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2014 DIGILAW 1434 (PNJ)

Mehar Singh v. Surinder Kumar

2014-10-16

G.S.SANDHAWALIA

body2014
JUDGMENT Mr. G.S. Sandhawalia, J. (Oral):- The present revision petition filed by the defendant-petitioner is directed against the order dated 12.08.2014 (Annexure P-6) passed by the Civil Judge (Jr. Divn.), Ludhiana whereby, the application under Order 6 Rule 17 CPC for amendment of the plaint and under Order 1 Rule 10(2) CPC for impleadment of Gurpreet Singh and Surinder Kaur, son and wife of the present petitioner, has been allowed. The reasoning given by the Trial Court is that after the evidence had been completed, the defendant had tendered two gift deeds dated 04.02.2010 and 03.03.2010 in favour of the above said persons and, therefore, the amendment was allowed in order to challenge the said gift deeds which were not found mentioned in the written statement filed by the present petitioner-defendant. 2. A perusal of the paper book would go on to show that in the suit for specific performance of an agreement dated 12.10.2001, the case of the respondent-plaintiff was that property bearing Plot No. 806 measuring 300 square yards situated at Industrial Area-B, Ludhiana had been agreed to be sold for consideration of Rs. 20,50,000/-. A sum of Rs.12,00,000/- as earnest money was paid and the date was fixed as 31.03.2002. There was some litigation in the name of Chatrath Hardware vs. Chanan Singh, which was pending and assurances were given for executing the sale deed. Eventually, the suit was filed on 03.08.2011. 3. In the defence taken by the petitioner-defendant as per the written statement dated 04.11.2011, there was no whisper of any gift deeds regarding the property in question. After evidence had been concluded and the Court had closed the defence evidence by order, the petitioner tendered two certified copies of the gift deeds in favour of his son and wife which were of February, 2010 and March, 2010. In such circumstances, the application for amendment under Order 6 Rule 17 CPC was filed submitting that apart from adding the said persons as defendants no. 2 and 3, the prayer for declaration that the gift deeds were void and sham be also incorporated in the prayer clause as it would be necessary to enable the Court effectively and completely adjudicate and settle all the questions involved in the suit. The plea was that the amendment was necessary for determining the real question of controversy between the parties. The plea was that the amendment was necessary for determining the real question of controversy between the parties. The said application was opposed on the ground that it was not maintainable and the suit was time barred and the evidence having been completed and at the fag end of the trial and the case being fixed for final arguments, the plaintiff was estopped from seeking the alleged amendment. The Trial Court noticed the facts summarized above regarding the non mentioning of the gift deeds in the written statement and came to the conclusion that the said documents had been withheld by the defendant. The amendment sought was for proper adjudication of the rights of the parties and to avoid multiplicity of litigation allowed the applications vide the impugned order dated 12.08.2014 which is now the subject matter of challenge. 4. Counsel for the petitioner has vehemently submitted that under Section 15(a) of The Specific Relief Act, 1963, the specific performance of the contract may be obtained by any party thereto and placed reliance upon the judgment of the Apex Court in Bharat Karsondas Thakkar vs. M/s. Kiran Construction Co. and others, [2008(5) Law Herald (SC) 3067] : 2008 AIR (SC) 2134. It is accordingly submitted that persons who are not party to the contract in the suit for specific performance have been impleaded and, therefore, the order of the Trial Court was not justified. It is submitted that once the evidence has been concluded under the proviso of Order 6 Rule 17, CPC, the amendment was not to be allowed since trial has commenced. 5. After hearing counsel for the petitioner, this Court is of the opinion that there is no scope for interference in the well justified and reasoned order passed by the Trial Court. It is settled principle that the power to allow amendment is wide and can be exercised at any stage in the interest of justice. The main purpose of allowing the amendment is to minimize the litigation and to determine the real question of controversy between the parties. The plea taken that it would change the nature of the suit is also without any basis. In the written statement, no such fact was mentioned as the gift deeds were prior to the filing of the suit. The plea taken that it would change the nature of the suit is also without any basis. In the written statement, no such fact was mentioned as the gift deeds were prior to the filing of the suit. If such a plea had been taken, the plaintiff would have immediately amended the suit at the initial stage itself. It is the defendant himself who is responsible for the delay in filing of the application as the plaintiff was unaware that the gift deeds had been executed. The gift deeds are also within the family and, therefore, it has rightly been alleged that they are collusive and sham. The question of limitation that the agreement was of 2001 is to be decided on the basis of evidence, which has been adduced and will be adduced before the Trial Court in view of the amendment allowed as it is not for this Court to opine upon it at this stage. The Apex Court has time and again held that to allow the amendment, there has to be a due diligence. In the present case, as noticed, the plaintiff was never aware of such an exercise of having been carried out by the defendants of gifting the property in order to defeat the agreement. The primary duty of the Court is to decide whether the amendment is necessary to contest the real dispute between the parties. To deny such an amendment would only drive the parties to another round of litigation for seeking the relief of cancellation of the gift deeds in separate proceedings. The Apex Court in Rajesh Kumar Aggarwal and others vs. K.K. Modi and others, 2006 (4) SCC 385 has held that the issue of the real question in controversy is to be determined and that no prejudice should be caused to the other side. The relevant observations read thus:- “This rule declares that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The proviso enacts that no application for amendment should be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter for which amendment is sought before the commencement of the trial. 13. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 14. Order 6 Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. 15. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit. 16. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. 17. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case.” 6. The principles on amendment of pleadings have been further laid down by the Apex Court in Abdul Rehman and another vs. Mohd. Ruldu and others, [2012(6) Law Herald (SC) 4726 : 2012(4) Law Herald (P&H) 3486 (SC)] : 2012 (11) SCC 341 . Relevant observations read thus:- “7. It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them. The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 8. The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimize the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel and Others vs. Gattu Mahesh and Others, [2012(1) Law Herald (SC) 700] : (2012) 2 SCC 300 and Rameshkumar Agarwal vs. Rajmala Exports Pvt. Ltd. and Others, (2012) 5 SCC 337 . Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment.” 7. The judgment which has been relied upon by the petitioner in Bharat Karsondas Thakkar’s case (supra) is not applicable in the facts and circumstances since in the said case, the issue in question was that whether the third party could be introduced in dispute as a plaintiff regarding a suit for specific performance of an agreement to which he was not a party. In the present case, the impleadment has been required so that effective relief can be granted to the plaintiff in the suit since even if he had been successful in the decree for specific performance, in the absence of challenge to the gift deeds, he would get no benefit and neither could seek the relief of possession since Gurpreet Singh and Surinder Kaur were not party. In such circumstances, the application under Order 1 Rule 10 CPC was rightly allowed so that the Trial Court could effectively adjudicate on the real controversy in question by impleading the necessary parties. 8. In such circumstances, the application under Order 1 Rule 10 CPC was rightly allowed so that the Trial Court could effectively adjudicate on the real controversy in question by impleading the necessary parties. 8. In such circumstances, this Court is of the opinion that the order passed by the Trial Court is well justified and warrants no interference since it suffers from no illegality or irregularity and the Court would have no lack of jurisdiction and the present revision petition is dismissed. 9. It is made clear that anything said herein in the present order is only for the purpose of deciding the present revision petition and the Trial Court shall not be prejudiced by any observations made herein while deciding the main suit. ---------0.B.S.0------------ --------------------