Abnash Singh and another vs Om Parkash and others

Ajay Kumar Mittal, J.—The defendant-petitioners are aggrieved by the order dated 26.8.2011 (Annexure P-3) passed by the trial court whereby the application filed by the plaintiff-respondents under Order 6 Rule 17 of the CPC (In short "the Code") for amendment of the plaint was allowed and the relief of joint possession has been allowed to be claimed by the plaintiff-respondents instead of exclusive possession.

Put shortly, the facts necessary for adjudication of the present petition are that Shajwar Singh (since deceased) father of respondents No.1 to 3 filed a suit for specific performance of the agreement to sell dated 20.5.2004 executed by Dana daughter of Shankar Singh in favour of plaintiff-Shajwar Singh regarding the land measuring 13 kanals 10 marlas being 1/2 share of the total land measuring 26 kanals 19 marlas situated at village Megha Rai Uttar, Tehsil Jalalabad or in the alternative the suit for recovery of Rs.2,80,000/-, i.e. Rs.50,000/-paid as earnest money and Rs.2,30,000/-as damages for breach of agreement with interest at the rate of 11/2% per month from the date of advancement till recovery of the same. Along with the suit, an application under Order 39 Rules 1 and 2 of the Code was also filed. Upon notice, the petitioners filed written statement controverting the averments made in the suit. Vide order dated 12.2.2007, the trial court framed issues. Plaintiff-respondents filed an application under Order 6 Rule 17 read with Section 151 of the Code for amendment of the plaint. The said application was replied by the petitioners. The trial court vide order dated 26.8.2011 allowed the application. Hence, the present revision petition.

I have heard learned counsel for the petitioners and perused the record.

Learned counsel for the petitioners submitted that the plaintiff-respondents by amending the plaint and changing the nature of possession to be joint instead of exclusive possession claimed earlier, have set up an altogether new case which is time barred. It was also urged that in view of proviso to Order 6 Rule 17 of the Code amendment of the plaint at this stage of proceedings was unwarranted.

The trial court while allowing the application of the plaintiff respondents had observed as under:-

It is argued by learned counsel for the plaintiff that although the plaintiff was delivered joint possession of the suit land at the time of agreement to sell in question but due to inadvertence the word "Joint" was omitted to be mentioned in the plaint which he now wants to add by way of amendment. Apart from this the plaintiff had originally proposed to add the words plaintiff was in joint possession of the suit land along with other co-sharers and the plaintiff is to seek possession through partition at the end of para No.4 of the plaint but during the course of consideration the said proposed amendment has been given up as per his statement recorded separately. In this way now only word joint is required to be added in the last line of para No.4 so as to be read as joint possession of the suit land was also delivered to the plaintiff. The amendment prayed for is of formal nature not going to change the nature of suit which basically is for the relief of specific performance of agreement to sell dated 20.3.2004 and the relief so claimed would remain unchanged by virtue of proposed amendment. For the delay which has occurred by filing the present application, the defendant can well be compensated in terms of money. As such the application for amendment of plaint is allowed subject to the costs of Rs.500/-.

Rules of procedure are tools of justice and in order to do substantial justice between the parties, the procedure cannot come in its way unless it is prohibited by law. The plaintiff-respondents had already claimed the relief of possession in the plaint as originally filed but had inadvertently mentioned exclusive possession instead of joint possession as the property was not partitioned. The amendment is more of formal nature and does not change the nature of the suit. The objections raised by the defendants-petitioners, thus, have no substance and have rightly been rejected by the trial court.

In view of this factual situation, it could not be said that there was any error in the exercise of jurisdiction by the trial court warranting interference by this Court under Article 227 of the Constitution of India.

Accordingly, there is no merit in this revision petition and the same is hereby dismissed.