Arjun and Others vs Venkatesh

B. Veerappa, J.—The petitioners, who are the defendants in the trial court, have filed this writ petition, against the order dated 02.12.2013 dismissing the application I.A. No. III, filed by the defendants, under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908.

The respondent, who is the plaintiff in the trial court, filed suit for directing the defendants to vacate and hand-over the actual vacant possession of the suit property to the plaintiff and pay mesne profits at the rate of Rs. 32,333/- per annum for the past three years, contending that he is the owner of the suit property and defendants approached the plaintiff, agreeing to purchase the suit property and an agreement was reduced into writing on 03.11.1988 for the sale of the suit property for a total consideration amount of Rs. 93,101/- and out of the same, Rs. 28,101/- was paid by the defendants to the plaintiff. As per the terms of the agreement of sale, defendants were to complete the sale transaction on or before 30.04.1989. Time was the essence of contract and it was specifically mentioned in the agreement of sale that in the event of defendants failing to complete the sale transaction, the advance amount of Rs. 28,101/- stood forfeited, but nothing was mentioned as regards the possession of the property in the said agreement of sale. The plaintiff further contended that he was in service, away from Belgaum District and he had no occasion to approach the suit property. Taking advantage of this fact, defendants have trespassed upon the suit property. However, after retirement from service, plaintiff went to the suit property in the month of December 2009 with a view to cultivate the suit land; at that time, defendant Nos. 1 to 4 obstructed the plaintiff and for the first time, claimed that they are in possession of the property. The plaintiff further contended that the suit property is standing in the name of the plaintiff, both in ownership column and cultivator''s column. However, the defendants are in possession of the suit property. Therefore, the plaintiff has got issued a legal notice on 15.01.2010, asking them to hand-over the actual vacant possession of the suit property and defendants have no right to remain in the suit property. The said notice was not replied by the defendants. Therefore, the plaintiff claimed mesne profits for the past three years amounting to Rs. 32,333/- per year, totally amounting to Rs. 1,00,000/- which was legally claimed by the plaintiff and also claims for future mesne profits, from the date of the suit till its realisation, etc.

The present petitioners, who are defendants, filed the written statement resisting the plaint averments, admitting the agreement and further contended that the defendants have approached the plaintiff expressing willingness to dispose off the suit property; for that proposal, defendants have entered into an agreement of sale, in respect of the suit property, for total consideration amount of Rs. 93,101/- and out of the said amount, defendants have paid an advance of Rs. 28,101/- to the plaintiff before the respectable panchas and the same has been incorporated in the agreement of sale dated 03.11.1988. In the said agreement, it was mentioned that, the transaction should be completed on or before 30.04.1989. Inspite of the request made, the plaintiff has not executed the sale deed and the defendants were ever ready and willing to purchase the suit property at any time by paying the balance sale consideration of Rs. 5,000/- and also contended that the defendants are in actual, peaceful possession and enjoyment of the suit property for the last 23 years, with the consent and knowledge of the plaintiff, etc. Hence, they have prayed for dismissal of the suit.

When the matter was posted for the evidence of defendants, at that stage, defendants filed an application under order VI Rule 17 of the Code of Civil Procedure, for amendment of the written statement on 19.04.2013. The same was resisted by the plaintiff.

After considering the application and objections, the learned Civil Judge passed the impugned order dated 02.12.2013, dismissing the application, holding that the proposed amendment will entirely change the nature of the suit. Against the said order, the present writ petition is filed.

I have heard the learned counsel for the parties to the lis.

Smt. Padmaja S. Tadapatri, learned counsel for the petitioners, has contended that the impugned order passed by the trial court, rejecting the application for amendment, is contrary to law and the same is liable to be set aside. The petitioner further contended that the very approach of the Court below rejecting the application for amendment is unreasonable and unjustified, which has resulted in miscarriage of justice. The trial court has failed to notice that, at any stage of the proceedings, the court may allow either party to alter or amend his pleadings 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 the controversy between the parties. Therefore, she sought for setting aside the order of the trial court.

