Mehar Singh vs Surjeet

Dev Darshan Sud, J.—The petitioner seeks to introduce an amendment in the plaint after a period of more than five years of the institution of the suit. In application filed under Order 6 Rule 17 of the CPC as instituted by the plaintiff-respondent herein, the reason given for not incorporating the facts which now he seeks to incorporate are that:

That the applicant/plaintiff is a innocent person having rural background at the time of filing suit could not explain properly the mode/method or manner of payment amount of Rs. 1,60,000/- to the defendant at the time of execution of agreement of sale dated 30-9-06, hence the applicant/plaintiff want to amend his plaint in the following manner with the bonafide purpose to make clarity of his pleadings.

(i) That at the end of para No. 2 before para No. 3 of the plaint the applicant/plaintiff wants to add the word, "That Smt. Jogindro Devi etc co sharers of suit land agreed to sell their shares in the suit land to the defendant for total sale consideration of Rs. 2,35,000/- but the defendant was not in the position to pay such a huge amount. Defendant is one of the relatives of Smt. Jogindro Devi etc. the approached to the plaintiff with the proposal that firstly he i.e. defendant will get transfer the suit land in his name from Smt. Jogindro Devi etc and thereafter he will sell the land measuring 0-81-64 Hects which is fully detailed and described in the head note of plaint for sale consideration of Rs. 1,60,000/-, the plaintiff bonafidely accepted the proposal of defendant and make the payment of Rs. 1,50,000/- by taking the loan from the Hamboli Co-op. Agri. Society Ltd. Hamboli Tehsil Amb Distt. Una against his FDR as well as FDR''s of his family members and as per the instructions of defendant and Smt. Jogindro Devi etc vendor of plaintiff. The Hamboli Co-op. Agri Society had given the Cheque of Rs. 1,50,000/- in the name of Sh. Roshan Lal who is husband of Smt. Jogindro Devi of The KCCB Ltd. Branch Dhussara because the Hamboli Society had its account in The KCCB Ltd. at branch Dhussara. Sh Roshan Lal husband of Smt. Jogindro Devi had withdrawn the cash of Rs. 1,50,000/- from The KCCB Ltd. Branch Dhussara and the plaintiff has also make the payment of Rs. 10,000/- to defendant on the day of execution of agreement to sell in favour of plaintiff, in this manner the defendant has make the payment of entire sale consideration of Rs. 1,50,000/- to the vendor of defendant and Rs.10,000/- to the defendant itself and defendant got transfer the share of Smt. Jogindro Devi etc in the above mentioned land described in the head note of the plaint from Smt. Jogindro Devi etc through relinquishment deed dated 30-9-06 and has further executed an agreement to sell the suit land in favour of plaintiff, in the manner stated above the plaintiff has paid a sum of Rs.1,50,000/- to the vendor of defendant as per the instruction of defendant itself.

The reading of the amendment sought to be introduced shows that the pleadings are lengthy and introduce new facts in the plaint. There is no explanation as to why these facts were not pleaded initially when the suit was instituted and such facts were in existence. Learned counsel appearing for the respondent-plaintiff submits that this amendment is in consonance with law of the Supreme Court as laid down in Surender Kumar Sharma Vs. Makhan Singh, holding:

As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment. (at p. 627)

There is no dispute with this proposition of law. However, what I find from the pleadings of the present case is that delay has not been satisfactorily explained and it also introduces new facts and situations, which would change the nature of the suit. Learned counsel appearing for the plaintiff urges that the pleadings are only clarificatory in nature/elaboration of facts already contained in the documents. If that be so, there is no bar to the plaintiff proving these documents/facts in accordance with law. I do not find that the learned trial Court has exercised jurisdiction vested in it by perversely or against law. The order is therefore quashed and set aside. No order as to costs. Miscellaneous application(s) stands disposed of as such. All interim order(s) also stands vacated.