Mr. G. Moidin Khader vs Smt. Nafisamma and Others

B.V. Nagarathna, J.—This writ, petition is filed by the plaintiff by challenging the order, dated. 27.01.2009 passed on I.A.V in O.S. No. 43/2007 by the V Addl. Civil Judge, Mangalore, D.K.

The petitioner herein is the plaintiff who has filed O.S. No. 43/2007 seeking relief of permanent injunction against the defendant respondents for alienating the plaint A schedule property to any person other than the plaintiff. During the pendency of the said suit, an application was filed under Order VI Rule 17 of the C.P.C. seeking amendment of the plaint by adding another relief. The said application was contested and the Trial Court has rejected the said application. Being aggrieved by the said order, the plaintiff has preferred this petition.

I have heard the learned Counsel for the petitioner and the learned Counsel for the respondents.

It is submitted on behalf of the petitioner that the Trial Court was not justified in dismissing the application filed for amendment, as the contents of the application for amendment in no way change the nature of the suit and that the cause of action was on the basis of an agreement, dt.30.12.1999 and that in substance, the relief sought by the petitioner herein was one of specific performance and the same was sought in categorical terms by way of amendment application, then it is case where the said application has to be allowed.

Per contra, learned Counsel for the respondents submits that the prayer sought in the suit initially was on the basis of an agreement, dated.30.12.1999. The suit itself was filed in the year 2007 and subsequently the application for amendment was filed after the commencement of the evidence and therefore the said application was rightly rejected by the Trial Court, which order does not call for any interference in this writ petition.

Having heard the learned Counsel on both sides and on perusal of the material on record, it is seen that the basis for filing the suit by the petitioner herein is an agreement dated.30.12.1999 under which the father of the defendants 2 to 8 namely one G. Hameed had allegedly agreed to sell the plaint A schedule property for a consideration of Rs. 5 lakh and that the petitioner-plaintiff had allegedly paid a sum of Rs. 50,000/- as part consideration and that since no agreement of sale was executed by the said G. Hameed, i.e. who had executed the agreement, dated 30.12.1999, the suit was filed seeking the relief of permanent injunction against the defendants not to sell the said property to anybody else other than the plaintiff. The said prayer, which in my view, is in substance, one for specific performance of the agreement dated.30.12.1999, as the cause of action and the basis for seeking such a prayer in the suit is the said agreement. Thereafter an amendment has been sought for including the prayer of specific performance with regard to the said agreement. The question as to whether the suit on the basis of the said prayer is maintainable or whether the prayer can be granted by the Trial Court: cannot be considered at this stage.

Taking into account the fact, that the cause of action for filing of the suit and making the initial prayer as well as the facts leading to the seeking of the prayer by way of amendment is one and the same and in substance, the prayer in the suit is for seeking specific performance of the agreement, the Trial Court in my view, was not justified in disallowing the amendment. If the respondent-defendants are able to ultimately succeed in establishing that the suit is not maintainable or the same is hit by limitation, the said contention would have to be taken only after the said prayer for amendment is allowed and the suit is contested by leading evidence if any. At this stage, those questions cannot be taken into consideration for the rejection of the amendment. Since the initial prayers as well as the facts being the basis for amendment of plaint in substance are one and the same, the said amendment has to be allowed.

At this juncture, learned Counsel for the respondent has adverted to the decision of the Hon''ble Supreme Court, in the case of Vidyabai v. Padmalatha reported in 2009 AIR SCW 899 by contending that once the issues are framed, the amendment cannot be allowed. No doubt the Apex Court has stated that the trial commences on the date the issues are framed and the proviso appended to Order VI Rule 17 will be applicable. In the instant case, since I have held that the nature of the prayer made initially and the prayer made in the application for amendment is in substance one and the same and the basis of the said prayers are also already stated in the plaint, the proviso stated under Order VI Rule 17 would not apply to the present case.

Hence, the writ petition would have to be allowed. The order impugned is set aside. The petitioner-plaintiff is permitted to amend the plaint as sought by him in his application. The Trial Court; is directed to give an opportunity to the respondent-defendants to file their written statement to the amended plaint and thereafter after framing fresh issues, the trial has to be concluded and the suit has to be disposed of in accordance with law.