Fakirchand Sao vs Lilu Mahto alias Liloo Mahto

S.B. Sinha, J.—This revision application arises out of an order dated 7-7-1991 passed by Shri Yogendra Prasad. Subordinate Judge 1st Court Hazaribagh in Title Suit No. 50 of 1981, whereby and where under the said learned court allowed an application for amendment of plaint filed by the opposite-party.

The fact of matter lies in a very narrow compass.

The opposite-party filed the aforementioned T.S. No. 50 of 1981 inter alia, for a decree for specific performance of contract.

In the plaint, the Plaintiff contended that an agreement for sale dated 21-5-1980 was entered into by and between the parties to the suit and in terms thereof the Plaintiff paid a sum of Rs. 32,000/- and the Defendant undertook to complete the sale on or before 21st May, 1981 on receipt of Rs. 3000/- which was the balance amount of consideration.

The Plaintiff further contended that the Defendant delivered the possession of the suit property to the Plaintiff in part performace of the contract. ,

The Plaintiff filed an application for amendment of plaint on 13-H-1989 were in inter alia, it was prayed that the Plaintiff be put in Was possession over the suit property through court by evicting the Plaintiff, his men and agents who so ever there be, at the cost of the Defendant.

By reason of an order dated 12-12-1989 which is contained in Annexure-3 to the civil revision application, the said prayer was disallowed.

The Plaintiff thereafter filed another application for amendment of plaint which is contained in Annexure-4 to the civil revision application wherein the plantiff propesed for the following amendments in the plaint:

(a) In the category of Defendant, before the name of Sri Fakirchand Sahu the figures''1''be prefixed and after the name and address of Defendant No. 1, the following be added as parties as below:

Nuncuchand Agarwal. - son of Fakir Chand Agarwal.

Nemi Chand Agarwal. � sons of Fakir Chand Agarwal.

Gulab Chand Agarwal. - sons of Fakir Chand Agarwal.

Durga Prasad son of Charan Sao, Gola Road.

Bigu Thakur son of Budhan Shakur

Dassain Sonar of name not known

Nos. 6 and 7 of Lohar Tola Road, and All resident of Ramgarh

P.O.P.S Ramgarh District Hazaribagh. ...Defendant 2nd Party.

(II) In para 8 of the Plaint. At the end of the part of the Sentence and delivered possession...of the contract" be deleted.

(III) At end of para 9 of the plaint the full stop be converted into a "Coma" and the words Both orally and by several writtings be inserted.

(IV) After para 14 a new para (14-a) be added as below:-

(14-a) That the Defendants 2nd party were set up on portions of the suit premises by the Defendant No. I during pendency of the suit who are to be also bound by the result of this suit and as such are made parties to obviate any future objection.

(V) That word "Defendant" in para 15 (a) be substituted by the words "Defendant No. 1."

(VI) That at the end of para 15 (b) of the plaint the following words "Read of payment" be substituted by the words in Court deposit under Chalan No. 308 dated 1-12-1982 and after the above the following be added "and the Plaintiff be put in possession of the suit property through Court at the costs of Defendant."

By reason of the impughed order the said application was allowed.

Mr. N.K. Prasad learned Counsel appearing on behalf of the Petitioner raised a short question in support of the civil revision application.

The learned Counsel submitted that in view of the fact that the earlier prayer for amendment of plaint prayed for by the Plaintiff having been rejected by the aforementioned order dated 12-12-1989, another application for amendment of plaint as contained in Annexure-4 to the civil revision application was be barred under the principles of res judicata.

The learned Counsel in this connection has relied Upon a decision of this Court in Puranmal Bajoria Vs. Nagarmal and Others, .

Mr. B.K. Dey, learned Counsel appearing on behalf on the opposite party, on the other hand, submitted that in a suit for specific performance of contract a party is entitled as a matter of right to file an application for amendment of plaint praying therein inter alia for possession of property in addition to the relief of the specific performance of contract

The learned Counsel, therefore, submitted that as the provisions of Section 22 of the Specific Relief Act 1963 were not taken into consideration by the learned court below while passing the impugned order dated 12-12-1989 the same will not operate as res judicata.

The learned Counsel in this connection relied upon a decision in Babu Lal Vs. Hazari Lal Kishori Lal and Others, , in Kashi Nath Tewari Vs. Mangroo Lal, , in Lotu Bandu Sonavane Vs. Pundalik Nimba Koli, .

