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2017 DIGILAW 2704 (ALL)

Maya Devi v. Jagpal Singh

2017-11-22

SANGEETA CHANDRA

body2017
JUDGMENT : 1. This writ petition has been filed by the petitioner challenging the judgment and order dated 23.11.2012 passed by the Additional District Judge, Court No.3, Bareilly in Appeal No. 24 of 2009 Maya Devi Vs. Jagpal Singh by which paragraph 2 of the amendment application proposing to make amendment in the pleadings in the original suit has been rejected, and with a further prayer that the learned Court below be directed to allow the petitioner / plaintiff for making amendment as sought in her amendment application. 2. Learned counsel for the petitioner while arguing the matter has pointed out that the defendant / respondent no. 1 was a co-tenure holder of Gata No. 114, measuring 4.558 hectare, of which he was holding 1/12 share situated at village Mirzapur, Pargana Faridpur, District Bareilly. The respondent no. 1 executed an agreement to sell his share of the aforesaid land on a consideration of Rs. 64,000/-in favour of the petitioner and the petitioner paid Rs. 20,000/-as advance on 19.7.2001 and an agreement to sell was also executed by the respondent no. 1 in favour of the petitioner, which was registered. In the said agreement to sell, it was provided that the respondent no. 1 shall execute the sale deed in favour of the petitioner after taking the balance amount for her upto 10.6.2002. 3. It is the case of the petitioner that she repeatedly requested the respondent no. 1 to take the balance amount, but he kept on delaying the matter and on 16.7.2002 and 19.7.2002, the petitioner sent registered notices to the respondent no.1 for executing the sale deed and again on 24.8.2002 another notice was served, but the respondent no.1 did not turn up in the office of the Sub-Registrar, Faridpur, Bareilly for executing the sale deed. The petitioner thereafter filed civil suit in the Court of Civil Judge (Senior Division), Bareilly and sought relief of a decree for specific performance, and for a direction to the respondent no. 1 to execute the sale deed in favour of the petitioner in view of agreement dated 19.7.2001 of 1/12 share of Gata No. 114 situated at village Mirzapur, District Bareilly. 4. After exchange of affidavits, the trial court framed 11 issues on the basis of pleadings of both the parties, of which issue no. 1 was whether the respondent no. 1 to execute the sale deed in favour of the petitioner in view of agreement dated 19.7.2001 of 1/12 share of Gata No. 114 situated at village Mirzapur, District Bareilly. 4. After exchange of affidavits, the trial court framed 11 issues on the basis of pleadings of both the parties, of which issue no. 1 was whether the respondent no. 1 had indeed executed an agreement to sell on 19.7.2001 and issue no. 2 was whether the petitioner was ready and willing to perform her part of the said agreement with regard to execution of sale deed. The trial court decided issue nos. 1 & 2 in favour of the petitioner and also that the respondent no. 1 had received Rs. 20,000/-as advance, but by the judgment and order dated 16.3.2009, the trial court found that now such sale could not be directed to be executed as the respondent no. 1 has already sold off the land to somebody else and directed for return of Rs. 20,000/-to the petitioner Against the judgment and order dated 16.3.2009, the petitioner filed an Appeal No. 24 of 2009 Maya Devi Vs. Jagpal Singh on 17.4.2009 before the District Judge, Bareilly. The petitioner thereafter moved an amendment application under Order 6, Rule XVII read with section 151 of the CPC in the Appeal, whereby she sought to amend certain paragraphs in the plaint. 5. It is the case of the petitioner that pleadings with regard to delaying-tactics adopted by respondent no. 1 were already on record of the plaint in Original Suit No. 6 of 2003 and only to buttress such pleading, certain facts were proposed to be added, for example, various dates on which the petitioner tried to approach the respondent no. 1 for fulfilling his part of the agreement to sell and the dates on which the respondent no. 1 refused such execution of sale deed. 6. Learned District Judge, however in the judgment and order impugned before this Court has found that there were no pleadings on record of the plaint, and therefore, paragraph 2 as proposed in the Amendment Application by the petitioner could not be added by means of amendment to the plaint now at such belated stage when evidence had been led already by both the parties, and suit had been decided against the plaintiff / petitioner. 7. 7. Learned counsel for the petitioner has also pointed out the perversity in the judgment and order dated 23.11.2012, where he has held that issue nos. 1 & 2 have not been decided in favour of the plaintiff / petitioner. He has led this Court through the averments made in the plaint and also the judgment of the learned Court below, wherein there was a specific pleading that the petitioner repeatedly approached the respondent no. 1 to execute the sale deed and there was also a finding on issue nos. 1 & 2 in favour of the petitioner / plaintiff. 