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2019 DIGILAW 2892 (RAJ)

Motilal Dangi v. Sohan Kunwar

2019-11-21

DINESH MEHTA

body2019
JUDGMENT : Dinesh Mehta, J. 1. The petitioner has preferred this petition under Article 227 of the Constitution calling in question the order dated 30.09.2019, passed by the learned Additional District Judge, No.3, Udaipur (hereinafter referred to as 'the Trial Court'), whereby petitioners' amendment application dated 30.07.2019 has been rejected. 2. Facts relevant for the present purposes are that on 30.05.2005, the petitioners-plaintiffs filed a suit for specific performance of an agreement dated 08.02.2002. The suit, after proceeding at snail's pace, could reach only to the stage of plaintiffs' evidence, when the issues were framed on 16.05.2007. 3. The petitioners, vide their application dated 30.07.2019, sought various amendments in the plaint, inter alia seeking to incorporate various facts relating financial capacity of defendants Nos. 2 and 3 to project a case that the sale of the disputed land by the defendant No. 1 to them was not bonafide and the same was made only to circumvent the plaintiffs' rights. Various assertions regarding subsequent transaction between defendant No. 1 and defendants Nos. 2 & 3 have been sought to be inserted in the plaint, that defendant No. 3, aged 90 years, did not have huge amount of Rs. 25 lakhs at her disposal to buy the property and that the transaction was hit by Benarni Transaction Act, 1988. Allegations were levelled that the property was a benami purchase of Azad Kunwar/Bhim Singh. 4. The amendment application was opposed by the defendants, whereafter the same has been rejected by the Trial Court vide its order dated 30.09.2019. 5. While passing a detailed order, the learned Trial Court observed that the facts sought to be incorporated by way of amendment application are neither germane nor relevant for the issue involved. The learned Trial Court further recorded that in as suit for specific performance, what is required to be determined by the Court is; (i) existence/execution of a valid agreement and, (ii) readiness and willingness of the buyer to perform his part of the obligations. 6. Heard Mr. R.K. Thanvi, learned Senior Counsel. 7. The suit in question was field way back in the year 2005. After filing of the written statement and framing of the issues, when the case reached the stage of plaintiffs' evidence, the plaintiffs-petitioners has come with a novel idea for the reason best known to them and the subject amendment application came to be filed. 8. 7. The suit in question was field way back in the year 2005. After filing of the written statement and framing of the issues, when the case reached the stage of plaintiffs' evidence, the plaintiffs-petitioners has come with a novel idea for the reason best known to them and the subject amendment application came to be filed. 8. The amendment application is clearly hit by Proviso to Order VI Rule 17 of the Code of Civil Procedure, which inhibits grant of amendment, if the trial has commenced. In the present case, trial has not only commenced, it has proceeded a long way, though at a very slow speed. The amendment by the plaintiffs has rightly been denied by the Trial Court. 9. That apart, this Court concurs with the view taken by the Trial Court that in the suit for specific performance, the amendments which have been sought by the petitioners are not at all relevant. Whether the defendants Nos. 2 and 3 had financial capacity to buy the property or whether sale to them was bonafide or not or the transaction is hit by the provision of Benami Transaction Act, are neither germane nor relevant nor can be gone into by the Court hearing the suit for specific performance. The amendment application is a bundle of unconnected and irrelevant facts and the same is frivolous, to say the least. 10. This Court does not find any error of law or of facts, much less error of jurisdiction, warranting interference by this Court in its supervisory jurisdiction under Article 227 of the Constitution of India. 11. The Court below has shown grace and leniency in not imposing cost upon the plaintiffs, who have filed the application solely with a view to harass the defendants and settle their score. While deprecating the petitioners' act of filing such application, this petition for writ is dismissed. The stay application also stands dismissed.