From a perusal of the aforementioned order dated 12-12-89 as contained in Annexure-3 to the civil revision it will appear that the application for amendment of plant filled by the Plaintiff-opposit-party was rejected inter aha, on the ground that the definite case of the Plaintiff was that he was put in possession of the property in question in part performance of the contract.

There can not be any doubt that the principles of res-judicata applies in different stages of the said proceedings.

However, in this case as noticed hereinbefore, the learned court below rejected the application for amendment of plaint held by the opposite-party only on the ground that a prayer for recovery of possession will be inconsistent with the statements made in paragraph 8 of the plaint were in the Plaintiff contended that the Defendant had delivered possesston of the propetty to the Plaintiff in part performance of the contract.

In terms of the application for amendment of the plaint which is contained in Annexure-4 to the civil revision application, the Plaintiff had sought to delete that portion of the statements made in the plaint also.

In this situation, therefore, now there was no impediment on the way of learned court below to allow the prayer of amendment of plaint made by the Plaintiff-opposite-party.

In this view of the matter, in my opinion, the application for amendment of plaint filed by the Plaintiff opposite-party which has been allowed by the learned court below by reason of the impugned order can not be said to be brared under the principles of res-judicata.

Section 22 of the Specific Relief Act 1963 reads as follows:

Power to grant relief for possession, partition refund of earnest money, etc....(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure. 1908, any person suing for the specific perfomance of a contract for the transter of immovable property may, in an appropriate case, ask for

(a) possession, or partition and separate possession, of the property, in addition to such performance: or

(b) any other relief to which he may be intitled including the refund of any earnest money or deposit paid or (made by) him in case his claim for specific performance is refused.

(2) No relief under Clause (a) or Clause (b) of Sub-section (1) shall be granted by the Court unless it has been specifically claimed:

Provided that where the Plaintiff has not claimed any such relief in the plaint, the court shall, at any stag? of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.

(3) The power of the Court to grant relief under Clause (b) of Sub-section (1) shall be without prejudice to its powers to award compensation u/s 21.

In terms of the aforementioned provisions, therefore, the court almost as a matter of course as to allow a prayer for amendment of plaint.

As noticed hereinbefore, the aforementioned order dated 12-12-89 was passed by the learned court below in view of the fact that the application for amendment of the plaint filed by the Plaintiff at that stage praying therein for insertion of the relief of possession was inconsistant with the statements made by the Plaintiff to the effect that he had been put in possession of the suit properties in part performance of the contract.

The Plaintiff in view of the fact had prayed for deletion of the said statements made in paragraph 8 of the plaint there was no embargo by the learned court below to pass an order allowing the application for amendment of plaint.

Mr. Prasad, thereafter, submitted that in such a siuation the action on the part of the Plaintiff in filing the application for amendment of plaint must be held to be mala fide in view of the fact that thereby he has sought to, achieve the same object indirectly which he could not do directly. It is true that normally a person can not be permitted to achieve his object indirectly which he can not do directly.

However, as noticed hereinbefore. The Plaintiff was entitled to an order granting leave to him to amend the plaint in terms of the Order VI Rule 17 of the CPC in view of, the provisions contained in Section 2JL of the Specific Relief Act, 1963.

Such a prayer on the part of the Plaintiff which is inconsonance with the provisions of statute cannot be said to be mala fide.

It is true that inter alia by seeking to delete the statements to the effect that the Defendant delivered the possession of the suit property to the Plaintiff in part performence of the cortract, he is seeking to resite from an earlier statement made in the plaint.

However, in Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and Another, , the Supreme Court allowed an application for amendment of plaint stating that even an admission can be explained away or withdrawn.

In this view of the matter, in my opinion, it is not a case where the application for amendment should be rejected as, in my opinion, thereby the Defendant/Petitioner shall not suffer an injury which can not be compensated in monetory terms.

It is well known that an application for amendment of plaint should normally be allowed.

See Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, and in Mota Singh and Others Vs. State of Haryana and Others, .

Taking thus, all facts and circumstances of the case into consideration. I am of the view that the learned Court below has not committed any jurisdictional error in allowing the application of plaint.

However, the learned Court below should have imposed heavy costs upon the Plaintiff-opposite party. The learned Court below by reason of the impugned order has awarded a sum of Rs. 100/- only by way of costs.

In modification of the said order, it is directed that the Plaintiff-opposite party shall pay a sum of Rs. 1,000/- by way of costs upon" the Defendant-Petitioner, which may be deposited before the learned Court below within a period of one month from the date of receipt of a copy of this order.

This application is dismissed with the directions as noticed hereinbefore. In the facts and circumstances of the case, the parties shall pay and bear their own costs in this civil revision.