Amrik Singh and Another vs Amitabh Singh and Others

L.N. Mittal, J.—Defendants have filed the instant revision petition under Article 227 of the Constitution of India challenging order dated 19.8.2010, Annexure P/1, passed by learned Additional Civil Judge (Senior Division), Amritsar thereby allowing application Annexure P/3 moved by the Plaintiffs/Respondents for amendment of plaint.

Respondents filed suit against Petitioners for permanent injunction restraining Petitioners from alienating suit land in view of agreement to sell dated 9.3.2006 allegedly entered into by the Defendants with the Plaintiffs for sale of the suit land for `25,60,000/-out of which Plaintiffs paid `13 lacs as earnest money to the Defendants. By way of amendment, the Plaintiffs sought to seek the relief of possession of the suit land by specific performance of the aforesaid agreement by making necessary consequential averments. The said application has been allowed by the learned trial court vide impugned order Annexure P/1.

I have heard learned Counsel for the Petitioners and perused the case file.

Amendment application was moved by the Plaintiffs when the suit was at initial stage. Learned Counsel for the Petitioners states that even written statement had not been filed by the Defendants/Petitioners when amendment application was moved by the Petitioners. Consequently, the amendment application has been rightly allowed by the trial court. Law of amendment of pleadings is very liberal. However, now embargo has been placed on the power of court to allow amendment of pleadings after commencement of the trial unless the party seeking amendment could not raise the plea earlier inspite of due diligence. In the instant case, however, amendment application was moved by the Respondents before the commencement of trial and even before filing of written statement by Defendants. Suit for specific performance of the agreement had not become barred by limitation when the amendment application was moved. There was, therefore, no reason for not allowing the proposed amendment of plaint which has been rightly allowed by the trial court subject to payment of `1000/- as costs so as to compensate the Petitioners.

Learned Counsel for the Petitioners emphatically contended that by filing suit for permanent injunction, Plaintiffs impliedly abandoned the relief of specific performance of agreement to sell and therefore, they cannot claim said relief by amendment of plaint in view of bar created by Order 2 Rule 2 of the CPC (in short, CPC). Reliance in support of this contention has been placed on judgment of this Court in Swaran Singh & Company v. Punjab National Bank 1991(2) PLR 275.

I have carefully considered the aforesaid contention but find no merit therein. Order 2 Rule 2 CPC bars fresh or subsequent suit to claim the relief which was not claimed in the earlier suit. In the instant case, however, Plaintiffs have sought amendment of plaint and they are not filing any second or subsequent suit which could be barred by provision of Order 2 Rule 2 CPC. Judgment in the case of Swaran Singh & Company (supra) is not attracted because in that case, the Petitioner-Defendant had made counter claim in the written statement alleging that it was entitled to damages to the tune of `15,55,000/-but it restricted its claim to `8 lacs only and paid court fee accordingly. Subsequently at evidence stage, the Defendant-Petitioner wanted to amend the counter-claim to claim damages of `15 lacs. It was in these peculiar circumstances that order of the trial court dismissing application for amendment of the counter claim was upheld by this Court because by voluntarily restricting claim to `8 lacs in the counter claim, after making averments in the counter claim that in fact the Defendant-Petitioner was entitled to `15,55,000/-as damages, the Defendant was held to have intentionally abandoned the claim for the remaining amount. Facts of that case were, thus, entirely different.

For the reasons aforesaid, I find no merit in the instant revision petition. Impugned order of the trial court does not suffer from any illegality or jurisdictional error so as to call for interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is accordingly dismissed in limine.