Chamba for possession in favour of the plaintiff. He, however, directed the plaintiff to pay Rs.80,000/- to the defendant. 5. An appeal was filed against the said decree by the defendant. 4. The suit filed by the plaintiff was decreed by the Senior Sub judge, Chamba for possession in favour of the plaintiff. He, however, directed the plaintiff to pay Rs.80,000/- to the defendant. 5. An appeal was filed against the said decree by the defendant. An application was also submitted praying therein to allow him to amend the written statement with a view to take certain pleas by raising preliminary objections. The learned District Judge incorporated the amendment sought by the defendant, which reads as under: (i) That the defendant is in possession of the property in pursuance to the agreement of sale. After the defendant has come into possession of the property by paying Rs.40,000/- as earnest money advance the defendant has effected considerable improvements on the property by spending over more than Rs. 1,50,000/-. The defendant has been always ready and willing to perform his part of the agreement. The plaintiff is, therefore, not entitled to claim reliefs claimed in the suit. (ii) That the defendant being in possession of the property in part performance of the contract and has always been and is still ready and willing to perform his part of the contract entered into in writing by the plaintiff with the defendant, the plaintiff is not entitled to the possession of the property or damages from the defendant in view of the provisions of Section 53-A of the Transfer of Property Act. (iii) That the plaintiff is estopped from filing the suit on account of his acts, deeds and conduct. The plaintiff having put the defendant in possession of the property after receiving Rs.40,000/-, and having permitted him to carry out extensive repairs and renovations and improvements of the property is now estopped from seeking possession of or mense profits from the defendant. The defendant is prepared to pay the balance of Rs.60,000/- and the plaintiff should transfer the title in favour of the defendant. The plaintiff should also hand over the possession of the property which he is unauthorisedly keeping with him. The only remedy which is available to the plaintiff is to seek specific performance of the agreement and hot the suit for possession and damages. More so when the plaintiff is at fault." 6. The plaintiff should also hand over the possession of the property which he is unauthorisedly keeping with him. The only remedy which is available to the plaintiff is to seek specific performance of the agreement and hot the suit for possession and damages. More so when the plaintiff is at fault." 6. The application was resisted by the plaintiff, inter alia, contending that similar pleas were raised by the defendant before the Honble High Court in CMP No.91 of 1989 and the application was withdrawn. It was also contended that earlier an attempt was made to amend the written statement and the application was rejected against which revision petition was filed in the High Court, which was also dismissed on 27th July, 1999. The amendment was sought merely to cause delay and it was, therefore, mala fide. It was the case of the plaintiff that by paying an amount of Rs.40,000/-, the defendant was in possession of about forty rooms in the house and, hence, he intended to cause delay in the matter on one pretext or the other. He therefore prayed that the amendment application be dismissed. 7. After hearing the learned counsel for the parties and refereeing to various decisions cited at the Bar, the learned judge dismissed the petition. In paragraphs 7 and 8, he observed; "7. The perusal of the record suggests that the first application for amendment was moved by the appellant on 24.5.1989 for the amendment of the written statement. Thereafter, he moved second application on 29.9.1997, third on 26.10.1998, fourth on 10.3.1999 and the fifth application on 26.10.1999. In his application dated 26.10.1998, the applicant had taken the plea of specific performance. His amendment application was dismissed and therefore he filed civil revision petition No.31 of 1999. In this revision petition, it has specifically been held in para 11 that an amendment in the pleadings cannot be allowed after the expiry of limitation if it has the affect of setting up a new case all together from the case originally set up. When the contents of the instant application are gone through, it can be safely said that by changing the language of the application, a plea of specific performance has again been taken by the appellant. When the contents of the instant application are gone through, it can be safely said that by changing the language of the application, a plea of specific performance has again been taken by the appellant. In para 6 clause 3, it has been mentioned as under: The defendant is prepared to pay the balance of Rs.60,000/- and the plaintiff should transfer the title in favour of the appellant. The plaintiff should also hand over the possession of the property which he is unauthorisedly keeping with him. 8. These averments suggest that by filing this application, the applicant intends to delay the proceedings and has not filed this application with bonafide intention." 8. The said order is challenged by the defendant in the present petition. Initially, notice was issued on 29th November, 1999 and after hearing the parties, it was admitted on 7th August, 2000. It was placed for final hearing and I have heard the learned counsel for the parties. 