Harjeet Singh vs Rambinder Singh and Others

L.N. Mittal, J.—Plaintiff Harjeet Singh has invoked the jurisdiction of this Court under Article 227 of the Constitution of India by filing this revision petition to assail order dated 13.11.2010, Annexure P/9 passed by learned Additional Civil Judge (Senior Division), Abohar thereby dismissing application Annexure P/6 moved by plaintiff - petitioner for amendment of plaint. I have heard learned counsel for the parties and perused the case file.

Plaintiff initially filed suit on 21.6.2006 (during summer vacation) for permanent injunction on the basis of agreement to sell. Date stipulated in the agreement for execution of sale deed had already expired before filing of the injunction suit. Plaintiff then moved application Annexure P/4 on 26.6.2006 for permission to withdraw the suit with liberty to file fresh suit. The said application was not disposed of till 11.4.2009 when the said application was withdrawn and application Annexure P/6 for amendment of plaint was moved on the same day seeking relief of specific performance of the agreement to sell also in addition to the relief of permanent injunction.

Respondents/defendants by filing reply Annexure P/7 controverted the said amendment application.

Learned trial court vide impugned order Annexure P/9 has dismissed the application of plaintiff for amendment of plaint. Feeling aggrieved, plaintiff has filed the instant revision petition.

I have heard learned counsel for the parties and perused the case file.

Counsel for the petitioner contended that the suit was at initial stage when application for amendment of plaint was moved and therefore, the said application should have been allowed as law of amendment of pleadings is liberal.

On the other hand, counsel for the respondents contended that relief sought to be claimed by amendment is barred by Order 2 Rule 2 of CPC (in short, CPC) and therefore, proposed amendment of plaint has been rightly declined by the trial court. It was also submitted that the plaintiff - petitioner withdrew his application filed under Order 23 Rule 1 CPC for withdrawal of the suit with liberty to file fresh suit on the same cause of action and therefore, the plaintiff is not entitled to seek proposed amendment of plaint.

I have carefully considered the rival contentions. The suit is at the initial stage. Even issues have not yet been framed. Trial of the suit has not yet commenced. Law of amendment of pleadings is quite liberal. Consequently, proposed amendment of plaint should have been allowed and the plaintiff - petitioner could be subjected to costs for the delay in filing the amendment application. It would be significant to notice that relief of seeking specific performance of agreement to sell had not become barred by limitation when the amendment application was moved. Consequently, there was no reason to dismiss the amendment application.

Contention of counsel for respondents that the proposed amendment is barred by Order 2 Rule 2 CPC cannot be accepted. Once amendment of plaint is allowed, suit would include additional relief of specific performance also. Consequently, question of the suit being barred by Order 2 Rule 2 CPC does not arise. On the other hand, this contention could apply to subsequent suit and not to the instant suit itself.

For the reasons aforesaid, I find that the impugned order of trial court is patently illegal and unsustainable and also suffers from jurisdictional error because the trial court failed to exercise jurisdiction which vested in it to permit proposed amendment of plaint. For the reasons aforesaid, the instant revision petition is allowed. Impugned order Annexure P/9 passed by the trial court is set aside. Application Annexure P/6 moved by plaintiff -petitioner for amendment of plaint is allowed and plaintiff - petitioner is permitted to make proposed amendment in plaint subject to payment of Rs 25,000/- as costs precedent.