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Madhya Pradesh High Court · body

2013 DIGILAW 780 (MP)

Ashok Diwan v. Shanti Bai

2013-07-10

A.K.SHRIVASTAVA

body2013
ORDER This petition under Article 227 of Constitution of India has been filed by the plaintiff against the order dated 9-11-2009 passed by learned First Additional District Judge, Khurai in Civil Suit No. 38-A/07 by which his application under Order VI, Rule 17 of Civil Procedure Code for amendment in the plaint has been dismissed. 2. The facts necessary for disposal of this petition lie in a narrow compass. Suffice it to say that a suit for specific performance of contract has been filed by the plaintiff/petitioner on the basis of a document of agreement of sale dated 6-12-2005. According to the plaintiff, first defendant/respondent No. 1, Smt. Shanti Bai entered into an agreement of sale with plaintiff to sell the property in question for a consideration of Rs. 2,00,000/-. The plaintiff paid advance payment of Rs. 50,000/- on 6-12-2005, the date on which document of agreement of sale was written. Since the first defendant did not sale the property in question and has sold it to defendant Nos. 2 and 3 on 23-3-2006 therefore, present suit has been filed for specific performance of the contract. 3. Joint written statement has been filed by all defendants denying the plaintiffs averments. In para (2) there is specific denial that no document in writing of agreement of sale was executed and the same is a fictitious document. The other averments in the plaint have also been denied. In the additional pleadings it has been specifically pleaded by the defendants that alleged agreement of sale said to have been executed on 6-2-2012 is forged document and has been manufactured in order to grab the property of respondent No. 1 who is an old lady of 70 years. 4. Issues have been framed but the evidence is yet to begun. The application under Order VI, Rule 17, Civil Procedure Code is filed by plaintiff/petitioner praying to amend the paras 2, 8 and 10 of the plaint. This application has been rejected by the trial Court by the impugned order. In this manner this petition under Article 227 of the Constitution of India has been filed by the plaintiff. 5. The contention of the learned counsel for the petitioner is that looking to the averments made in the application for amendment it cannot be said that the nature of suit is changed. In this manner this petition under Article 227 of the Constitution of India has been filed by the plaintiff. 5. The contention of the learned counsel for the petitioner is that looking to the averments made in the application for amendment it cannot be said that the nature of suit is changed. It has also been contended by him that indeed the proposed amendment is a clarification in the plaint. Learned counsel further submitted that although in para 2 of the plaint it has been pleaded that a written agreement was executed on 6-12-2005 between plaintiff and first defendant but in fact on this date a written receipt was issued in favour of the petitioner by first defendants which was attested by two witnesses in which the first defendant agreed to sell the property in question to the plaintiff. It is also submitted that the agreement of sale was oral but on 6-12-2005 a receipt was issued by first defendants accepting that she had obtained a sum of Rs. 50,000/- as advance from the plaintiff and balance amount will be received at the time of registration of the sale deed. Learned counsel submitted that Civil Suit is filed in Khurai which is a Tehsil headquarter and therefore strict law of pleading should not be applied and some latitude should be given when the suit is filed at Tehsil level. Learned counsel further submits that the lawyer who is conducting the case has not correctly drafted the plaint and has written that an agreement of sale in writing was executed on 6-12-2005. In support of his contention he has placed reliance upon decision of Supreme Court in the case of Abdul Kadir vs. Madhav Prabhakar, AIR 1962 SC 406 . Hence it has been prayed that amendment application be allowed and impugned order be set aside by allowing this petition. 6. On the other hand Shri Sharma, learned counsel for the defendants/respondent argued in support of the impugned order and submitted that cogent reasons have been assigned by the trial Court rejecting the application and there is no scope for interference under Article 227 of the Constitution of India. He has further submitted that very specifically it has been pleaded by the defendants that no documents of agreement of sale was executed and even if it is filed in the Court it is nothing but a forged document. He has further submitted that very specifically it has been pleaded by the defendants that no documents of agreement of sale was executed and even if it is filed in the Court it is nothing but a forged document. Learned counsel further submits that now the plaintiff wants to withdraw his admission in the plaint that the agreement of sale was in writing and in its place he wants to put altogether a different case by changing the nature of the plaint that agreement of sale took place orally which is not permissible under the law. 7. It has been further propounded by him that there is specific pleading of defendant in para 16 that there is nothing in the plaint to demonstrate when property in question was agreed to be sold and the pleading of plaintiff is totally silent in regard of the description of the property in question. Further it has been put forth by him that application has been filed at a belated stage and it cannot be allowed. Thus, it has been prayed that the petition may be dismissed. 