Learned counsel for the respondent sought to justify the impugned order.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.

It is not in dispute that the plaintiff/respondent filed the suit for possession, directing the respondents to vacate and hand-over the actual vacant possession of the suit property, contending that as per the sale agreement, the defendants were to complete the sale transaction on or before 30.04.1989, as time was the essence of the contract and the agreement was entered into between the parties on 03.11.1988. The said transaction/agreement is not disputed. When the matter was posted for defendants'' evidence, defendants filed an application for amendment of written statement. In the written statement, defendants sought for adding paragraph Nos. 14(a), 14(b) and 14(c) to the written statement, stating that out of total sale consideration of Rs. 93,101/-, the plaintiff has received a sum of Rs. 28,101/- on 03.11.1988, as agreed between the parties and the defendants have paid the total consideration amount of Rs. 88,101/- to the plaintiff and the defendants were ever ready and willing to perform their part of the contract. The plaintiff is postponing the same purposely and intentionally to escape from the obligation of executing the sale deed. The defendants being innocent, illiterate and law abiding citizens, were all along ready and willing to purchase the property, in terms of the agreement dated 03.11.1988.

After receipt of notice in the present suit, the plaintiff purposely did not comply with the agreement as well as the directions given by him to complete the transaction. Therefore, the defendants sought for to appoint a Court Commissioner to execute the registered sale deed as per the agreement of sale. The defendants have stated that they are in actual possession and enjoyment of the suit property as owners for the last 23 years, with the knowledge of the plaintiff. The said allegation was resisted by the plaintiff by filing objections.

The amendment sought for by the defendants introduces entirely a new case and it is not the case of the defendants/petitioners that they have filed any suit for specific performance to enforce the agreement dated 03.11.1988, till today, defendants have not filed any suit for specific performance to enforce the said agreement. In the absence of enforcement of agreement, the defendants now, cannot seek for amendment of written statement on various defence, as it is not permissible in law. It is also not the case of the defendants that they have filed any counter-claim under Order VIII Rule 6A of the Code of Civil Procedure, in the suit filed by the plaintiff. In the absence of any steps initiated by the petitioners, to enforce the agreement entered into between the parties, by way of amendment they cannot seek altogether a different prayer in the written statement and the amendment sought for in the present application will entirely change the nature of the suit, which is not permissible.

The trial court considering the entire material on record was of the view that the amendment of pleadings are to be allowed if it does not change the nature of the suit or cause of action. In the suit on hand, the plaintiff has filed the suit for the relief of recovery of possession and mesne profits. Now, the defendants want to seek the relief of specific performance of contract based on the agreement of sale dated 03.11.1988, through the plaintiff. If such a prayer for amendment of written statement is permitted, it will completely change the nature of the suit, which is not permitted under Order VI Rule 17 of Code of Civil Procedure. Further, in the earlier written statement, these defendants have clearly stated with regard to agreement of sale dated 03.11.1988 payment of amount to the plaintiff under the agreement of sale and with regard to adverse possession. Under such circumstances, nothing prevented these defendants to state the facts at the time of filing their written statement, which are now stated in the proposed amendment. The defendants have not at all stated any acceptable reason to show that inspite of their due diligence, they could not be able to raise the matter before commencement of trial.

The trial court has also recorded a finding that when the suit is filed for recovery of possession and mesne profits, the proposed amendment are not necessary to decide the real controversy between the parties and the present application is filed by the defendants after commencement of trial, without any reasons. Therefore, the proposed amendment will entirely change the nature of the suit. Therefore, the application has been rightly rejected by the trial court.

In the absence of the enforcement of the agreement of sale dated 03.11.1988, the defendants, now, cannot take a different stand in the proposed amendment, with regard to the specific performance of the contract and also adverse possession, which is not permissible in law.

In view of the reasons stated above, the impugned order passed by the trial court is perfectly justified and the petitioners are not entitled for any relief before this Court under Articles 226 & 227 of the Constitution of India.

Accordingly, this writ petition is dismissed.