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2008 DIGILAW 322 (JHR)

Himanshu Sekhar v. Kumar Mahesh Chandra

2008-03-14

M.Y.EQBAL

body2008
Order This writ application under Article 227 of the Constitution of India is directed against the order dated 11 .1.2008 passed by Sub-Judge-II, Ranchi in Title Suit No.191 of 2004 by which plaintiff's petition for amendment of plaint, filed under Order VI, Rule 17 of the Code of Civil Procedure, has been allowed. 2. Plaintiff/respondent no. 1 filed Title Suit No. 191/04 in the Court of Sub-Judge-II, Ranchi for a decree for specific performance of the agreement dated 22.8.1998 and for a direction to the defendant no". 1 to execute the deed of sale in favour of the plaintiff in respect of the suit property and further for a declaration that the deed of sale dated 13.3.2004 executed in favour of defendant no. 2 is illegal and not binding on the plaintiff. 3. Plaintiff's case was that defendant no. 1, being in acute need of money, agreed to sale the suit property for a consideration of Rs. 1,10,000/- (Rupees One lakh ten thousand) and entered into an agreement after receiving a sum of Rs. 51,000/- as advance consideration. Defendants appeared and contested the suit. Defendant no. 2 in his written statement has stated that he has purchased the suit property on 13.3.2004 by virtue of registered sale deed executed by defendant no. 1. Defendant no. 1 also denied execution of the agreement and receipt of advance money. 4. Plaintiff filed a petition on 1.12.2007 under Order VI, Rule 17 of the Code of Civil Procedure for amendment of the plaint by introducing some more facts i.e. defendant no. 1 further received a sum of Rs. 30,000/- in April, 1999 and Rs. 29,000/- in December, 2001 and gave assurance to execute the sale deed. Defendant no. 2 seriously objected the said prayer by filing rejoinder to the same amendment petition. The court below after hearing the parties allowed the amendment petition. 5. I have heard Mr. Amar Kumar Sinha, learned counsel appearing for the petitioner and Mr. Shekhar Prasad Sinha, leamed counsel appearing for the respondents. 6. The court below although referred and considered series of judgments on the point of amendment of pleading but totally failed to consider the elementary principle of law in the matter of amendment of pleading. Admittedly, the suit was filed in the. year 2004 making specific pleading that a sum of Rs. 51,000/- was paid as advance consideration. 6. The court below although referred and considered series of judgments on the point of amendment of pleading but totally failed to consider the elementary principle of law in the matter of amendment of pleading. Admittedly, the suit was filed in the. year 2004 making specific pleading that a sum of Rs. 51,000/- was paid as advance consideration. There was no pleading that further amount of Rs. 30,000/- was paid in April, 1999 and Rs. 29,000/- was paid in December, 2001. After the issues were settled, plaintiff examined all the witnesses and closed his evidence. Defendants also examined more than five witnesses. It was at this stage, amendment petition was filed. In my view, after the amendments brought in Code of Civil Procedure by C.P.C. 1999 amendment and C.P.C. 2002 amendment, petition filed by plaintiff for amendment of plaint by inserting those facts which were available to the plaintiff before institution of the suit ought to have outrightly rejected by the court below. In view, the court below has committed grave error of law in allowing amendment petition. 7. For the reasons aforesaid, this writ application is allowed and the impugned order is set aside.