Narinder Kaur vs Shehbaz Bhatti

Gurmeet Singh Sandhawalia, J.—The present revision petition has been filed by the petitioner-plaintiff under Article 227 of the Constitution of India, for setting aside the order dated 19.11.2012 (Annexure P8) whereby the amendment of the plaint under Order 6 Rule 17 CPC, had been declined by the Civil Judge (Jr.Divn.) Malerkotla on the ground that it was the plaintiff''s own case that it was not an agreement to sell but it was just a token of agreement to sell and therefore, permission could not be granted to convert the suit into a suit for specific performance.

A perusal of the paperbook would go on to show that suit for permanent and prohibitory injunction was filed restraining the defendant-respondents from alienating the land measuring 6 bighas 10 biswas, situated in the revenue estate of Village Bhogi Wal Tehsil Malerkotla, District Sangrur, the details of which were given in the plaint filed on 17.06.2008 (Annexure P1). The case of the petitioner-plaintiff was that on 15.04.2008, the defendant had showed the copy of the sale deed in her favour and represented that she was owner of the suit land and had agreed to sell the suit land @ Rs.14 lacs per bigha. A sum of Rs.5 lacs had been given on the said date as token money to execute the biana (agreement to sell) on 21.04.2008 whereas another Rs.5 lacs was to be paid to the defendant-respondent and another Rs.15 lacs, on or before 15.06.2008 and the rest of the amount on or before 15.09.2008.

The plaintiff had been always ready and willing to perform her part of the contract and on 21.04.2004, he had come with Rs.5 lacs to make the payment and to get the agreement executed in her favour but the defendant did not agree and put off the matter and accordingly, suit was filed. The plea taken by the defendant-respondent was that the defendant never agreed to sell the land. The alleged token of agreement was a result of planned conspiracy and prepared by the plaintiff in connivance with the witness and scribe. The defendant neither executed the alleged token of agreement nor put the signatures on the same and it was a false and fabricated document with the witness Mohd. Arshad and Shiv Kumar, who were working as property dealers. The defendant resided in Chandigarh and after purchasing the property, had gone to Chandigarh and the property dealers had taken the sale deed from the office of the Sub-Registrar and had to sanction the mutation in favour of the defendants. The plaintiff was not even known to the defendant and had never seen her but the property dealers and had been given unsigned blank stamp papers purchased by the defendant prior to the incident since the defendant had faith in the aforesaid property dealers.

The suit was sought to be converted into a suit for specific performance by filing an application dated 31.10.2008 (Annexure P5) on the ground that the last instalment was to be paid on or before 15.09.2008 and cause of action had arisen. The application was opposed by filing reply (Annexure P7) that the plaintiff''s own case was that it was an alleged token for agreement to sell and once there was never any agreement to sell, the question of plaintiff having any cause of action to file the present suit did not arise. The nature of the suit would totally change and would defeat the ends of justice. As noticed, the application was dismissed by the Trial Court.

Initially, a Co-ordinate Bench of this Court allowed the revision petition on 16.05.2013, subject to payment of Rs.10,000/- as costs, payable by the plaintiff, by noticing that the plaintiff had filed the suit based on the agreement dated 03.04.2008, for permanent injunction, which was sought to be converted into suit for specific performance. It is pertinent to mention that the deed dated 03.04.2008 had been mentioned in Annexure P2, which is the alleged token of agreement. However, counsel for the petitioner has placed on record the photocopy of the said token and pointed out that 03.04.2008 was the date of purchase of the stamp paper, which has been typed on the Annexure P2 on the front page portion. It is further conceded that a correct copy was not appended and a photocopy has been produced which has been placed on record as Annexure P2/A.

Thereafter, the respondent had filed a review application No. 90 of 2013, in which notice was issued and initially the said application was dismissed on 13.10.2014, for want of prosecution. Thereafter, an application for recalling of the order was filed and the review application was allowed on 03.12.2014. The review application was also allowed in view of the fact that perusal of the document itself showed the date of the alleged agreement to sell, was not 03.04.2008 since the initial amount was received on 15.04.2008 and the order suffered from a patent irregularity and the main case was then put up for consideration and arguments were, accordingly, addressed on 17.12.2014.

Counsel for the petitioner has been at pains to submit that, at this stage, it is not for this Court to opine on the merits of the case and that a sum of Rs.5 lacs has been received by the defendant and therefore, vide the amendment, the controversy between the parties shall be resolved. He submits that as noticed above, the date had been wrongly typed on the front of Annexure P2,which was the date of purchase of the stamp paper.

Counsel for the respondent, on the other hand, submits that once it was the pleaded case of the plaintiff itself that it was a token for agreement, as per the plaint and as per the revision petition itself, there was never any agreement to sell. The amendment could not be allowed contrary to the said pleadings as a perusal of the agreement would show that there was no last date fixed and the agreement itself talks about that the agreement to sell had to be executed on 21.04.2008 on the payment of Rs.5 lacs and once the agreement had never been executed, the question of a contract having been entered into between the parties was never there. Accordingly, he submits that there was mala fide intention of the plaintiff which was apparent.

