Research › Search › Judgment

Punjab High Court · body

2014 DIGILAW 1307 (PNJ)

Subhash Arora v. Jagdish Chand

2014-09-17

INDERJIT SINGH

body2014
JUDGMENT Mr. Inderjit Singh, J.:- Petitioner Subhash Arora and others have filed this revision petition against Jagdish Chand contesting respondent and other proforma respondents under Article 227 of the Constitution of India for setting aside the impugned order dated 17.09.2013 passed by learned Addl. Civil Judge (Senior Division), Palwal, allowing amendment in plaint dated 01.12.2007 being a suit for declaration and for permanent injunction and permitting the same to be amended to be a suit for specific performance of Agreement to Sell dated 10.08.1998, on the basis of amendment application dated 02.08.2013, as relief of specific performance was barred by limitation and nature of the suit has been allowed to be changed and as the amendment is not bonafide and is rather malafide. 2. Notice of motion was issued in this case and contestingrespondent No.1 appeared through his counsel and contested the petition. 3. I have heard learned counsel for the parties and have gone through the record. 4. From the record, I find that Jagdish Chand plaintiff filed the suit against the defendant. An application has been filed by the plaintiff under Order 6 Rule 17 CPC by stating that the suit was dismissed in default on 27.11.2009. Plaintiff filed an application for restoration of suit and said application was dismissed on 04.11.2011. Then plaintiff filed civil revision before this Court and the same was accepted on 03.11.2012. Suit was restored subject to payment of costs. On 02.08.2013, it was fixed for filing reply on behalf of defendants. It is further stated that suit was filed by plaintiff for specific performance of contract dated 10.08.1998 by GPA of Nand Lal, father of defendants No.1 to 3 with the plaintiff, for a sale consideration of Rs. 5 lacs regarding suit land and possession of the suit land was handed over to plaintiff on same day. Since then the plaintiff is in cultivating possession of the suit property in furtherance of sale agreement. It is further stated that however, at the time of filing of the suit, previous counsel of plaintiff mentioned the title of suit as one for declaration and permanent injunction as a consequential relief. It was claimed that the defect in title was only a typographical error. In the relief clause, it was clearly mentioned that defendants should be directed to execute sale deed in furtherance of agreement dated 10.08.1998. It was claimed that the defect in title was only a typographical error. In the relief clause, it was clearly mentioned that defendants should be directed to execute sale deed in furtherance of agreement dated 10.08.1998. Therefore, it was pleaded that plaintiff be allowed to change the title of the suit. It was further pleaded that during pendency of the suit, defendants No.1 to 3 executed a sale deed dated 21.05.2010 qua suit property in favour of Smt.Kunti Devi for a sale consideration of Rs.8,66,500/- and plaintiff also wanted to implead subsequent vendee Kunti Devi. 5. Learned Addl. Civil Judge (Senior Division), Palwal vide order dated 17.09.2013 allowed this application by stating that it is suit for specific performance and not for declaration. However, in the head note of the plaint, it is written suit for declaration and permanent injunction as a consequential relief. The perusal of the record shows that copy of the plaint has been placed on record as Annexure P-1. After the mentioning of the name of the parties in the head note of the plaint, it is written as suit for declaration and permanent injunction as a consequential relief and no detailed heading was mentioned in the plaint. The other averments in the plaint are regarding suit for specific performance and even in the prayer clause, decree for symbolic possession by way of specific performance of contract of sale dated 10.08.1998 was prayed to be passed in favour of the plaintiff against the defendant with a direction to defendants to get the sale deed registered in favour of the plaintiff and if the defendants failed to execute the sale deed, in that event, the same to be executed and registered through the Agency of the Court and further a decree of permanent injunction as a consequential relief restraining the defendants from creating any charge over the suit land and from alienating, mortgaging and not to interfere in the peaceful possession of the plaintiff. By seeking this amendment, the plaintiff is not asking for change of any pleading in the plaint. He is only asking for the correction of the heading where it is written as suit for declaration inadvertently. In my view, no prejudice will be caused to the defendants by correcting heading in the plaint. By seeking this amendment, the plaintiff is not asking for change of any pleading in the plaint. He is only asking for the correction of the heading where it is written as suit for declaration inadvertently. In my view, no prejudice will be caused to the defendants by correcting heading in the plaint. Secondly, in no way, it can be held that earlier suit was for declaration and now it has been converted to specific performance. The prayer clause is part of the pleading which asks for a decree for specific performance of the agreement. 6. As regarding the second amendment that during the pendency of the suit, land has been sold to Kunti Devi, therefore, she is necessary party, learned counsel for the petitioner further argued that the Court fee has not been fixed, which is to be affixed for the suit for specific performance. On this point, I find that learned counsel for the respondent argued that the Court fee has already been paid which was required for the suit for specific performance. 7. Learned counsel for the petitioner has cited judgments passed by the Hon’ble Supreme Court in Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Registered) vs. Ramesh Chander and others, 2010 (14) SCC 596 , Pukhraj D. Jain and others vs. G.Gopalakrishna, 2004(7) SCC 251 , Vijendra Kumar Goel vs. Kusum Bhuwania (Smt), 1997(11) SCC 457 and judgments passed by this Court in Manjit Kaur and another vs. Manjit Singh, 2010(1) PLR 537 and Narinder Singh vs. Assa Singh, [2010(2) Law Herald (P&H) 1196] : 2010(3)CivCC 429. I have gone through all these cited judgments and the same having distinguished facts will not apply in the present case as in those cases, the suit was converted whereas in the present case, the suit has not been converted to specific performance. Rather, there was a clerical mistake only in the heading where it was written as suit for declaration. 8. Keeping in the view the above discussion, I find that impugned order dated 17.09.2013 passed by learned Addl. Civil Judge (Senior Division), Palwal is correct and as per law and does not require any interference from this Court and the same is upheld. 9. Therefore, finding no merit in the present revision petition, the same is dismissed. ---------0.B.S.0------------ ----------------------