Research › Search › Judgment

Jharkhand High Court · body

2011 DIGILAW 56 (JHR)

Subhash Khanna v. Gauri Devi Rathod

2011-01-28

POONAM SRIVASTAVA

body2011
ORDER Poonam Srivastav, J. 1. Heard respective counsels for the Plaintiff- Petitioner and the Defendants-Respondents. Pleadings have been exchanged and as agreed between the parties, this writ petition is being decided finally at the stage of admission itself. 2. The instant writ petition has been preferred by the Petitioner challenging the order dated 23rd August, 2010 (Annexure 3) passed by the Subordinate Judge-XI, Ranchi in Title Suit No. 151 of 1993. Original Title Suit No. 151 of 1993 was instituted for specific performance of an agreement of sale dated 7th September, 1990 in respect of the suit property for a total amount of Rs. 4,01,000.00 and earnest money of Rs. 2,70,000.00 was deposited. There was another agreement of sale dated 9th September, 1990 and the Plaintiff-Petitioner instituted a second suit being Title Suit No. 176 of 1993 for specific performance of the agreement of sale. Title Suit No. 176 of 1993 was contested by Supreme Court No. 9 on the ground that he was a minor on the date of execution of the agreement and, therefore, the agreement is not enforceable under the Contract Act and Title Suit No. 176 of 1993 was dismissed on this basis. The Plaintiff-Appellant filed appeal being Title Appeal No. 28 of 2002 which was allowed on the ground that the Pawan Kumar Rathod was major on the date of agreement. Consequent to allowing of the appeal, an amendment application was preferred by the Plaintiff-Petitioner for amending and adding paragraph 12(a) in the plaint. This amendment application was accompanied with a decree passed in Title Appeal No. 28 of 2002. The Court below rejected the amendment application vide Annexure 1 on the ground that second appeal is still pending and the finding had not attained finality. This order refusing amendment is challenged in the instant writ petition. 3. Mr. P.K. Prasad, learned senior counsel appearing on behalf of the Petitioner, has placed reliance on a decision of the Apex Court is Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. 2006 (3) JCR 58 (SC): (2006) 4 SCC 385 . 4. Mr. Rajan Raj, learned Counsel appearing on behalf of the Respondents objected to the amendment. However, the objection is primarily on the ground that the alleged agreement is forged and fabricated document. v. K.K. Modi and Ors. 2006 (3) JCR 58 (SC): (2006) 4 SCC 385 . 4. Mr. Rajan Raj, learned Counsel appearing on behalf of the Respondents objected to the amendment. However, the objection is primarily on the ground that the alleged agreement is forged and fabricated document. The Respondents have disputed the fact that Title Suit No. 151 of 1993 was instituted only between the Plaintiff and Defendant No. 9-Pawan Rathod. It has specifically been contended that the Petitioner conceded the fact that the judgment dated 22nd June, 2004 passed in Title Appeal No. 28 of 2002 has been stayed by the High Court and, therefore, the amendment sought in the plaint is uncalled for as the matter is still sub-judice and it will have a far reaching effect on the merits of the case which are to be decided on the facts pleaded. Any addition on the basis of a judgment in another suit, may be one the same issue, as to whether Defendant No. 9 was a major or not on the relevant date, cannot be allowed since the second appeal is still pending and the amendment sought has not attained finality, since the appellate order has been stayed. The decision cited by the learned senior counsel for the Petitioner in Rajesh Kumar Aggarwal (supra), relates to an amendment under Order VI, Rule 17 read with Section 151 of the Code of Civil Procedure seeking leave of the Court to amend the plaint, but the facts are altogether different. 5. I have gone through the judgment. The amendment in the aforesaid case decided by the Apex Court was after the stage of appeal in another suit but not during the pendency of the second appeal and especially the execution of the order was stayed. The object of Order VI, Rule 17 of the Code of Code of Civil Procedure is that the Court should try the merits of the case that comes before it and the amendment should ordinarily be allowed if it pertains for determining the real question of controversy between the parties. The object of Order VI, Rule 17 of the Code of Code of Civil Procedure is that the Court should try the merits of the case that comes before it and the amendment should ordinarily be allowed if it pertains for determining the real question of controversy between the parties. The Apex Court as well as the various High Courts were generally in favour of allowing the amendment, essentially because rule of justice, equity and good conscience is to be exercised in the larger interest to attain complete justice to the parties but in the event it causes prejudice to one of the parties. The Court has to decide the suitability of allowing or disallowing the amendment on the facts of each case. The amendment application was rejected by the Court below supposedly because the question, that Defendant No. 9 has become major or not, is yet to be decided by the High Court. The question of majority is to be decided in both the suits. Therefore, I am of the view that the Court below did not commit any illegality in rejecting the amendment application but, at the same time, it is necessary that it should not proceed to decide the issue of "attaining majority" of Respondent No. 9 on the relevant date i.e. on the date of which the agreement was executed and there may not arise any anomaly. 6. In the facts and circumstances of the case, I am not inclined to quash the order passed by the learned Court below till the second appeal pending in this Court is decided finally. The parties shall take steps to get the second appeal decided so that the controversy may be set at rest, in the event, the question of age of Respondent No. 9 is conclusively decided. The parties shall be at liberty to move the Court afresh for amendment. No doubt the suit pertains to the year 1993, but since the question involved in both the suits is one and the same, it will amount to only waste of time in arriving at a conflicting conclusion. 7. This writ petition is, accordingly, disposed of with the direction to the trial Court that the trial of Title Suit No. 151 of 1993 shall await the decision of second appeal which the respective parties will take steps to get it decided at an early date. 7. This writ petition is, accordingly, disposed of with the direction to the trial Court that the trial of Title Suit No. 151 of 1993 shall await the decision of second appeal which the respective parties will take steps to get it decided at an early date. With the aforesaid observation, this writ petition stands finally disposed of.