After hearing counsel for the parties, this Court is of the opinion that the present revision petition is liable to be dismissed with exemplary costs. The token of agreement executed between the parties reads as under:

"CHANDIGARH (U.T.) 00AA 311075

TOKEN FOR AGREEMENT

Today, I, S.Bhati R/o House No. 5718/A, Sector 38 (West), Chandigarh and Mrs. Narinder Kaur D/o Jhanda Singh R/o House No. 737, 3 BI, Mohali doing following undertaking that land of S.Bhati approximately 6 1/2 bigha sold to Narinder Kaur @ Rs. 14 lacs per bigha at village Bhogi Wal Tehsil Malerkotla, Distt. Sangrur on Malerkotla Ludhiana Road is selling to Narinder Kaur. Accepting Rs. 5 lacs today on 15.04.08 from Narinder Kaur and she will pay another Rs. 5 Lacs on or before 21st April, 2008 (at the time of Biana) to Mr. Bhati and another amount of Rs. 15 lacs to Mr. Bhati on or before 15.06.2008 and the rest amount will be paid from Narinder Kaur side to Mr. Bhati on or before 15th Sep., 2008."

It is the case of the plaintiff himself, as noticed, that only on receipt of the additional Rs.5 lacs on 21.04.2008, the agreement was to be executed. In para No. 3 of the plaint, the averments made are as per the token of agreement, reproduced above, which also go on to show to the same effect. Similarly, in para No. 4 also, the following averments have been made:

"3. That after the sale deed and copy of jamabandi, therein the defendant was shown as owner in possession of the suit land, he agreed to sell the suit land fully described in the head note of the plaint situated at village Bhogiwal Tehsil Malerkotla along all right appurtenant there to the plaintiff at the rate of Rs. 14,00,000/- per bigha and received Rs.5,00,000/- as token money. He executed a token for agreement in favour of the plaintiff, through this agreement he agreed to execute the Bina (agreement to sell) on 21.4.2008 on receipt of further Rs.5,00,000/- from the plaintiff. It was further agreed that the defendant shall receive further 15,00,000/- on or before 15.6.2008 and agreed to execute the sale deed in favour of the plaintiff on or before 15.9.2008 on receipt of balance sale consideration and conditions of agreement to sell was executed on 15.4.2008 between the parties the agreement was scribed at the instance of the defendant received the earnest money of Rs.5,00,000/- at the time of execution of the token of agreement in the presence of the plaintiff. The plaintiff put his signature on the token of agreement to sell dated 15.4.2008. The defendant also put his signature on the token of agreement. Thus having completed the said agreement in all respects, the defendant handed over the same to the plaintiff. Photocopy of token of agreement dated 15.4.2008 is attached herewith.

That after execution of the agreement the plaintiff has been always ready and willing to perform his part of contract. On 21.4.2008 the plaintiff came to the defendant with Rs. 5,00,000/- for making payment to him and to get the Biana executed in her favour. But the defendant told the plaintiff to make the payment of Rs.5,00,000/- without any receipt or execution of Biana. The plaintiff requested him to execute the Biana and receipt the Biana money of Rs. 5,00,000/-. But he did not agree and putting off the matter with one excuse or the other."

Thus, it is apparent that it was the case of the plaintiff itself that even the agreement had never been executed in her favour and only an initial amount of Rs.5 lacs had been taken on 15.04.2008. The categorical case of the defendant is that the document is forged at the hands of the property dealers for which, papers had been given for getting the mutation sanctioned. The fact remains that it is the case of the plaintiff itself in para No. 2 that on 15.04.2008, the copies of the sale deeds had been shown to the defendant. Once the plaintiff had met the defendant for the first time on 15.04.2008, the question of purchasing the stamp paper on 03.04.2008 from Chandigarh for the property situated at Malerkotla would not arise. Once the alleged agreement was being executed for the first time on 15.04.2008, the question of having a stamp paper prior to that date would go on to show the mischief which has been played by the plaintiff. The suit was also filed on 17.06.2008, immediately after the alleged payment had been made on 15.04.2008 and without any cause of action, as such, since as per the token for agreement also, the payment had to be made on 15.06.2008 and the last date was 15.09.2008.

Thus, in the opinion of this Court, it was a case of mala fide intention on the part of the plaintiff trying to amend the plaint from a suit for permanent injunction into a suit for specific performance and to hold the defendant to ransom on the strength of stamp paper which had been misused. The amendment which could only be allowed is a bona fide amendment, as has been held by the Apex Court in Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, and all mala fide amendments are to be refused and especially the ones'' which constitutionally and fundamentally change the nature of the case. In the present case, the initial pleading is that there was a token of agreement and now, by virtue of the amendment, the said token has been projected as an agreement to sell on the basis of the amendment sought, which was rightly declined by the Trial Court. The principles laid down in the case of Revajeetu Builders (supra) read as under:

"67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And

(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application."

Accordingly, the present revision petition is dismissed being bereft of merit. The cost of Rs.10,000/- which was to be paid by the plaintiff at the time of allowing the initial amendment vide order dated 16.05.2013, shall be liable to be paid to the respondent-defendant and if already paid, he shall be allowed to retain the same.