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 an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint moved by the plaintiffpetitioner has been dismissed.

Plaintiffpetitioner filed a suit for possession by way of specific performance against the defendantrespondents. During the pendency of the suit the plaintiff moved an application for amendment of the plaint and prayed for addition of para 5(a) in the plaint. The averments which were sought to be made in the plaint in the shape of para 5(a) by way of amendment of the plaint read thus :

"That the defendant 1, 4 and 5 made an additional demand to the plaintiff on 9.1.1986, that if the plaintiff gives them his plot along with rooms existing therein in Khasra No. 195 situated in village Sikanderpur Ghosi Tehsil and District Gurgaon in addition to sale consideration of their land then they will get the sale deed executed and registered in favour of the plaintiff of their pursuance of agreement of sale dated 7.6.1985 which has been executed between the defendants and the plaintiff. Thus by agreeing to the additional demand of defendants 1, 4 and 5 and in pursuance of agreement of sale of land of defendants dated 7.6.1985, the defendants and the plaintiff came to District Treasury Gurgaon to purchase the necessary stamp papers for the execution and registration of sale deed on 9.1.1986 and the defendants purchased the stamp papers for Rs. 73,975/ in favour of the plaintiff and plaintiff purchased the stamp paper for Rs. 4000/ in favour of the defendants for registration on the same day vide Ser. No. 2822".

Prayer for amendment was opposed by the defendants. Trial Court on a consideration of the matter dismissed the application as noticed on the grounds that the plaintiff did not explain anything in the application as to how the facts which were now being sought to be brought on record by way of amendment, could not be pleaded at the time of institution of the suit. Secondly, the trial court was of the view that the suit was filed in March 1987 and the amendment was being sought in May 1990 i.e. after period of three years and that the plaintiff did not lead an iota of evidence despite having availed three opportunities for his evidence. Other reasons that seem to have weighed with the trial Court for declining the prayer for amendment which the trial court noticed in the order as well, that the plaintiff himself denied that he purchased any stamp paper worth Rs. 4000/ as pleaded in the written statement and thus certainly it did not lie in the mouth of the plaintiff to reassert that fact again and frame a new story around it by way of adding a fresh para in the plaint.

Learned counsel for the petitioner submitted that the facts sought to be pleaded by way of amendment of the plaint are quite necessary for proper and effective adjudication of the controversy raised in the suit. Learned counsel for the respondents, on the other hand submitted that by way of amendment of the plaint, the plaintiff wants to introduce a new story and that there is nothing on the record to show that as to why the facts which are not sought to be pleaded by way of amendment, were not pleaded at the time of filing of the suit.

After hearing learned counsel for the parties and going through the record, I am of the opinion that this petition deserves to succeed. During the course of hearing, copy of the plaint, copies of written statement filed separately by defendant 1 to 9, and defendant No. 10 and the application for amendment of plaint were shown to me by the learned counsel for the parties. As per the averments contained in the plaint, defendants 1 to 9 are owners in possession of the property as per their respective shares as detailed in para 1 of the plaint. Defendants 1 to 9 agreed to sell the property in question with all rights appurtenant to it to the plaintiff for a total consideration of Rs. 5,90,625/ and they got an agreement of sale written on 7.6.1985 in favour of the plaintiff. A sum of Rs. 10,500/ was paid by the plaintiff to defendant No. 1 as earnest money at the time of execution of the agreement but the agreement of sale was only signed by defendant No. 1 and defendants 2 to 9 slipped away and did not sign the same. Defendant No. 1 made an endorsement on the agreement in token of having received a sum of Rs. 10,500/. As per the terms of the agreement, defendants Nos. 1 to 9 were required to obtain a Clearance Certificate from the IncomeTax Department and the sale deed was agreed to be executed by 30.12.1985 on payment of the balance sale consideration and in the case of any delay in obtaining the Clearance Certificate the date for execution and registration of the sale deed was to be treated as extended. The expenses for stamp and registration were agreed to be borne by the plaintiffpurchaser. The plaintiff was also given an authority to get the sale deed registered through court in case of breach of the terms of the agreement on the part of the vendors. The plaintiff paid a further sum of Rs. 2000/ vide cheque dated 6.7.1985 to defendant No. 9. The plaintiff had been insisting upon the defendants to get the Clearance Certificate from the IncomeTax Department and registered the sale deed. The plaintiff further paid a sum of Rs. 73,875/ for the purchase of stamp paper required for registration of the sale deed and defendant No. 1 purchased the stamp paper and handed over the same to the plaintiff. Case of the plaintiff further goes that later on, the vendors became dishonest on account of an offer of higher price by defendants 10 and 11. But since the defendants vendors did not perform their part of the contract/agreement despite repeated requests made by the plaintiff and a registered notice issued to them, the present suit was filed for possession by way of specific performance and a further direction to defendants 1 to 9 to execute the sale deed. The defendants in their written statement denied the allegations as contained in the plaint. They even denied the execution of the agreement of sale of the property in dispute. The defendants have pleaded a quite different story and alleged that they had agreed to sell the property in question in favour of defendant No. 11 vide agreement of sale dated 11.5.1985 for a sale consideration of Rs. nine lacs and the said agreement was in possession of defendant No. 11.

By way of amendment, the plaintiff wants to plead a fact that defendants 1, 4 and 5 made additional demand from him on 9.1.1986 that if he gives them his plot along with rooms existing therein in Khasra No. 195, situated in village Sikanderpur Ghosi in addition to the sale consideration of their land, they will get the sale deed executed. The plaintiff further wants to plead that agreeing to this demand, he and defendants 1, 4 and 5 purchased stamp papers. The facts sought to be pleaded by way of amendment may or may not be true and the truthfulness of these facts can be ascertained by the court after considering evidence that may be led by the respective parties, but these averments at the face of it go to the root of the controversy raised in the suit and are thus quite necessary for properly and effectively deciding the controversy. Once the amendment is allowed, the defendants will get an opportunity to controvert or admit the same and set up their case accordingly and the amendment if allowed is not going to prejudice the claim of the defendants in any manner especially when the plaintiff has not yet examined any witness as has been noticed by the trial court in the impugned order. The amendment, if allowed, would rather help the trial court to come at a right and just conclusion. If the plaintiff fails to prove the facts which he now wants to plead by way of amendment, he will certainly not be entitled to get any relief on the basis thereof and if he succeeds to prove those facts by leading evidence, the defendants will get an occasion to belie or disprove the same by producing their evidence. Thus the trial court, in my view, was not right to decline the prayer for amendment.

In the result, the revision petition is allowed and the order dated 9.9.1993 of the trial court is set aside. Consequently, the application of the plaintiff for amendment of the plaintiff is allowed. Needless to say that any observation made therein shall confine to this order only and will not at any stage of the suit, be taken as an expression of opinion on the merits of the controversy raised in the suit. Amendment is, however, granted subject to payment of Rs. 3000/ as costs.

Revision petition allowed.