Rajendra Singh vs Vatan Singh

Vineet Kothari, J.—The appellants/defendants, Rajendra Singh and others, have preferred this second appeal assailing the impugned judgment and decree dated 02.05.2009 passed by learned District Judge (FT) No. 1, Hanumangarh, whereby the appeal filed by the appellants/defendants being Civil Appeal No. 02/2008 (55/07) - Rajendra Singh and Ors. v. Vatan Singh and Ors., came to be dismissed upholding the judgment and decree dated 05.10.2007 passed by learned Additional Civil Judge (Sr. Division) Hanumangarh, in Civil Original Suit No. 06/2005 (30/04)- Vatan Singh and ors. v. Rajendra Singh and Ors., whereby the learned trial court decreed the plaintiffs'' suit for specific performance of the agreement dated 16.05.1974.

Briefly stated, the facts of the case are that the respondents/plaintiffs filed a suit on 25.05.2004 before learned Addl. Civil Judge (Sr. Division), Hanumangarh for specific performance of agreement dated 16.05.1974. In the plaint, the plaintiffs/respondents averred that father of the defendants, late Saudagar Singh, who is now represented by his legal representatives, Rajendra Singh and others, entered into an agreement with respect to land situated in Chak No. 34 STG of Stone No. 7/336 ad-measuring 15 Bigha and Stone No. 6/336 ad-measuring 10 Biswa, total 16 Bigha and 10 Biswa for a consideration of Rs. 49,500/- with the mother of plaintiffs- Vatan Singh and others, namely, Smt. Sukhwant Kaur W/o Ujagar Singh. The possession of the land in question was also taken. The respondents/plaintiffs, therefore, filed the suit for specific performance of the agreement.

The appellants/defendants filed their written statement while denying the factum of execution of agreement itself. The defendants raised an objection that the suit has been filed by the plaintiffs on 25.05.2004 after a gap of about 30 years, therefore, same is barred by limitation as the plaintiffs have failed to show their readiness and willing of the said agreement for all these 30 years. The plaintiffs have filed the suit on 25.05.2004 that too after death of executor, Mr. Saudagar Singh, of the agreement, who expired on 02.01.2000. They further averred that the executor of the agreement i.e. Saudagar Singh (father of the defendants) and Smt. Sukhwant Kaur W/o Sh. Ujagar Singh, (mother of the plaintiffs) both had expired, therefore, the plaintiffs could not seek specific performance of the said agreement. The appellants/defendants, Rajendra Singh and others thus filed their written statement and prayed for dismissal of the suit.

During the pendency of the suit, the respondents/plaintiffs, Vatan Singh and others filed an application under Order 6 Rule 17 CPC seeking amendment in their plaint. By filing this application, the plaintiffs sought to amend the Chak number mentioned in the agreement itself as their mother Smt. Sukhwant was illiterate. According to plaintiffs, in the agreement Chak No. 34 STG, Stone No. 7/336 and Stone No. 6/336 were wrongly mentioned in place of Chak No. 7/336 measuring 4 Bigha 10 Biswa and Stone No. 9/334, 8/334, measuring 12 Bigha. A reply to the said application was filed by the defendants while opposing the same.

The learned trial court after hearing both the parties allowed the said application under O. 6 R. 17 CPC vide order dated 06.09.2007 and allowed the amendment in the plaint. The defendants aggrieved by order dated 06.09.2007 preferred a writ petition being C.W. No. 5959/07- Rajendra Singh and Ors. v. Addl. Civil Judge (Sr. Division) Hanumangarh and Ors. The said writ petition was, however, dismissed by the learned Single Judge of this Court vide order dated 10.10.2007 while holding that since the main suit itself has been decided on 05.10.2007, therefore, the writ petition was rendered infructuous. For the purposes of ready reference, the short order dated 10.10.2007 of this Court is quoted herein below:--

"Learned counsel submits that suit out of which this writ petition arises itself has been decided, as such the writ petition becomes infructuous. The same is, therefore, dismissed as infructuous. It is made clear that it will be open to the petitioner to assail the correctness, legality or propriety of the impugned order by setting forth appropriate ground in appeal, if necessity so arises, and if the petitioner so stands advised." 6. The appellants/defendants have preferred this appeal assailing the concurrent judgment and decree of the courts below by way of this second appeal.

The only contention raised by the learned counsel for the appellants, Mr. H.S. Sandhu, is that the amendment was allowed by the learned trial court on 06.09.2007 in the plaint, and the same was upheld by the appellant court below while relying upon the decision of the Hon''ble Apex Court in the case of Puran Ram Vs. Bhaguram and Another, , but the said judgment was delivered by the Hon''ble Apex Court in relation to amendment of plaint was rejected on 29.08.1998 prior to the amendment in the Code of Civil Procedure in Order 6 Rule 17 by way of inserting a proviso therein in the year 2002 and thereafter in view of said amendment in CPC, amendment could not have been allowed by the learned trial court. He also submitted although against the order dated 06.09.2007 allowing application under O. 6 R. 17 CPC, a writ petition was filed being C.W. No. 5958/2007, however, the same was dismissed, as infructuous with a liberty to raise objection before the appellate court, however, the learned lower appellate court has also rejected the said objection while dismissing the first appeal of the defendants/appellants and upheld the judgment of the learned trial court. The learned trial court decreed the suit filed by the plaintiffs vide judgment and decree dated 05.10.2007 whereby the decree was passed with respect to land of Chak No. 7/336 measuring 4 Bigha 10 Biswa and Stone No. 9/334, 8/334, measuring 12 Bigha. He also submitted that the suit itself was barred by limitation as the same was filed with a delay of almost 30 years of the agreement and the change of description of the land in the agreement itself could not have been allowed after the amendment in proviso to O. 6 Rule 17 of CPC, 1908. He further submitted that the defendants'' father never agreed to sell land which was stated in the agreement dated 16.05.1974.

On the other hand, Dr. Sachin Acharya, learned counsel for the respondents/plaintiffs controverted the submissions made by the learned counsel for the appellants/defendants. He submitted that the full consideration of the agreement was paid to the defendants'' father at the time of execution of the agreement itself and the mere fact that the amendment in the description of the Chak number was allowed by the trial court while allowing application under O. 6 R. 17 CPC, the same cannot be reversed by this Court in the present second appeal at the instance of the appellants/defendants, since in the fair exercise of discretion of learned trial court, the said amendment was allowed based on the Hon''ble Apex Court decision placed before it on the purported basis of later amendment in the CPC and later view of Hon''ble Apex Court as contended by the learned counsel for the appellants and the same cannot give rise to any substantial question of law for allowing the amendment in the plaint and relief clause for correct description of the suit land. He also refuted that after amendment in CPC also, no such amendment in the plaint could be allowed.

Having heard the learned counsel for the parties, this Court is satisfied that no substantial question of law arises in the present second appeal as both the courts below have concurrently decreed the suit for specific performance filed by the respondents/plaintiffs for specific performance of contract. The findings of facts arrived at by the courts below are based on cogent and relevant evidence and, therefore, the same cannot be said to be perverse by any stretch of imagination. Where time was not the essence of the contract and full consideration having been received by the vendor/defendants, the suit for specific performance could be so decreed and has rightly been decreed by both the courts below. The amendment in plaint only for giving correct description of land, cannot be construed as perverse amendment in the plaint allowed by the courts below.

Consequently, the present second appeal filed by the appellants/defendants seeking to assail the judgments and decree of the both the courts below is found to be devoid of any merit, and the same is hereby dismissed. No costs. A copy of this judgment be sent to the concerned parties and the courts below forthwith.