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2019 DIGILAW 210 (PNJ)

Dev Raj Dua v. Madan Lal And Others

2019-01-17

AMIT RAWAL

body2019
JUDGMENT Amit Rawal, J. (Oral) - Costs of Rs. 2000/- as imposed by this Court on 31.5.2018 has since been deposited with the Haryana State Legal Services Authority vide receipt No. 0002041 dated 25.7.2018. 2. Present revision petition is directed against the impugned order dated 27.8.2015 (P.4) whereby the application of the plaintiff-petitioner for amendment of the plaint in a suit for declaration with consequential relief of possession and permanent injunction has been dismissed. 3. The petitioner-plaintiff filed suit for declaration with consequential relief of possession and permanent injunction on the premise that respondent No.1 had entered into agreement to sell dated 15.11.1994 qua suit property for sale consideration of Rs. 48,000/-, which was received by the defendant from the plaintiff and the plaintiff was put in possession of the property but the defendant attempted to dispossess the plaintiff from the suit property. Injunction suit was filed by the plaintiff against respondent defendant No.1, which was decided vide judgment and decree dated 29.1.2014. Plaintiff approached defendant Nos. 2 & 3, who were inducted as tenants over the property of the plaintiff but refused to vacate the house alleging that they had purchased the suit property from defendant No.1 vide sale deed dated 14.12.2010. In such circumstances, cause of action arose for the plaintiff to seek the relief of specific performance with consequential relief of declaration and possession with permanent injunction. The following amendment were sought to be incorporated in para 5(a), 10 as also the prayer clause respectively:- "5(a) That the plaintiff and defendant no.1 entered into an agreement for the sale of the suit property which has been mentioned in para no.1 of the plaint for a sale consideration of Rs. 48,000/- on 15.11.1994 with the defendant No.1 and the defendant No.1 handed over the vacant possession of the plot to the plaintiff after receiving the entire sale consideration and also by giving registered GPA in favour of the son of the plaintiff as the entire payment of sale consideration and it was agreed in the agreement that as and when the plaintiff wants he get the sale deed executed and registered from the defendant no.1. As the plaintiff and defendant no.1 was having very cordial relationship and friendship and no necessity was signing by the plaintiff to get the sale deed executed and registered, when the defendant no.1 became dishonest due to price high he threatened the plaintiff for vacating the premises and civil litigation as well as criminal litigation started between the plaintiff and the defendant no.1, which went about 8-10 years and finally it was decided in the year 2014 by the court of learned ADJ, Karnal. During this period the defendant no.1 has further alienated the suit property in favour of defendant no. 3 as the plaintiff was ready and willing to perform his part of contract from the day entering into the contract which is cleared from the Full Payment Agreement and the defendant no.1 was not ready to perform his party of contract, which clearly shows from the pendency of the civil matters on the suit property. As the matter has been finally decided in the year 2014, so the plaintiff who is still ready and willing to perform his part of contract wants to get the sale deed executed and registered in favour of his as per the terms and conditions of the agreement." Amendment in para 10 "The cause of action firstly arose in favour of the plaintiff on 15.11.1994 when the Full Payment Agreement was executed by the defendant no.1, cause of action further accrued in the year 2002 when the defendant no.1 tried to dispossess the plaintiff and to take forcible possession of the suit property, thereafter the cause of action accrued on 14.12.2010 when the defendant no. 3 and the cause of action finally accrued on 29.1.2014 when the court of learned ADJ decided the matter in favour of the plaintiff." Amendment in prayer clause "It is, therefore, prayed that a decree for possession by way of specific performance may kindly be passed in favour of the plaintiff and against the defendant no.1 and the defendant no.1 may kindly be directed to execute the sale deed executed in terms of the agreement dated 15.11.1994, in case the defendant no.1 refused to perform his part of contract then by way of giving the assistance of the court the sale deed in question of the suit property may kindly be ordered to be executed and registered by appointment of Local Commissioner. It is also further prayed that the suit for declaration that the sale deed dated 14.12.2010 executed by defendant no.1 in favour of defendant no. 3 may kindly be declared as null and void, imperative, ineffective, not binding upon the rights of the plaintiffs and the defendant no.1 having no right to transfer the suit property in favour of any other person except the plaintiff in any manner by way of consequential 3 relief of permanent injunction and the defendant no. 3 be restraining from alienating, mortgaging, leasing the suit property detailed in para no.1 of the plaint in the name of any other person." 4. Learned counsel for the petitioner submitted that the trial Court has erred while rejecting the prayer of the petitioner for amendment of pleadings. Aforesaid amendments are very essential for proper adjudication of the present case and shall enable the trial Court to decide the controversy easily. 5. Per contra, learned counsel for the respondents-defendants submitted that the amendments sought to be incorporated are barred by law of limitation. These pleas were already available to the plaintiff and having not been diligent, the same cannot be incorporated especially when the suit is ripe for arguments as it will not only change the cause of action but would amount to change the nature of the suit. 6. I have heard learned counsel for the parties and perused the paper book with their able assistance. 7. As per amendment in Order 6, Rule 17 CPC w.e.f 2002 expression in respect of "due diligence" was incorporated to prevent the filing of frivolous petitions namely amendment of the plaint as also the written statement so that they may not be entertained at the drop of a hat. Be that as it may, such amendments sometimes prevents multifarious litigation and are sought on account of some subsequent events. Moreover, no new facts have been introduced by way of amendment and the defendants shall always have right to controvert the same. Amendment sought to be incorporated in addition to the grounds, in my view would not amount to changing the nature of suit. The trial Court should have rendered some plausible reason while rejecting the application once the amendment sought does not amount to altering the nature of the suit. In the opinion of this Court, it would not take away the valuable right of the defendants. 8. The trial Court should have rendered some plausible reason while rejecting the application once the amendment sought does not amount to altering the nature of the suit. In the opinion of this Court, it would not take away the valuable right of the defendants. 8. Resultantly, present petition is allowed and the impugned order is set aside. Plaintiff-petitioner is permitted to amend the plaint subject to the payment of costs of Rs. 7000/-and the defendants are given liberty to file amended written statement to the same besides liberty for framing of any additional technical issue as permitted under law. If such issue is framed, the trial Court shall decide the same as preliminary issue by affording three effective opportunities each to both the parties.