Research › Search › Judgment

Punjab High Court · body

2001 DIGILAW 509 (PNJ)

Devender Kumar v. Rajinder Singh Yadav

2001-05-09

M.L.SINGHAL

body2001
JUDGMENT M.L. Singhal, J. - Rajinder Singh Yadav filed suit for permanent injunction against Devender Kumar Yadav, his wife Kamlesh Yadav and son Mahesh Yadav restraining them from interfering with his possession of plot ABCD and from interfering with the construction being raised by him thereon. It was alleged in the plaint that he purchased this plot from one Jai Dayal vide registered sale deed dated 31.7.1980. Since then, he has been continuously in possession of the plot as owner. Defendant Devender Kumar Yadav is the real maternal uncle of the plaintiff-Rajinder Singh Yadav. Apart from that they are married to two sisters, Smt. Kamlesh Yadav is the maternal aunt of the plaintiff, as also his sister-in-law i.e., his wifes sister. Mahesh Yadav is his cousin being his maternal uncles son and Mahesh Yadav is his nephew being his sister-in-laws son. While constructing their house, defendants had borrowed Rs. 30,000/- from the plaintiff. Out of that amount, defendant Devender Kumar Yadav had repaid him Rs. 22,000/- Rs. 8,000/- was still outstanding against Devender Kumar Yadav. Plaintiff wants to raise construction on this plot ABCD, which the defendants do not want him to do because of strained relations between them, reason being non-return of Rs. 8,000/- by defendant No. 1 to him (Rajinder Singh Yadav). 2. Defendants contested the suit of the plaintiff urging that the so called sale deed was only a benami transaction. Plaintiff never paid any consideration for the sale deed nor was he present at the time of registration of the sale deed. Plaintiff is a near relation of the defendants. As such, only the plaintiffs name was incorporated in the sale deed. Defendants have raised the house on this plot at huge expense. Defendants have been in possession since the day of purchase. 3. During the pendency of the suit, plaintiff got his plaint amended on 11.9.1998. Amended plaint was filed which was a suit for permanent injunction and possession. To this amended plaint, defendants put in written statement on 15.12.1998 in which they took the plea that they are in possession of the plot in suit being prospective vendees because there was an agreement for the sale of plot for Rs. 27,000/-, out of which Rs. 22,000/- was paid to the plaintiff through his father-in-law Inder Lal. To this amended plaint, defendants put in written statement on 15.12.1998 in which they took the plea that they are in possession of the plot in suit being prospective vendees because there was an agreement for the sale of plot for Rs. 27,000/-, out of which Rs. 22,000/- was paid to the plaintiff through his father-in-law Inder Lal. It was also pleaded by the defendants that they were always ready and willing to perform their part of agreement and they were still ready and willing to pay the balance amount of Rs. 5,000/-. To the said plea taken in written statement, plaintiff filed replication denying the aforesaid plea of the defendants. On 14.5.1999, defendants filed an application under Order 6 Rule 17 read with Section 151 CPC for amendment of the written statement, whereby they wanted to set up counter claim for specific performance on the basis of aforesaid agreement of sale, pleaded by them in the amended written statement. Through counter claim they wanted to set up the counter claim for specific performance of the agreement to sell the plot for Rs. 27,000/-, out of which, the plaintiff has received Rs. 22,000/- through his father-in-law. In this application for amendment, it was alleged that they had already pleaded that agreement to sell in their earlier written statement. Through this amendment they wanted to set up counter claim for specific performance. In the counter claim, they wanted to set up all the ingredients which are required to be pleaded in a suit for specific performance of the agreement to sell. 4. Vide order dated 20.8.1999, Civil Judge (Jr. Division), Rewari declined this application for amendment of the written statement. While declining this application for amendment, it was inter alia observed by the Civil Judge that in the moving of this application for amendment, there was delay of more than 7 years. 5. It is this order dated 20.8.1999, which has been called in question by Devender Kumar and others defendants through this revision. 6. I have heard the learned counsel for the parties and have gone through the record. 7. In the written statement originally filed to the original plaint, defendants had pleaded that the plaintiff was not the real owner of the plot in dispute. He was only a benamidar. His name was merely inserted in the sale deed. 6. I have heard the learned counsel for the parties and have gone through the record. 