9. Mr. K.D. Sood, learned counsel for the petitioner-defendant contended that the District court had committed an error of jurisdiction in rejecting the application for amendment. He submitted that it is settled law that provisions relating to amendment of pleadings should be construed liberally and ordinarily no amendment sought by a party should be refused. He also submitted that regarding amendment in written statement, the law is much more liberal and the decisions of the Supreme Court clearly go to show that unless serious prejudice is caused to the plaintiff, amendment in written statement should not be refused. He also submitted that by way of amendment, the defendant wanted to take certain preliminary objections and for the said purpose intended to amend the written statement. By rejecting the same, the District Court had exceeded its jurisdiction and had also acted illegally and with material irregularity. It was urged that extraneous and irrelevant considerations have been taken into account that earlier he rejected the amendment application. According to the rejection of earlier revision petition was in respect of other amendment and it had nothing to do with the amendment, which is sought by the defendant in the present proceedings. It was urged that extraneous and irrelevant considerations have been taken into account that earlier he rejected the amendment application. According to the rejection of earlier revision petition was in respect of other amendment and it had nothing to do with the amendment, which is sought by the defendant in the present proceedings. It was submitted that when the defendant was in possession of property, it was open to him to invoke the provisions of Section 53-A of the Transfer of .property Act, 1882 and such a plea could not be negatived when the defendant wanted to take benefit of a legal provision. On all these grounds, the counsel prayed that the order passed by the District Court deserves to be quashed and set aside. 10. Mr. Tarlok Chauhan, learned counsel for the respondent-plaintiff, on the other hand, supported the order passed by the District Court. He submitted that whether to grant or refuse amendment is in the discretion of the Court. An order of amendment of pleadings passed by a competent Court cannot be attacked on the ground of want of jurisdiction or excess of jurisdiction. It was also submitted that certain findings had been recorded by the District Judge; such as the application had been made with a view to delay the proceedings; it would change the nature of the suit; it was mala fide and it would be barred by law of limitation, etc. All the above grounds were relevant and germane and the action taken by the District court cannot be said to be illegal or contrary to law. It was also submitted that the amendment is sought after about 15 years. By that time, a valuable right had already got accrued in favour of the plaintiff. Moreover a counter claim was filed by the defendant, wherein damages have been claimed and even Court fees have been paid on it. Thereafter, it was not open to the defendant to change the nature of suit, take inconsistent plea and press into aid the provisions of Section 53-A of the Transfer of Property Act, 1882. It was also submitted that as many as five amendment applications were rejected or withdrawn, which shows mala fide intention of the defendant in moving amendment applications. The object of the defendant is to get over an order passed by this Court in earlier revision petition. It was also submitted that as many as five amendment applications were rejected or withdrawn, which shows mala fide intention of the defendant in moving amendment applications. The object of the defendant is to get over an order passed by this Court in earlier revision petition. On all these grounds, it was submitted that the petition deserves to be dismissed. 11. Having heard the learned counsel for the parties and having gone through the record, in my opinion, it cannot be said that by rejecting the application, the learned Judge has committed jurisdictional error, which requires to be corrected in exercise of revisional powers of this Court under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code). 12. It is true that the provisions relating to amendment of pleadings deserve to be liberally construed. It is also true that ordinarily, an amendment application, and that too, amendment of written statement should not be lightly rejected by a Court. At the same time, however, it is equally well settled that amendments should be allowed if it satisfies twin test; (i) of not working injustice to the other side; and (ii) of being necessary for the purpose of determining the real questions in controversy between the parties. It is equally well settled that an amendment may be refused where it introduces a totally different, new and inconsistent case or changes the fundamental-character of the suit or defence. Again, it can be refused if it seeks to take away from the other side a legal right accrued in his favour. Likewise, amendment may be refused if it has not been made bona fide and in good faith. 13. In this connection, my attention was invited by the learned counsel for the parties to the following decisions: 1. Jai Ram Manohar Lal v. N.B.M. Supply, AIR 1969 SC 1267; 2. Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484; 3. L.J. Leach & Co. Ltd. & Anr. v. M/s. Jardine Skinner & Co., AIR 1957 SC 357; 4. Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil & Ors., AIR 1957 SC 363; 5. A.K. Gupta v. Damodar Valley Corpn., AIR 1967 SC 96; 6. B.K. Narayana Pillai v. Parameswaran Pillai & Anr., 2000(1) SCC 712; Current Law Journal CCR 2000(1 )-251 and 7. Ragu Thilak D. John v. S. Rayappan & ors., 2001(2) SCC 472. 14. Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil & Ors., AIR 1957 SC 363; 5. A.K. Gupta v. Damodar Valley Corpn., AIR 1967 SC 96; 6. B.K. Narayana Pillai v. Parameswaran Pillai & Anr., 2000(1) SCC 712; Current Law Journal CCR 2000(1 )-251 and 7. Ragu Thilak D. John v. S. Rayappan & ors., 2001(2) SCC 472. 14. Looking to the entire record, it is clear that in 1989, an amendment application was moved by the defendant being CMP No.91 of 1989. It was filed in this Court in RFA No. 168 of 1987. It was, however, withdrawn on 27th September, 1997 with a view to file fresh application. Again, an application was filed on 29th September, 1997 seeking amendment of written statement by adding certain paragraphs. It was, however, dismissed as withdrawn on 17th November, 1997. A third application was submitted in October, 1998, which was dismissed by the District Judge. Against the said decision, the defendant approached this Court and Civil Revision No.31 of 1999 was also dismissed by a Single Judge of this Court (Coram: Surinder Sarup, J.) Fourth application thereafter was instituted in March, 1999, which was also withdrawn and this is the fifth one, which is rejected by the learned District Judge. 15. It is also proved from the record that a counter claim was filed by the defendant, wherein damages have been claimed. Court fee is also paid on the basis of the counter-claim of Rs.80,000/-. it was, therefore, submitted by the learned counsel for the plaintiff, and in my opinion rightly, that the defendant had virtually given up the claim of specific performance and it is now not open to him to seek amendment of written statement and put forward the said claim. 16. In this connection, reference was made by the learned counsel to a decision of the Supreme Court in Prem Raj v. D.L.F. Housing and Construction (Private) Ltd., & Anr. AIR 1968 SC 1355. There the Supreme Court ruled that alternative and inconsistent pleas in the pleadings are permissible and can be taken. It is, however, subject to the limitation and rider that all such alternative prayers and inconsistent pleas must be available in law. In Prem Raj, the plaintiff prayed for a specific performance of the contract and in the alternative, for declaration that the contract was void. It is, however, subject to the limitation and rider that all such alternative prayers and inconsistent pleas must be available in law. In Prem Raj, the plaintiff prayed for a specific performance of the contract and in the alternative, for declaration that the contract was void. The Court held that both the pleas could not stand and one would be destructive of the other. It was, therefore, not open to the plaintiff to take such contentions in the alternative. The Court referred to the provisions of Section 37 of the Specific Relief Act 1877 (since repealed) and observed; "It is expressly provided by this section that a plaintiff suing for specific performance of the contract can alternatively sue for the rescission of the contract but the converse is not provided. It is, therefore, not open to a plaintiff to sue for rescission of the agreement and in the alternative sue for specific performance. Section 35 of the Specific Relief Act, 1877 states the principles upon which the rescission of a contract may be adjudged. But there is no provision in this section or any other section of the Act that a plaintiff suing for rescission of the agreement may sue in the alternative for specific performance. In our opinion, the omission is deliberate and the intention of the Act is that no such alternative prayer is open to the plaintiff." (Emphasis supplied). 17. The Court also quoted with approval passage from "Fry on Specific Performance", 6th Edn., P.493, which reads thus: "It remains to remark that the plaintiff, bringing an action for the specific performance of a contract, may claim in the alternative that, if the contract cannot be enforced, it may be rescinded and delivered up to be cancelled, provided that the alternative relief is based on the same state of facts, though with different conclusions as to law. When the action is brought by the vendor, and the purchaser has been in possession, this alternative claim may embrace an account of the rents and profits. But for the reason already stated a suit to set aside a transaction for fraud or, in the alternative, for specific performance of a compromise could not be sustained in the Court of Chancery. But for the reason already stated a suit to set aside a transaction for fraud or, in the alternative, for specific performance of a compromise could not be sustained in the Court of Chancery. And notwithstanding the provisions of the Rules of the Supreme Court as to alternative claims for relief, it seems probable that the same conclusion would still be arrived at, on the ground that the claims were inconsistent and embarrassing." 18. The principle in Fry on Specific performance was followed in Cawley v. Poole, 1863 (71) ER 23 in which it was held by the Court of Chancery that in a case where a bill alleges a judgment obtained by fraud, and a subsequent compromise, and seeks to set aside the whole transaction on the ground of fraud, or in default to have the compromise carried out, and the Court is of the opinion that the case of fraud fails, it will not enforce the compromise but the whole bill was liable to be dismissed. 