Research › Search › Judgment

Punjab High Court · body

2008 DIGILAW 1930 (PNJ)

Virender Kumar Khullar v. Raj Kumar Sharma

2008-11-18

AUGUSTINE GEORGE MASIH

body2008
JUDGMENT Augustine George Masih, J. (Oral):- This revision petition under Article 227 of the Constitution of India against order dated 16.3.2007 has been preferred by the petitioner-defendant No.1 whereby the trial Court has allowed the application of the plaintiff-respondent for amendment of the plaint under Order 6 Rule 17, Code of Civil Procedure. 2. The facts, in brief, are that as per agreement to sell dated 18.1.1999, Raj Kumar-the plaintiff, was assigned 1/4th share while the remaining 3/4th share was of one Karan Khullar-defendant No.5. The sale deed was to be executed on 30.6.1999. The same having not been done, Raj Kumar-plaintiff preferred a civil suit on 12.1.2004 seeking specific performance of agreement dated 18.1.1999 to the limited extent of his share i.e.1/4th of the land which in all was 92 kanals and 18 marlas. Written statement was filed by defendant Nos.1 to 4 on 29.7.2004 wherein a specific stand was taken that the suit could not be decreed partly as the agreement was a consolidated single agreement and it could not be served. Issues in the suit were framed on 31.8.2006. During the pendency of the suit, when the case was fixed for plaintiff’s evidence, an application dated 30.10.2006 was filed by the plaintiff for amendment of the plaint under Order 6 Rule 17, Code of Civil Procedure. Upon notice of the said application, the defendant Nos.1 to 4 filed reply to the application. The trial Court vide the impugned order dated 16.3.2007(Annexure P-3) has allowed the said application. Hence, the present revision. 3. It is the contention of the petitioner that the proposed amendment could not be allowed in the light of proviso to Order 6 Rule 17 CPC, which clearly says that no application for amendment shall be allowed after the commencement of the trial. It is further the contention of the petitioner that the amendment now being sought could not have been allowed for the simple reason that for amending the pleadings, the first requirement is that in spite of due care and diligence, the party could not have raised the matter or pleaded the same initially when the suit was instituted. It is further the contention of the petitioner that the amendment now being sought could not have been allowed for the simple reason that for amending the pleadings, the first requirement is that in spite of due care and diligence, the party could not have raised the matter or pleaded the same initially when the suit was instituted. The plaintiff has claimed his right under the agreement and he having not pleaded the specific performance of the agreement as a whole cannot now be allowed to take this plea which would prejudice the stand of the defendants wherein a legal right has accrued to him according to which the decree as claimed for in the suit cannot be passed. 4. Counsel for the petitioner has, apart from the submissions recorded above, relied upon to a judgment of the Hon’ble Supreme Court in the case of Ajendraprasadji N.Pande & another vs. Swami Keshavprakeshdasji N. & others, 2007(1) RCR (Civil) 481, to contend that the amendment in the pleadings cannot be allowed when the trial has commenced and the trial is deemed to have commenced when the issues are settled and the case is set down for recording of the evidence. Another contention which has been raised by the counsel for the petitioner is that the amendment to the pleadings could not be allowed if a fresh suit on the amended claim would be barred by limitation on the date of filing of the application for amendment. In the instant case, the agreement is dated 18.1.1999 and the sale-deed was to be executed on 30.6.2001. Therefore, the limitation for filing the suit for specific performance being three years, the period would have expired on 30.6.2004. The application for amendment of the plaint has been filed on 30.10.2006 which is well beyond the period of limitation prescribed for a suit to be filed for specific performance. The same being the position in the light of the judgment of the Hon’ble Supreme Court, titled as State Bank of Hyderabad vs. Town Municipal Council. 2007(1) RCR Civil 415, the proposed amendment could not have been allowed by the trial Court and should have been rejected. 5. On the other hand, counsel for the respondent-plaintiff has contended that by the amendment, the very nature of the suit has not been changed. 2007(1) RCR Civil 415, the proposed amendment could not have been allowed by the trial Court and should have been rejected. 