7. In the written statement originally filed to the original plaint, defendants had pleaded that the plaintiff was not the real owner of the plot in dispute. He was only a benamidar. His name was merely inserted in the sale deed. He neither paid any sale money nor was he present at the time of registration of the sale deed. His name was inserted in the sale deed because he is a near relation of defendant-Devender Kumar Yadav. He is Devender Kumar Yadavs "Bhanja", while Devender Kumar Yadav is his "Maama". It was also pleaded that defendants had become owners of the plot in suit through adverse possession. It was pleaded that in the face of what had been pleaded in the earlier written statement if the defendants are allowed to incorporate this amendment and set up counter claim and claim specific performance that would be the negation of the earlier plea taken by the defendants. By way of amendment, defendants wanted to take altogether contradictory and inconsistent plea with the case set up earlier. 8. Application for amendment of the written statement was moved on 14.5.1999 with a view to be able to claim specific performance of the agreement to sell, through setting up counter claim. 9. Learned counsel for the petitioners (defendants) submitted that this amendment should be allowed because in the written statement filed on 15.12.1998, they had pleaded that they are in possession of the plot in suit being prospective vendees because there was an agreement for sale of plot for Rs. 27,000/-, out of which Rs. 22,000/- had been received by the respondent (plaintiff) through his father-in-law Inder Lal. It had also been pleaded that the defendants were always ready and willing to perform their part of agreement and they are still ready to pay the balance amount of Rs. 5,000/-. It was submitted that the agreement to sell had already been set up through written statement on 15.12.1998. Through the proposed amendment, defendants wanted only to claim the relief available to them on the basis of agreement, which was relief of specific performance of the agreement of sale. 10. In my opinion, this amendment was justifiably refused by the Court below. Agreement to sell is dated 29.12.1987, where-through a sum of Rs. 22,000/- was paid. Through the proposed amendment, defendants wanted only to claim the relief available to them on the basis of agreement, which was relief of specific performance of the agreement of sale. 10. In my opinion, this amendment was justifiably refused by the Court below. Agreement to sell is dated 29.12.1987, where-through a sum of Rs. 22,000/- was paid. Agreement to sell sought to be set up is dated 29.12.1987. Application for amendment was moved on 14.5.1999. There was no limitation for claiming specific performance of the agreement dated 29.12.1987. It is well settled that amendment should not be allowed if some right has become accrued to the other party due to lapse of time and if the amendment is allowed that would tantamount to the taking away of that right from him. It is true that counter claim should be allowed, to be put in because if the counter-claim is allowed to be put in that would obviate the multiplicity of litigation. Order 8 Rule 6(a) CPC allows the setting in of the counter-claim. Order 8 Rule 6(a) CPC reads as follows : "Counter-claim by defendant - (1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not : Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter-claim shall have the same effect as a cross suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints." 11. The counter claim has to be treated as plaint and is governed by the rules applicable to the plaints. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints." 11. The counter claim has to be treated as plaint and is governed by the rules applicable to the plaints. It is settled that plaint has to be filed within the period of limitation. The counter claim could have been allowed to be put in on 14.5.1999 if there had been limitation for the defendants to claim specific performance of the agreement of sale. On 14.5.1999, obviously there was no limitation for the defendants to claim specific performance of the agreement allegedly of the year, 1987. 12. Faced with this position, learned counsel for the petitioners submitted that the amendment should have been allowed even if the effect of amendment would have been to take away some right which had become vested in the plaintiff due to lapse of time. It was submitted that the court should have allowed the amendment. If the court had allowed the amendment, defendants would have filed amended written statement claiming specific performance of the agreement to sell and the plaintiff would have filed replication/written statement to that counter claim where it could be pleaded that there was no limitation for specific performance and as such, counter claim for specific performance be dismissed. 