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2025 DIGILAW 508 (HP)

Baljinder Singh v. Bhagat Ram

2025-03-26

SATYEN VAIDYA

body2025
JUDGMENT : Satyen Vaidya, J. By way of instant petition, the petitioner has challenged order dated 22.02.2024 passed by learned Senior Civil Judge, Nalagarh in CMA No. 199/24 in Civil Suit No. 102/1 of 2017, whereby the application of the petitioner for amendment of written statement has been dismissed. 2. Petitioner is the defendant in original suit before the learned trial Court. The parties hereinafter shall be referred by the status as they hold before the learned trial Court. 3. Plaintiff has filed a suit against the defendant for specific performance of agreement to sell dated 11.09.2014. It is alleged that the defendant had agreed to sell the land comprised in Khata/Khatauni No. 33/35, Khasra No. 348/131, measuring 3-18 bighas, situated at Mauza Sauri, Tehsil Nalagarh, District Solan, H.P. for a total sale consideration of Rs.15,60,000/- i.e. @ of Rs.4,00,000/- per bigha. As per the plaintiff, he had paid a sum of Rs.13,00,000/- in advance towards the sale consideration to the defendant at the time of execution of agreement dated 11.09.2014. The plaintiff also claims to have been put in exclusive possession of the suit land at the time of agreement. The balance amount of Rs.2,60,000/- as per the plaintiff was agreed to be paid to defendant on or before 11.09.2015 which was agreed to be the date for execution and registration of sale deed. 4. Plaintiff has further averred that at the time of execution of agreement dated 11.09.2014, the suit land was mortgaged with UCO Bank and Punjab National Bank. The defendant had undertaken to discharge the loan liability and to clear the suit land from all charges before the execution and registration of the sale deed. 5. It is also the case of the plaintiff that he has always been ready and willing to perform his part of his contract but the defendant has backed out. As per the plaintiff, he had visited the office of Sub Registrar for the purpose of execution and registration of sale deed on 11.09.2015 with prior intimation to to the defendant but the defendant had not turned up. 6. The defendant has filed the written statement by raising preliminary objection of maintainability, lack of cause of action, estoppel, limitation etc. As per the plaintiff, he had visited the office of Sub Registrar for the purpose of execution and registration of sale deed on 11.09.2015 with prior intimation to to the defendant but the defendant had not turned up. 6. The defendant has filed the written statement by raising preliminary objection of maintainability, lack of cause of action, estoppel, limitation etc. On merits, though the defendant has not denied execution of agreement but according to him the plaintiff had paid only a sum of Rs.10,00,000/- to the defendant and since he had not come forward to pay the balance amount to execute the sale deed, the advance paid by the plaintiff stood forfeited in terms of the agreement between the parties. In this manner, the defendant has taken a stand that the agreement between the parties stood determined and the defendant was at liberty to use his land as per his wish. 7. Learned trial Court framed the issues. The plaintiff concluded the evidence and opportunity was provided to the defendant to lead his evidence. Many opportunities were availed by the defendant but he did not lead the evidence despite the fact that costs were also imposed upon him. 8. Lastly, the defendant filed an application under Order 6, Rule 17 of the Code of Civil Procedure (for short “Code”) for amendment of written statement. In the application, it was averred that the plaintiff and defendant were closely related though they were not residing in their ancestral village. As stated in the application, the deal for sale of the suit land was struck between the parties by agreeing on the sale consideration of Rs.6 lakhs per bigha i.e. Rs.23.40 lakhs for the entire land agreed to be sold. The defendant further averred that keeping in view the close relations between the parties, the plaintiff had insisted to mention lesser sale price in the agreement by convincing the defendant that in such a manner the plaintiff would be able to save substantial stamp duty. The defendant also contended that though in the agreement, an amount of Rs.13,00,000/- was mentioned as having been received by the defendant from the plaintiff as advance, but in fact the plaintiff had paid a sum of Rs.19,00,000/- to the defendant. The defendant also contended that though in the agreement, an amount of Rs.13,00,000/- was mentioned as having been received by the defendant from the plaintiff as advance, but in fact the plaintiff had paid a sum of Rs.19,00,000/- to the defendant. Further, the explanation has been sought to be rendered by the defendant that he did not disclose the true facts in original statement as he expected the suit to be decided in an amicable manner as the parties had close relationship and some other relatives had also promised to intervene. 