19. My attention was also invited by Mr. Chauhan to a decision of the High Court of Punjab and Haryana in Roop Chand Chaudhari v. Smt. Ranjit Kumari, AIR 1991 P&H 212, wherein Prem Raj was followed. In Roop Chand Chaudhari, a suit was filed for refund of the advance, damages and interest for not executing the sale deed within the specified time limit. A amendment in plaint was then sought for specific performance of contract and damages as in alternative relief of specific performance. The amendment application was allowed by the trial Court against which the aggrieved party approached the High Court. Allowing the revision petition and setting aside the order of the trial Court, the Court held that as per settled law such an amendment could not have been allowed. 20. No doubt, Mr. Sood, learned counsel for the defendant submitted that in Roop Chand Chaudhari, it was the plaintiff who sought amendment of his plaint. In the instant case, it is the defendant, who seeks amendment of written statement, and, hence, the principle laid down in the said case does not apply. At the first blush, the submission appears to be attractive, but on close scrutiny, it has no force and cannot be upheld. Mr. In the instant case, it is the defendant, who seeks amendment of written statement, and, hence, the principle laid down in the said case does not apply. At the first blush, the submission appears to be attractive, but on close scrutiny, it has no force and cannot be upheld. Mr. Chauhan, in my opinion, is right in submitting that the defendant has not only filed written statement to the suit of the plaintiff, but has also filed counter claim. In the counter claim, his prayer is for damages of Rs.80,000/-. On the basis of the said claim, he has paid even court fees. Mr. Chauhan submitted that to the extent of the prayer of counter claim by the defendant, he is in the same position as if he were a plaintiff and plaintiff is in the position of defendant. 21. It is relevant in this background to consider the relevant provisions of the Code. Rules 6A to 6G of Order VIII of the Code provide for filing of counter claim by the defendant. A counter claim thus may be defined as "a claim made by the defendant in a suit against the plaintiff. It is, therefore, substantially a cross action by the defendant against the plaintiff. A counter claim can be filed for which the defendant can institute a separate and independent suit. The plaintiff is at liberty to file a written statement in answer to the counter claim of the defendant. Sub-rule (4) of rule 6-A of Order VIII of the Code declares that "the counter claim shall be treated as a plaint and governed by the Rules applicable to the plaints". It is thus clear that counter claim of the defendant is his suit and the reply to the counter claim by the plaintiff is his written statement. 22. Now, in Prem Raj, the Supreme Court has held that the plaintiff cannot take inconsistent pleas, which cannot be taken in law. The Court also stated that 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. Now, when the plaintiff alleges that the agreement was a result of fraud or undue influence and, hence, was not binding upon him, he had no cause of action for specific performance of the contract. Now, when the plaintiff alleges that the agreement was a result of fraud or undue influence and, hence, was not binding upon him, he had no cause of action for specific performance of the contract. When he claims damages, there is a definite election by him to treat the contract at an end and no suit for specific performance could thereafter be maintained by the aggrieved party. In the instant case, though the plaintiff is defendant and though he had filed a written statement, he had also submitted counter claim in which a claim was made for damages at Rs.80,000/- and on that basis, court fees were also paid by him. In law, such counter claim of the defendant is his plaint and thus all the Rules, which would apply to plaint would apply with equal force to counter claim. To that extent, the defendant becomes the plaintiff. Since the defendant had claimed damages and has already made election to treat the contract as if it had come to an end, it is not open to him to seek amendment of written statement by praying for specific performance of such contract. In my opinion, therefore, j by rejecting the application for amendment, the learned District Judge has not committed any error of jurisdiction. On the contrary, the order is in consonance with law. 23. Mr. Sood, learned counsel submitted that applicability of Section 53-A of the Transfer of Property Act is not limited as a shield and it can be used as a sword also. For that, reliance was placed on a decision of the Full bench of the High Court of Bombay in Mahadeo Nathuji Patil v. Surjabai Khushal Chand Lakkad & Ors., 1996 Bombay Law Reporter 846. Reference was also made by the learned counsel for the parties to the following decisions: 1. Mohan Lai (Deceased) through his LRs Kachru & Ors., 1996( 1) SCO 639; 2. Biswabani Pvt. Ltd. v. Santosh Kumari Dutta & Ors., 1980(1) SCC 185; and 3. Bhula Ram v. Narbir Singh, 1997 (3) Sim LC 473. 24. It may not be necessary for me to enter into that question since, in my view, in the facts and circumstances of the present case, rejection of the amendment application by the learned District Judge is legal, valid and in consonance with law laid down by the apex court in Prem Raj. 25. 24. It may not be necessary for me to enter into that question since, in my view, in the facts and circumstances of the present case, rejection of the amendment application by the learned District Judge is legal, valid and in consonance with law laid down by the apex court in Prem Raj. 25. For the foregoing reasons, in my judgment, no jurisdictional error can be said to have been committed by the learned District Judge in rejecting the amendment application. The petition, therefore, deserves to be dismissed and is accordingly dismissed. In the facts and circumstances of the case, however, there shall be no order as to costs. -