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2019 DIGILAW 1722 (ALL)

Sushila Devi v. Deewan Chand

2019-07-17

MANOJ KUMAR GUPTA

body2019
JUDGMENT : MANOJ KUMAR GUPTA, J. 1. The instant petition is directed against the order dated 27.09.2016 passed by the District Judge, Mainpuri in Civil Revision No. 77 of 2013. The revision has been allowed and the order passed by the trial court dated 26.09.2013 allowing application 79-ka-1 of defendant No.1 for amending the written statement has been set aside. 2. The first respondent instituted a suit bearing No. 49 of 2005 against the petitioner for specific performance of an agreement to sell dated 02.12.2003. According to the plaint assertions, the petitioner agreed to sell the suit property and accordingly entered into an agreement to sell dated 02.12.2003 whereunder the total sale consideration to be paid was Rs. 2,00,000/- out of which Rs. 95,000/- was paid as earnest money. It was also the case of the plaintiff that after execution of the agreement, a further sum of Rs. 1,00,000/- was paid to the petitioner against receipt dated 13.02.2004. Thus, according to the plaintiff, only Rs. 5,000/- remained unpaid. It seems that soon after gaining knowledge of the suit, the petitioner executed a sale deed dated 31.05.2005 of the suit property in favour of Shiv Pratap Singh, the second respondent. The petitioner filed written statement in the suit on 25.07.2005 wherein she took a stand that the alleged agreement is a sham document. No money was paid to her under the said agreement. There was also no agreement for sale of the property but the plaintiff by misrepresenting that the defendant has to be witness in some matter obtained her signature and thumb impressions. Thus, the very execution of the agreement for sale was denied. The petitioner filed an additional written statement dated 23.04.2007 in which she reiterated the stand taken in the original written statement that in fact there was no agreement as alleged. 3. The second respondent who purchased the property from the petitioner during pendency of the suit was impleaded as defendant No.2. He filed his written statement on 16.05.2007 reiterating the stand taken by the petitioner in her written statement that her signatures were obtained by misrepresentation and in fact there was no agreement for sale between the parties nor any money was paid to her under the said agreement. 4. He filed his written statement on 16.05.2007 reiterating the stand taken by the petitioner in her written statement that her signatures were obtained by misrepresentation and in fact there was no agreement for sale between the parties nor any money was paid to her under the said agreement. 4. After commencement of the trial, the petitioner filed an application seeking amendment in the written statement to incorporate a plea that she is ready to return money paid to her under the alleged agreement to the plaintiff. The amendment was rejected by the trial court by order dated 08.07.2013 and the matter was fixed for recording of the remaining evidence of the defendant. The order rejecting the amendment application dated 08.07.2013 was not challenged before any higher court. On the other hand, the petitioner filed another application dated 22.07.2013 once again seeking amendment in the written statement. This time, the plea sought to be introduced was that sale deed dated 31.05.2005 was executed by the petitioner in favour of defendant No.2 to secure a loan. It confers no right or interest in favour of defendant No.2. It was also alleged that while executing deed dated 31.05.2005, the petitioner had informed defendant No.2 about document dated 13.02.2004 in favour of the plaintiff. He was informed that it was executed to secure Rs. 1,95,000/- taken as loan from the plaintiff. It was also alleged that in pursuance of sale deed in favour of defendant No.2 possession has not been delivered to him and that Rs. 35,000/- had already been returned. She is ready to return the balance amount of Rs. 1,70,000/- to defendant No.2. The sale deed dated 31.05.2005 is void and hit by lispendens. The petitioner has no other house and consequently plaintiff is not entitled to decree of specific performance and the suit is barred by Section 16 (c) of the Specific Performance Act. The trial court allowed the amendment application by order dated 26.09.2013 and aggrieved whereby the plaintiff filed Civil Revision No. 77 of 2013 which has been allowed by the revisional court by order dated 27.09.2016 impugned herein. 5. Learned counsel for the petitioner submitted that the revisional court has allowed the revision primarily on the ground that principles of res-judicata did not permit trial court to allow the second amendment application, but without considering that the second amendment application was on entirely different pleas. 