7A. Having hearing learned counsel for the parties, I am of the considered view that amendment application and the petition deserves to be allowed. It appears that suit is in its preliminary stage because evidence is yet to begun and therefore proviso to Order VI, Rule 17 is not attracted, in this case. 8. I have to advert now if the amendment application is allowed whether the nature of suit will be changed and further whether there is any withdrawal of admission of the plaintiff. On a bare perusal of the para 2 of the plaint this Court finds that there is specific pleading in the plaint that a written document of agreement of sale was executed on 6-12-2005 for a consideration of Rs. 2,00,000/- and plaintiff paid a sum of Rs. 50,000/- towards advance money to the first defendant who after receiving the said amount signed the agreement and said that when the plaintiff will pay the balance amount of consideration the sale deed will be executed. However in the amendment application plaintiff is raising the plea that agreement of sale took place orally but after oral transaction of agreement of sale a receipt of Rs. However in the amendment application plaintiff is raising the plea that agreement of sale took place orally but after oral transaction of agreement of sale a receipt of Rs. 50,000/- was issued by the first defendant in favour of the plaintiff/petitioner and further she acknowledged that whenever the balance amount of consideration will be paid to her she will execute the sale deed. 9. On bare perusal of the receipt Annexure P-4, this Court finds that date 6-12-2005 is written and further there is signature of the first defendant. The execution of this document has been denied by the defendant and she has also denied her signature upon it in the written statement, but in the document of receipt dated 6-12-2005 it has been mentioned that she had received a sum of Rs. 50,000/- on 6-12-2005. It is argued by respondents that plaintiff has now changed his stand that the agreement of sale took place orally. However, the date 6-12-2005 which is pleaded in para (2) of the plaint also find place in the said receipt. Hence, this contention of learned counsel for the plaintiff appears to be correct that agreement of sale took place orally although the written receipt was executed on 6-12-2005 upon which the signature of first defendant is there. Indeed instead of pleading in para 2 of the plaint that the document of agreement of sale is in writing, it should have been pleaded that a written receipt acknowledging the receipt of advance money Rs. 50,000/- the defendant had agreed to sell the land. 10. According to me the lawyer who drafted the plaint belong to Tehsil place and suit has been filed in the Civil Court at Tehsil Khurai. Therefore, according to me muffasil pleadings should not be considered too strictly and some latitude should be given to it. In this regard I am placing reliance on the Division Bench decision in the case of Arjunsa vs. Mohanlal, AIR 1937 Nagpur 345. Same view has also been taken by the Supreme Court in Abdul Kadir (supra) which has been relied by the learned counsel for the petitioner/plaintiff. On a bare perusal of the para 10 of the said decision this Court find that the Supreme Court has held that pleadings in muffasil Courts cannot be considered too strictly. Same view has also been taken by the Supreme Court in Abdul Kadir (supra) which has been relied by the learned counsel for the petitioner/plaintiff. On a bare perusal of the para 10 of the said decision this Court find that the Supreme Court has held that pleadings in muffasil Courts cannot be considered too strictly. Thus, I am of the view that if the amendment application of the plaintiff is allowed nature of suit will not change and, therefore, when the trial of the suit is yet to begun the amendment application should not have been rejected. 11. So far as the contention of the learned counsel for the respondent that document of receipt is a forged and first defendant did not sign it nor received any consideration is concerned, suffice it to say that this issue shall be decided by the trial Court after recording the evidence and nothing can be stated in this regard at this stage. 12. For the reasons stated above this petition is allowed, the impugned order is set aside and the amendment application is allowed on payment of cost of Rs. 1000/-. The amount of cost be deposited on or before 19th August, 2013. The defendant shall be free to withdraw the said amount of cost. It is made clear that if the amount of cost is not deposited by 19th August, 2013 the impugned order passed by the trial Court rejecting the application shall stand and this petition shall stand dismissed.