9. The defendant thus sought to amend the written statement by adding paragraph No.4(A) narrating all the above facts in detail. 10. Plaintiff contested the application by denying the averments made therein. 11. Learned trial Court vide impugned order has dismissed the application by taking into consideration the fact that the defendant had sought the amendment at much belated stage when he had already availed a number of opportunities for leading evidence and further that the defendant had failed to explain as to what prevented him from seeking the amendment before the commencement of trial despite due diligence. In this backdrop, the learned trial Court concluded that it was difficult to hold that the defendant, inspite of due diligence could not seek the proposed amendment before the commencement of trial. 12. The provisions of Order 6, Rule 17, of the Code stands amended by amendment Act, 2002. A proviso has been appended which prohibits the Court from allowing any amendment in the pleadings after commencement of trial unless the Court comes to the conclusion that inspite of due diligence the party could not have raised the matter before the commencement of trial. 13. Admittedly, in the present case, the application for amendment of written statement has been filed much after the commencement of trial. The plaintiff has concluded the evidence and thereafter the defendant has also been afforded a number of opportunities to lead evidence. In the application filed by the defendant for amendment of the written statement, the only reason mentioned is that the plaintiff had allegedly become dishonest and wanted to grab the amount payable to the defendant. There is no whisper as to why the defendant had not filed the application for amendment of written statement before the commencement of trial. 14. In the application filed by the defendant for amendment of the written statement, the only reason mentioned is that the plaintiff had allegedly become dishonest and wanted to grab the amount payable to the defendant. There is no whisper as to why the defendant had not filed the application for amendment of written statement before the commencement of trial. 14. In order to enable the Court to exercise its jurisdiction, under the above noticed proviso to Order 6, Rule 17 of the Code, the foundational facts are required to be mandatorily pleaded by a party seeking amendment. He has to satisfy the Court as to reason, if any, for not seeking amendment before the commencement of trial despite due diligence. In the case at hand, the above legal requirement is clearly missing. 15. In Nitaben Dinesh Patel vs. Dinesh Dahyabhai Patel, (2021)20 SCC 210 , the Hon’ble Supreme Court has held as under:- “8. Order VI Rule 17 CPC provides for amendment of the pleadings. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings (including written statement) in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Proviso to Order VI Rule 17 CPC further provides that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. 9. ………………………………………………………. 10. The proviso to Order VI Rule 17 CPC that no application for amendment shall be allowed after the trial has commenced unless the court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. Therefore, if some facts have come to the knowledge subsequently and subsequent to the commencement of trial, may be during the course of trial and if it is found that it is necessary for the purpose of determining the real questions in controversy between the parties, on a fair reading of Order VI Rule 17 CPC, such an application for amendment can be allowed even after the trial has commenced. In the present case, as observed hereinabove, the factum of actual marriage on 14.12.2006 came to the knowledge of the appellant-wife when the marriage certificate was produced during the cross- examination of the respondent-husband and immediately thereafter the application (Ex.281) for amendment was made.” 16. Thus, looking at the facts of the case, no illegality can be said to have been committed by the learned trial Court while rejecting the prayer of defendant for amendment of written statement. The plaintiff was aware about the facts, now sought to be incorporated, right from the beginning. 17. Even otherwise, the plea sought to be raised by the defendant is unconscionable. The plea as sought to be raised by defendant cannot be allowed being against law. 18. Further, the amendment as proposed, if allowed, will enable the defendant to withdraw admission made earlier and thus, prejudice is likely to be caused to plaintiff. 19. In result, there is no merit in the instant petition and the same is accordingly dismissed. Pending applications, if any, also stand disposed of.