Sarwan Singh vs Roshan Lal

L.N. Mittal, J.—Plaintiff Sarwan Singh has filed the instant revision petition under Article 227 of the Constitution of India impugning order dated 16.07.2011 (Annexure P-3) passed by Civil Judge (Junior Division), Kharar, thereby dismissing application (Annexure P-2) moved by plaintiff-petitioner for amendment of plaint Annexure P-1.

The plaintiff in the original plaint has alleged that he sold the suit land to defendant for Rs.3,50,000/-vide sale deed dated 12.08.2002 and the defendant paid the sale consideration through cheque dated 12.08.2002 which was, however, dishonored on presentation in the Bank. The plaintiff made request to the defendant to pay the sale consideration but the defendant filed to do so. The plaintiff sought permanent injunction restraining defendant from alienating the suit land.

By way of amendment, the plaintiff wants to seek declaration that sale deed dated 12.08.2002 is illegal and null and void being result of fraud and without consideration with consequential relief of possession and also injunction as sought in the original plaint. The said application has been dismissed by the trial Court vide order Annexure P-3 which is under challenge in this revision petition.

I have heard learned counsel for the parties and perused the case file.

Learned counsel for the petitioner contended that application for amendment of plaint was filed even before filing of written statement by defendant-respondent and therefore, the said amendment should have been allowed.

Learned counsel for respondent contended that suit to challenge the impugned sale deed has become barred by limitation and therefore, proposed amendment of plaint has been rightly declined. Reliance in support of this contention has been placed on judgment of Hon''ble Supreme Court in the case of K. Raheja Constructions Ltd. Versus Alliance Ministries & others, 1996 (1) CCC 80 (SC) and judgment of this Court in case of Hari Singh versus Dalip Singh, 2002 (3) CCC 65 (P&H). It was also contended that proposed amendment would change the nature of the suit and no new fact come into existence after filing of the suit and the fact sought to be pleaded by amendment was already in the knowledge of the plaintiff.

I have carefully considered the rival contentions.

Law of amendment of pleadings is liberal. In the instant case, application for amendment of plaint was moved even before filing of written statement by defendant-respondent i.e. before commencement of trial. Consequently proposed amendment of plaint should have been allowed by the trial Court on payment of costs. As regards bar of limitation, defendant can raise the same in his written statement to the amended plaint and the same can be adjudicated upon by the trial Court. It may be mentioned that basic facts of the case of the plaintiff would remain the same even after amendment of plaint. It has been pleaded in the original plaint also that the sale was without consideration because the cheque regarding payment of sale consideration was dishonored. On the basis of the same fact, the plaintiff wants to seek declaration that the sale deed is null and void being without consideration. Consequently notwithstanding the additional relief to be claimed by the plaintiff by amendment of plaint, basic foundation of claim of the plaintiff is not being changed by amendment. Consequently the proposed amendment should have been allowed on payment of cost.

Impugned order of the trial Court suffers from jurisdictional error because the trial Court failed to exercise jurisdiction which vested in it. Accordingly, the impugned order warrants interference of this Court in exercise of revisional power under Article 227 of the Constitution of India. Resultantly the instant revision petition is allowed. Impugned order Annexure P-3 of the trial Court is set aside. Application Annexure P-2 for amendment of plaint is allowed and the plaintiff-petitioner is permitted to make proposed amendment in the plaint, subject to payment of Rs.5,000/-as cost precedent.