Karnail Singh vs Sampuran Kaur and Others

G.C. Garg, J.—This revision is directed against the order dated 8.4.1992 of the trial Court whereby application moved by the plaintiff, under Order 6 Rule 17 of the CPC seeking amendment of the plaint, was dismissed.

Plaintiff-petitioner filed a suit for specific performance of agreement. The suit was resisted by controverting the allegations made by the plaintiff. Competence of defendant 2 to execute agreement to sell in favour of the plaintiff on behalf of defendant 1 was denied. Parties to the suit thereafter led evidence in support of their respective pleadings. The suit was at the rebuttal evidence stage when the plaintiff moved the present application seeking amendment of the plaint in order to make an averment that he was always ready and willing to perform his part of the contract and had sufficient money to tender the same to the defendants. This application, as noticed, was dismissed by the order under revision.

Learned counsel for the petitioner submitted that the petitioner had already averred in the plaint that he requested defendants 1 and 2 to execute the sale deed but they put off the matter on one pretext or the other. Learned counsel pointed out that in para 5 of the plaint, it was specifically mentioned that defendants 1 and 2 did not turn up before the Registrar to execute the sale deed and the plaintiff was ready with the balance sale consideration and other expenses for purchase of stamp paper and registration charges to perform his part of the contract. Learned counsel in the wake of the above, further submitted that the application seeking amendment of the plaint was moved to incorporate the readiness and willingness of the plaintiff so as to avoid a technical objection on a later date. Learned counsel in support of his submission relied upon Lakhi Ram (Dead) through L.Rs. v. Shri Trikha Ram and Ors. 1998 1 118 P.L.R. 801 (S.C.) and Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar 1990 SCC 277 (S.C).

After hearing learned counsel for the parties and going through the judgments of the Supreme Court relied upon by learned counsel for the petitioner, I am of the opinion that these judgments cover the controversy raised in this revision petition. It has been held by the Supreme Court in the above referred two cases, that application of the plaintiff seeking amendment of the plaint in a suit for specific performance regarding readiness and willingness to perform his part of the contract could be allowed not only in the suit but also at the appellate stage and by the grant of such amendment, rights of the defendants are not affected. In that view of the matter, the order under revision deserves to be set aside.

For the reasons stated above, this revision is allowed, impugned order is set aside and the plaintiff is permitted to amend his plaint incorporating therein that he had been always ready and willing to perform his part of the contract and he had sufficient money to tender to the defendants. Parties through their counsel are directed to appear in the trial court on 28.9.1998. The plaintiff shall file the amended plaint in the trial court, preferably on that very day and in any case, shortly thereafter. The suit shall thereafter be disposed of in accordance with law at a very early date. No costs.