5. On the other hand, counsel for the respondent-plaintiff has contended that by the amendment, the very nature of the suit has not been changed. No prejudice, as such, would be caused to the defendants as the agreement to sell is the same. The nature of pleadings also continue to be the same and it is only a prayer clause has been added along with supporting pleadings to claim the execution of the share of defendant No.5 having the effect of specific performance of the whole of the agreement to sell dated 18.1.I999. It has further been contended by the counsel for the respondent that the trial Court vide the impugned order dated 16.3.2007 has kept the question of limitation open and therefore, that right also is protected by the defendants. He has relied upon the judgment of the Hon’ble Supreme Court in the case of Ragu Thilak D. John v. S. Rayappan and others, (2001)2 Supreme Court Cases 472, to contend that the amendment sought could not have been declined merely on the basis of limitation because the purpose for amendment is to minimise the litigation and the question of limitation can be taken up for consideration at the time when a final decision on the suit has to be taken as it would require leading of the evidence. It is the contention of the learned counsel for the respondent that the amendment of the plaint is primarily the discretion of the Court and in the present case, the said discretion has been exercised by the Court in accordance with law which does not call for interference by this Court. He further states that the relief sought to be added by way of amendment cannot be declined merely on the ground of limitation. He contends that proviso to Order 6 Rule 17 CPC would not come in the way of the discretionary power which has to be exercised by the Court if the Court comes to the conclusion that the proposed amendment would not irreparably prejudice the right of the opposite party. The amendment can even be brought about and allowed by the Court even after the commencement of the trial. The amendment can even be brought about and allowed by the Court even after the commencement of the trial. For this, he relies upon the judgment of the Hon’ble Supreme Court in Pradeep Singhvi and another vs. Heero Dhankani and others, 2004(13) Supreme Court Cases 432. 6. After going through the impugned order and the contentions raised by the counsel for the petitioner as well as the respondent and the judgments referred to by them, I am of the considered view that the present revision petition deserves to be allowed. The agreement to sell is dated 18.1.1999. The sale-deed was to be executed on 30.6.2001. The suit for specific performance, for 1/4th share as per the agreement, was filed on 12.1.2004 and written statement thereto was filed on 29.7.2004. The plaintiff could have exercised the right of amendment at that stage but did not do so and thereafter, the issues were framed on 31.8.2006 and it is only when the case was fixed for evidence that the application dated 30.10.2006 was filed by the plaintiff for amendment of the plaint. Order 6 Rule 17 CPC reads as follows:- “The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” A perusal of the above would show that the Court can at any stage of the proceedings allow any of the parties to alter or amend his pleadings. However, the rider to that is that no application for amendment shall be allowed after the trial has commenced unless the Court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the trial Court before the commencement of the trial. In the present case, initially, the suit was filed on the very basis of the agreement dated 18.1.1999 which was all through to the knowledge of the plaintiff. In the present case, initially, the suit was filed on the very basis of the agreement dated 18.1.1999 which was all through to the knowledge of the plaintiff. Although the shares were specified in the agreement itself but still the plaintiff chose to get his 1/4th share in the agreement to be made the basis for specific performance and thus, a right on the basis of the said claim accrued to the respondent as far as the 3/4th share of the agreement is concerned. The period for getting the same enforced has since expired and the amendment was sought through an application dated 30.10.2006 whereas the limitation for specific performance of the agreement expired on 30.6.2004 which was well beyond the period of limitation. No reasons whatsoever have been assigned for seeking the amendment in the plaint at this belated stage. The trial has commenced since the issues stood framed on 31.8.2006. The plaintiff cannot now be allowed to turn around and say that despite his due diligence, these pleas could not have been raised before the commencement of the trial. In the light of the judgments passed by the Hon’ble Supreme Court in Ajendraprasadji N.Pande’s and State Bank of Hyderabad’s cases (supra), the amendment, in any case, could not have been allowed being barred by limitation on the date of application. The judgments relied upon by the counsel for the respondents do not apply to the case in the light of facts and pleadings, referred to above, as the case of the respondent would not be covered by the proviso to Order 6 Rule 17 Code of Civil Procedure as regard due diligence is concerned. In the light of the above, this petition is allowed order dated 16.3.2007 passed by the Civil Judge (Junior Division), Palwal, District Faridabad is set aside and the application under Order 6 Rule 17, Code of 1 of Civil Procedure, filed by the plaintiff/respondent stands dismissed. ----------------