5. Learned counsel for the petitioner submitted that the revisional court has allowed the revision primarily on the ground that principles of res-judicata did not permit trial court to allow the second amendment application, but without considering that the second amendment application was on entirely different pleas. Thus, according to him, rejection of the first amendment application will not operate as res-judicata. 6. Learned counsel for the plaintiff respondent, on the other hand, submitted that the second amendment application was wholly frivolous and malafide. The trial had commenced long back and it was at the stage of cross-examination of DW-2 when the application was filed, therefore it was barred under proviso to Order 6 Rule 17 C.P.C. as substituted by Act No. 22 of 2002. He further submitted that the second amendment application amounts to changing the case set up in the original written statement, therefore even otherwise, the same could not have been allowed. 7. It is not in dispute that when the second amendment application was filed, the suit was pending on the stage of cross-examination of DW-2. Order 6 Rule 17 C.P.C. as amended by Act No. 22 of 2002 provides that "no application for amendment shall be allowed after the trial is commenced, unless the Court comes to the conclusion that inspite of due diligence, party could not have raised the matter before the commencement of trial". The reason disclosed in the application for not being able to raise the pleas in the beginning is that the previous counsel despite being informed about entire facts did not incorporate the same in the written statement. Thus, it is not in dispute that the pleas now sought to be introduced were in the knowledge of the petitioner since the very beginning and even before the written statement was filed. The explanation given by the petitioner for not being able to raise the pleas before commencement of the trial does not fall under the exception carved out under the proviso to Order 6 Rule 17 C.P.C. Had due diligence been exercised, the plea could have been raised before the commencement of the trial. 8. There is another reason why the amendment does not deserve to be allowed. The amendments in pleadings are allowed to determine the real question in controversy between the parties. 8. There is another reason why the amendment does not deserve to be allowed. The amendments in pleadings are allowed to determine the real question in controversy between the parties. By the amendment sought, the petitioner primarily wanted to raise plea to the effect that the sale deed dated 31.05.2005 executed by her in favour of defendant No.2 was by way of security and therefore possession was not delivered to defendant No.2. She also tried to contend that the sale deed in question is thus void in the eyes of law. The suit is for specific performance of agreement of sale allegedly executed by the petitioner in favour of the plaintiff respondent. The issue as to whether sale deed dated 31.05.2005 executed by the petitioner during pendency of the suit in favour of second respondent confers any title in his favour is not an issue in the instant suit. The trial court would not decide dispute between two defendants in a suit instituted by the plaintiff-respondent for specific performance of agreement of sale. Thus in my opinion, even otherwise, the amendment sought was not necessary to determine the issues arising out in the suit and the trial court acted with material irregularities in exercise of its jurisdiction in ignoring the said aspect while allow the amendment application. 9. There is another aspect of the matter. In the original written statement, the petitioner has denied having executed any agreement of sale in favour of the plaintiff respondent. Her specific case was that her signatures were obtained by misrepresenting that she had to act as a witness. However, the plea which is now sought to be introduced by amendment would show that the petitioner admits that the deed was duly executed between the parties and she had also received money thereunder, which she is ready to return. Thus, a new case is sought to be set up in this regard by the petitioner through amendment which has rightly been declined by the revisional court. 10. No doubt, the amendment now sought is not same as was sought earlier and to that extent the observation made by the revisional court may not be correct, but for the reasons spelt out above, this court reaches to the same conclusion. Accordingly, this Court declines to interfere with the impugned order in exercise of supervisory power under Article 227 of the Constitution. 11. Accordingly, this Court declines to interfere with the impugned order in exercise of supervisory power under Article 227 of the Constitution. 11. The petition is dismissed.