Siri Chand vs Nahar Singh

G.C. Garg, J.—This revision is directed against the order dated 9.9.1993 of the trial court whereby application moved by the plaintiffpetitioner for amendment of the plaint was dismissed.

Plaintiff filed a suit for permanent injunction and in the alternative for possession, restraining the defendants permanently from interfering in his possession or taking possession of the property in dispute as detailed in para 1 of the plaint. It was also prayed that if the defendants succeed in taking possession of the property in dispute from the plaintiff, then a decree for possession of the said property may also be passed in favour of the plaintiffs. During the pendency of the suit viz. when the suit was at the stage of plaintiff''s evidence, the plaintiff moved an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint. By way of amendment, the plaintiff prayed for replacement of averments made in para 2 by a new para. The application was resisted by the defendants. Trial court on a consideration of the matter, as noticed above, dismissed the application. This is how the plaintiff has filed the present revision.

The plaintiff filed the suit by averring that he is owner in possession of the property detailed in para 1 of the plaint and that defendant No. 1 was in dire need of a residential house and about one and a half years before the filing of the suit, he asked the plaintiff to sell the property in dispute to him but proposal of sale could not be given effect to as the plaintiff was asking for a little higher amount. It was further averred that defendant No. 1 is a strong and influential person and he is trying to usurp the property and to take possession thereof forcibly and illegally. It was on these premises the plaintiff prayed for a decree for permanent injunction and in the alternative for possession as noticed above.

The suit was resisted by the defendants by filing a written statement. Averments made in para 2 of the plaint were vehemently denied. It was pleaded that the plaintiff has suppressed and concealed the real and true facts from the court. In fact the plaintiff had agreed to sell the land in dispute to the defendants for a consideration of Rs. 8000/ ten years before the filing of the written statement and the entire amount of sale consideration had been paid by the defendants and the latter were put in actual physical possession of the property on the basis of an agreement to sell the property in dispute which was only an oral agreement. After taking possession of the property the defendants raised certain construction thereon, planted trees and have been residing therein since then. It was further pleaded that initially the defendants raised kacha construction and later on pacca room were constructed by them in the year 198182. It was also pleaded that during the month of January, 1986 the plaintiff was allured by the tremendous increase in price of the property on account of development of colonies and he thus approached the defendants to pay more money. The matter was amicably settled between the parties on the intervention of respectables of the village and as per the settlement arrived at, the plaintiff agreed to give an area double the area in dispute to the defendants on payment of Rs. 32,000/ in all. The amount of Rs. 8000/ already paid by the defendants on account of sale consideration of the property in dispute in view of the oral agreement was agreed to be deducted from the total sale consideration of Rs. 32,000/ and thus a sum of Rs. 24,000/ more was to be paid to the plaintiff. The defendants further pleaded that acting on the latter settlement the defendants paid a sum of Rs. 4000/ to the plaintiff for purchase of the stamp paper for execution of the sale deed and the stamp paper was in fact purchased by the plaintiff which is in his possession now. But later on the plaintiff became more greedy and in order to get wrongful gain of the matter asked the defendants that he would not adjust Rs. 8000/ and that they should pay that much amount more to him and since the defendants did not agree to that, the plaintiff filed the present suit, in order to extort more money.

It was perhaps because of the above stand of the defendants that the plaintiff felt that his suit might not succeed on the basis of averments already made, and thus he moved the application for amendment of the plaint whereby he prayed for substitution of a new para No. 2 in place of para 2 already existing. It is necessary to notice the averments made in para 2 of the plaint which were initially made and the averments which were sought to be made by way of amendment.

Averment initially made in para 2 of plaint :

"That the defendant No. 1 was in dire need of a residential house so about 1 1/2 years back, he asked the plaintiff to sell the property in suit to the defendant. But as the plaintiff was demanding adequate price which the defendant No. 1 was not ready to pay so the said sale did not materialise."

Averments sought to be made by way of amendment :

"That the plaintiff has entered into an agreement to purchase agricultural land measuring 3 Bighas 3 Biswa belonging to the present defendants and their other six cosharers situated within the revenue estate of village Sikanderpur Ghosi on 7.6.85 through a written agreement of sale. All the coowners including the present defendants failed to perform their part of contract and failed to execute the sale deed in favour of the plaintiff. The present defendants made an additional demand to the plaintiff on 9.1.96 to the effect that if the plaintiff gives them his plot along with rooms existing therein in Khasra No. 196 situated in village Sikanderpur Ghosi in addition to the sale consideration of Rs. 5,90,625/ of their land, then they would get the sale deed executed and registered in favour of the plaintiff of their land in pursuance of agreement of sale dt. 7.5.85. The plaintiff has to agree, though unwillingly, to this additional demand of the defendants and hence the plaintiff and the defendants came to the District Treasury, Gurgaon and purchased necessary stamp papers for the execution of the sale deed on 9.1.86. The plaintiff purchased the stamp paper of Rs. 4,000/ and the defendant No. 1 purchased stamp paper for Rs. 73,975/ on the same day. But after that the defendants became dishonest and failed to execute the sale deed of their land in favour of the plaintiff and hence no sale deed was executed by the plaintiff in favour of the defendants and the stamp paper for Rs. 4000/ are lying with the plaintiff."

After hearing learned counsel for the parties, I am of the opinion that this petition deserves to be dismissed. The suit in the present case was filed in the year 1986. It seems to have been got amended once in the year 1988. The amendment in question was the second in row which was sought to be brought about by moving an application in April 1991 i.e. after a period of about five years of the filing of the original plaint. The only ground on the strength of which the amendment was sought is that the above fact which is now sought to be pleaded could not be taken in the plaint initially filed due to lack of legal advice. This is my opinion cannot be said to be such a strong ground on the basis of which the amendment can be permitted just at the asking of the party and at any time during the course of trial. Though the intention of the provisions of Rule 17 or Order 6 of the Code is that the Court may at any stage of the proceedings allow a party to amend his pleadings but that can in the normal course be permitted only on such terms as may be just and the said amendment must be necessary for the purpose of determining the real question in controversy between the parties. True the law relating to amendment is quite liberal, but having regard to the nature of the suit and the controversy raised, the amendment sought to be made is neither necessary nor relevant for proper disposal of the suit. The plaintiff filed a suit for permanent injunction and in the alternative, for possession on the ground that he is the owner of the suit property whereas the defendants pleaded that they are in possession thereof and they were put in possession by the plaintiff after he entered into an agreement to sell the property to them. The plaintiff later on refused to execute the sale deed as his demand for additional demand than the already agreed to, was not met by the defendants. The defendants thus claim possession of the property on the basis of the agreement to sell. After going through the averments already made and those which are sought to be pleaded by way of amendment, I find that the amendment in question now sought by the plaintiff has nothing to do therewith. The plaintiff is to succeed on the strength of his own case, namely, he continues to be the owner of the suit property and is in possession thereof. In case it is found that he is out of possession, it is for the trial court to see whether the suit for possession can be decreed or not. The trial Court has thus rightly declined the amendment and I find no illegality or material irregularity in the impugned order so as to call for interference by this Court. The revision petition is, therefore, dismissed. There shall, however, be no order as to costs.