8. Learned counsel for the petitioner has also relied upon a judgment rendered by the Hon'ble Supreme Court in the case of Lakhi Ram (Dead) through LRS. Vs. Trikha Ram & others 1998 (2) SCC 720 to argue that the Hon'ble Supreme Court in the aforesaid case has allowed amendment in a suit for specific performance of agreement to sell for incorporation of certain pleadings to show that the plaintiff was ready to perform his part of the agreement all along and had approached the respondent therein. The Supreme Court had held that allowing such amendment does not change the nature of the case or the cause of action. 9. It is the case of the petitioner that pleadings were already on record and only certain dates had to be added by the proposed addition of paragraph 2 to the plaint in the suit by means of the amendment application, which has arbitrarily being rejected by the learned District Judge in the order impugned. 10. Learned counsel for the respondents on the other hand has pointed out preliminary objections regarding the maintainability of this application under Article 227 of the Constitution saying that statutory remedy of filing Revision under Section 115 of the CPC is available to the petitioner. 11. He has also referred to a judgment rendered in Civil Revision No. 133 of 2015 (Pramendra Nath Singh Vs. Shanker Govind Getha & 3 others) decided on 6.11.2017 that the plaintiff was duty bound to make amendments and he says that in a similar matter where amendment application was filed by the plaintiff was rejected by the learned Court below, a Revision was entertained by this Court, and it is his case that the petitioner should have approached this Court in Revision under Section 115 of the CPC. 12. 12. Learned counsel for the petitioner has however relied upon the proviso to Section 115 added by way of amendment in 2002, which proviso would not make such Revision entertainable by this Court. Section 115 of the CPC is being quoted herein below:- "115. Revision.-(1) The High Court may call for the record of any case which has been decide by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears— (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:— Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. (2) The High Court shall not, under this section vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto. (3) A revision shall not operate as a stay of suitor other proceeding before the Court except where such suit or other proceeding is stayed by the High Court. Explanation.-In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a Suit or other proceeding." 13. From a bare perusal of the proviso added by way of amendment w.e.f. 1.7.2002, it is evident that the High Court shall not reverse any order deciding an issue in the suit, or other proceedings (which would include the proceeding in Appeal) accept where the order if it had been made in favour of the party applying for Revision, would have finally disposed of the suit or other proceedings. 14. In this case rejection of amendment application was an order passed at the interlocutory stage and would not have rendered the suit or the Appeal to be finally disposed of headed being passed in favour of the plaintiff / revisionist herein. 15. 14. In this case rejection of amendment application was an order passed at the interlocutory stage and would not have rendered the suit or the Appeal to be finally disposed of headed being passed in favour of the plaintiff / revisionist herein. 15. From a bare perusal of the amended provision of Section 115 of the CPC, it is evident that Revision in such cases is not maintainable after amending of the code. Only an application under Article 227 would be maintainable against interlocutory order. In this Case, the order passed by the learned District Judge is an interlocutory order and it has rejected the proposed amendment application of the petitioner in so far as it proposed to add paragraph 2 to the pleadings in the plaint of Original Suit No. 6 of 2003. 16. This Court is of the considered opinion that application under Article 227 of the Constitution for exercise of supervisory jurisdiction in this case is maintainable. 17. Learned counsel for the respondents has further argued on the basis of judgment rendered by the Hon'ble Supreme Court in the case of J. Samuel & others Vs. Gattu Mahesh & others reported in 2012 (2) SCC 300 that in a suit for specific performance of contract of sale of property specific averment that the plaintiff was always ready and willing to perform his part of the contract, which is essential under Section 16(c) of the Specific Relief Act, and Appendix-A Form 47, for maintaining a suit, cannot be sought to be added by way of amendment in the plaint after the suit is filed and delay in such cases cannot be excused as due diligence is required from the plaintiff. 18. The learned counsel for the petitioner has shown that sufficient pleadings were on record regarding readiness and willingness of the plaintiff and therefore issue nos. 1 & 2 have been decided in favour of the plaintiff / petitioner. 19. This Court is of the considered opinion that learned counsel for the petitioner has succeeded the perversity in the findings recorded by the learned Additional District Judge and the order impugned deserves to be set aside and the matter remanded back for fresh consideration on the amendment application so moved by the petitioner before the learned Appellate Court. The impugned order dated 23.11.2012 is set aside. 20. The writ petition is allowed to this extent. 21. The impugned order dated 23.11.2012 is set aside. 20. The writ petition is allowed to this extent. 21. Learned Appellate Court is directed to consider afresh the amendment application moved by the petitioner / appellant before him.