13. In my opinion, the argument advanced by the learned counsel for the petitioners is fallacious. Assuming that there was an agreement to sell dated 29.12.1987 in favour of the defendants, on the basis of which they could claim specific performance, they could claim specific performance only within the period of limitation, which has been given in Article 54 of the Limitation Act. Plaintiff filed this suit in May, 1990. Defendants filed written statement in July, 1992. Specific performance cannot be asked for any time. It has to be asked for within the period of limitation. 14. In Parvati v. Fate Ram and others, 1996(3) SLJ 2028, wherein it had been held that amendment can be allowed at any stage in the interest of justice if it does not prejudice the rights of the other parties and will not change the character of the suit. 15. In Parvatis case (supra) suit was for possession and injunction. Originally the defendants took the defence of adverse possession. 15. In Parvatis case (supra) suit was for possession and injunction. Originally the defendants took the defence of adverse possession. Subsequently, by the application in question, the defendants prayed that they may be allowed to take the defence that they are the tenants. The trial court was of the opinion that the defendants should be given proper opportunity to contest the case and unless it is going to change the foundation of the pleadings made in the suit, the amendment should be allowed. According to the learned trial Court the proposed amendment if allowed would not be "foreign" to the subject matter of the suit. It was held following the decision of the Apex Court in L.J. Leach and Co. Limited v. M/s. Jardine Skinner and Co., AIR 1957 SC 357 that the proposed amendment is necessary to determine the real question in controversy between the parties. It was observed that it is well settled that amendment of the pleadings can be allowed at any stage in the interest of justice and if it does not prejudice the rights of the other parties and will not change the character of the suit. While considering the question of amendment of pleadings, Court need not or ought not to go into the alleged falsity of the case in the amendment nor the Court has to give its finding on the merits of the amendment without first allowing the amendment, framing issues thereon and allowing both the parties to adduce evidence and made the submissions through arguments. It was observed that amendment of written statement stands on different footing than amendment of the plaint. 16. In Parvatis case (supra), revision was dismissed and the amendment allowed by the trial Court was allowed to hold good. In Ganesh Trading Company v. Moji Ram, AIR 1972 Punjab and Haryana 260, it was a suit for possession of a house and the original plea of the defendant was that the property was gifted to her and that she was in possession of the house as owner. A plea was sought to be introduced by amendment that even if gift is not proved, she being in continuous possession of the property, she became absolute owner by adverse possession. This amendment was allowed by holding that the new plea sought to be added is not at all inconsistent with the original plea. 17. A plea was sought to be introduced by amendment that even if gift is not proved, she being in continuous possession of the property, she became absolute owner by adverse possession. This amendment was allowed by holding that the new plea sought to be added is not at all inconsistent with the original plea. 17. It was submitted by the learned counsel for the petitioners that assuming that the proposed amendment amounts to enabling the petitioner to claim specific performance beyond limitation, they should be allowed to set up counter-claim and ask for specific performance. Plaintiff can plead that the claim for specific performance has become barred by time and it should not be allowed. Issue can be framed on this plea and this issue can be decided. 18. In my opinion, the proposed amendment could not be allowed as time for grant of the relief of specific performance has run out. It was for the defendants to make out a case in their application for amendment of written statement that if they are allowed to set up counter claim, that counter claim would be within time and their claim for specific performance would be within limitation. No amendment of the pleadings can be allowed which has the effect of prejudicially affecting the other parties. In this case the question to be seen while allowing or refusing the defendants application for amendment was whether on 14.5.1999, if the defendants had filed suit for specific performance, whether it would or would not be within time. If it would be within the time, amendment should be allowed and if it would not be within time, amendment should not be allowed. 19. Defendants could, of course be allowed to amend written statement and set up counter-claim for specific performance if it were within time on 14.5.1999, notwithstanding that the setting up of counter-claim would have introduced some inconsistency in the stand taken by the defendants in the earlier written statement dated 15.12.1998. For the reasons given above, this revision fails and is dismissed. Revision dismissed.