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2014 DIGILAW 427 (UTT)

Upendra Dutt Sharma v. Rupchand

2014-09-25

ALOK SINGH

body2014
Judgment Alok Singh, J. (Oral) O.S. No. 56 was filed for specific performance of the contract against the defendants/petitioners, herein, on the basis of agreement to sell dated 02.06.1994. In a suit for specific performance, defendants/petitioners, herein, pleaded that alleged agreement to sell dated 02.06.1994 is an outcome of fraud and misrepresentation and, therefore, cannot be enforced. During the pendency of the suit, defendants/petitioners, herein, moved an amendment application under Order 6 Rule 17 C.P.C. seeking permission to incorporate the pleadings to the effect that prior to the alleged agreement to sell dated 02.06.1994, another registered agreement to sell dated 07.06.1993 was executed between the parties; earlier agreement to sell dated 07.06.1993 was pertaining to the property of Khasra no. 130 and 147, wherein it was mentioned that defendants/petitioners, herein, were having only 1/3rd share. It was further sought to be incorporated by way of amendment that during the validity period of earlier agreement to sell dated 07.06.1993, there was no occasion for the defendants/petitioners, herein, to have entered to the subsequent agreement dated 02.06.1994, mentioning that defendants/petitioner, herein, were owner of entire share of the property agreed to be soled. Amendment application so moved by the defendant/petitioners, herein, was dismissed by the learned Trial Court vide order dated 10.09.2012 on the ground that existence of previous agreement to sell dated 07.06.1993 may not affect the right of the plaintiffs based upon the subsequent agreement to sell dated 02.06.1994. Therefore, amendment sought is totally unnecessary for the fair adjudication of the case. Defendants/petitioner, herein, preferred a Civil Revision No. 78 of 2012 before the District Judge, Haridwar, assailing the order darted 10.09.202, whereby amendment application was rejected. However, Civil Revision so preferred by the defendants/petitioners, herein, was also dismissed by the Revisional Court vide order dated 06.09.2014. Feeling aggrieved, defendants/petitioners, herein, have preferred present writ petition. I have heard Mr. M.S. Tyagi, learned counsel for the defendants/petitioners, herein, and Mr. P.K. Chauhan, learned counsel for the respondent no. 4 one of LR of the original plaintiff and have carefully perused the record. Feeling aggrieved, defendants/petitioners, herein, have preferred present writ petition. I have heard Mr. M.S. Tyagi, learned counsel for the defendants/petitioners, herein, and Mr. P.K. Chauhan, learned counsel for the respondent no. 4 one of LR of the original plaintiff and have carefully perused the record. Since, execution and existence of earlier agreement to sell dated 07.06.1993 between the defendants and original plaintiff is not in dispute, therefore, while deciding the suit finally, learned Trial Court obviously shall look into the question as to whether present defendants were having only 1/3rd share in the property, in question, and applying the principle that none can transfer title better than he himself had, could have entered into the subsequent agreement to sell dated 02.06.1994 for entire property. In my considered opinion, learned Revisional Court is correct in saying that since plaintiff could not explain as to why despite due diligence, pleading sought to be taken by the amendment, was not taken in the original pleading. Therefore, I am not inclined to take contrary view to the view taken by the learned Revisional Court. However, in view of the observation made, hereinabove, it goes without saying that learned Trial Court while deciding the suit finally shall take into consideration the effect of the earlier agreement to sell as well as the total share of the defendants in the property in question. With these observations, petition stands disposed of. CLMA No. 10909 of 2014 also stands disposed of accordingly.