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Himachal Pradesh High Court · body

2013 DIGILAW 179 (HP)

Sittu Khan v. Hussan Bano

2013-03-13

KULDIP SINGH

body2013
JUDGMENT : Kuldip Singh, J. (Oral) This petition is directed against the order dated 31.10.2012 passed by learned Civil Judge (Junior Division), Court No.2, Paonta Sahib, District Sirmaur, Himachal Pradesh in CMA No.232/6 of 12 in Civil Suit No.150/1 of 2009, rejecting the application for amendment of the plaint. 2. The petitioner on 14.12.2009 has filed a suit for recovery of Rs. 1,40,000/- against respondent on the basis of agreement for sale dated 8.4.2009 of 4 bighas land at the rate of Rs. 1,12,500/- per bigha. It has been stated that during the pendency of the suit, the respondent on 29.12.2010 has sold the entire land of her share to Dr. Puran Chand Medical Charitable Trust at the rate of Rs. 92,300/- per bigha. The sale price settled between the petitioner and respondent was Rs. 1,12,500/- per bigha. 3. The petitioner by way of amendment intends to add para-6A in the plaint and wants to take the plea that respondent on 29.12.2010 had sold the entire land to Dr. Puran Chand Medical Charitable Trust at the rate of Rs. 92,300/- per bigha. The sale price settled between the petitioner and respondent was Rs. 1,12,500/- and after gap of about two years the respondent sold the same at a lesser price which clearly shows that the land in possession of the respondent is inferior. 4. The present owner who purchased the land is a very rich person and he had made the arrangement to divert the flow of the water and had made the land fit for use and for construction of the Engineering College. The real intention of the respondent from the very beginning was to harass the petitioner and in order to frustrate the agreement of sale, she took inferior land in partition proceedings and now sold the same at a lesser price to the third party. Therefore, the respondent has no right to forfeit the money of the petitioner and she is liable to return the money so received by her vide agreement in question. 5. The learned counsel for the petitioner has submitted that the case is now fixed for arguments on 15.3.2013. The application is dated 1.9.2011 whereas sale deed is dated 29.12.2010. The registration of sale deed is notice to public. It appears from the impugned order that the application for amendment was moved at the stage when the suit was already fixed for arguments. The application is dated 1.9.2011 whereas sale deed is dated 29.12.2010. The registration of sale deed is notice to public. It appears from the impugned order that the application for amendment was moved at the stage when the suit was already fixed for arguments. There is no averment in the application that the application was moved immediately when the suit land was sold by respondent No.1 to Dr. Puran Chand Medical Charitable Trust. There is complete absence of averment of due diligence in the application. The copy of impugned order was delivered on 1.12.2012 and petition has been filed on 7.3.2013. 6. In addition, the suit is for recovery of Rs. 1,40,000/- on the basis of agreement of sale dated 8.4.2009. The petitioner intends to amend the plaint on the basis of sale consideration mentioned in the sale deed dated 29.12.2010. The proposed amendment is not necessary in order to adjudicate the real controversy between the parties when the suit is based upon agreement of sale dated 8.4.2009. The Court below has considered the application rightly. There is no merit in the petition which is accordingly dismissed so also the pending application.