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2018 DIGILAW 1522 (JHR)

Tushar Kanti Chatterjee v. Pawan Kumar Agarwal

2018-07-11

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. - The respondent herein who is plaintiff in Title Suit No. 06 of 2008, filed an application for amendment in the plaint which has been allowed by the impugned order dated 04.09.2010. The petitioner - defendant in the suit - is aggrieved of this order. 2. Plea taken by the petitioner is that ignoring the mandatory condition under proviso to Order VI Rule 17 CPC the trial judge has permitted amendment in the plaint. Another plea taken by the petitioner is that a suit which initially was for specific performance of the agreement now would be converted into a suit for declaration of right, title and interest of the parties. 3. Title Suit No. 06 of 2008 was instituted by Pawan Kumar Agarwal for specific performance of oral contract dated 27.06.2006 under which the defendant agreed to execute a sale-deed in respect of Schedule-A property. The defendant resisted the claim of the plaintiff by taking a stand that Schedule-A property was inherited by Tarapado Chatterjee, Amar Kanti Chatterjee and Tushar Kanti Chatterjee and it was registered in their joint name vide Mutation Case No. 80(M) of 2005-06. After death of Tarapado Chatterjee and Amar Kanti Chatterjee, Tushar Kanti Chatterjee was the sole surviving heir and successor of those two persons. Further stand of the defendant is that through his Attorney Tushar Kanti Chatterjee sold the Schedule-A property in favour of Sabita Roy through registered sale-deed dated 29.03.2008. For challenging this sale-deed, the plaintiff filed an application under Order VI Rule 17 CPC for amendment in the plaint which has been allowed by the impugned order. 4. Relief sought in the Title Suit No. 6 of 2008 is for specific performance of oral agreement dated 27.06.2006. The plaint was presented on 19.06.2008 and the defendant filed his written statement on 26.08.2008. On the basis of pleadings of the parties issues were framed and the suit went for trial. After the parties led their evidence and the suit was posted for final hearing, an application for amendment in the plaint was filed by the plaintiff. Proviso to Order VI Rule 17 CPC has been held mandatory. Once execution of sale-deed dated 29.03.2008 in favour of Sabita Roy was disclosed by the defendant in paragraph no. 9(m) of the written statement, it is to be construed in law that plaintiff had knowledge of execution of the aforesaid sale-deed. Proviso to Order VI Rule 17 CPC has been held mandatory. Once execution of sale-deed dated 29.03.2008 in favour of Sabita Roy was disclosed by the defendant in paragraph no. 9(m) of the written statement, it is to be construed in law that plaintiff had knowledge of execution of the aforesaid sale-deed. In his application for amendment the plaintiff has failed to establish his bonafide. It now cannot be pleaded that inspite of due diligence the matter could not have been pleaded by the plaintiff. 5. A bare glance at the impugned order dated 04.09.2010 would disclose that bar on powers of the Court to permit amendment in the pleadings as mandated under proviso to Order VI to Rule 17 CPC has not been considered by the trial judge. There is no explanation by the plaintiff why he could not seek amendment before trial in the suit commenced. In a suit for specific performance of contract, it cannot be pleaded that amendment in the plaint for challenging the sale-deed executed prior to institution of the suit is necessary for deciding the real dispute. Even otherwise, in a suit for specific performance validity of the sale-deed dated 29.03.2008 need not be adjudicated; issue before the court is existence and validity of oral agreement dated 27.06.2006 and whether the plaintiff is entitled for a decree for direction upon the defendant to execute sale-deed in respect of Schedule-A property. Validity or otherwise of sale-deed dated 29.03.2008 is not such a matter which is necessary for adjudicating the real controversy involved in the suit. 6. In the above facts, finding serious infirmity in the impugned order dated 04.09.2010 it is set-aside. The writ petition is allowed. Hearing in Title Suit No. 06 of 2008 shall now commence, in accordance with law.