Tarsem Singh vs Daljit Kaur and others

S.S. Kang, J.—This revision petition is directed against the order, dated 15th November, 1984, of the learned Subordinate Judge, First Class, Jullundur, whereby he has rejected an application under Order 6 Rule 17, Civil Procedure Code, made by the petitioner. It has been filed in the following circumstances.

Tarsem Singh and his brothers filed a suit for the recovery of Rs. 20,000/ being an earnest money and damages fro the nonperformance of the agreement for sale. The suit was contested by the defendants. The plaintiffs filed an application for amendment of the plaint and the same was allowed. They were permitted to plead two additional facts, namely, that defendant No. 2 had cancelled the power of attorney of defendant No. 1 and defendant No. 2 had gifted his land in favour of the grandson of defendant No.1. The plaintiffs filed another application seeking amendment to the plaint. They wanted to add that the plaintiffs and defendant No. 3 were always ready and willing to perform their part of the contract and were still ready and willing to perform that part, and that the transfer of land by defendant No. 2 in favour of defendant No. 4 was illegal and was hit by the principles of the lis pendence and the transfer had been made with the intention to commit a fraud on the plaintiffs and defendant No. 3. They also impleaded Sarabjit Singh, defendant. They wanted to amend the prayer clause while seeking the relief of specific performance of the agreement of sale by possession and in the alternative, for the recovery of Rs. 20,000/. So this application was opposed by the defendants. They pleaded that the present amendment should not be allowed because the plaintiff never had the intention to seek specific performance of the agreement of sale and had in fact given up this relief, and set up inter alia a new case. This relief had not been claimed in the original suit and not even in the first amendment application. The plaintiffs had never pleaded that they had been ready and willing to perform their part of the agreement and were ready and willing to do so. Sarbjit Singh had not been pleaded through the first amendment even though the gift in his favour had been challenged.

The learned trial Judge was impressed by the stand taken by the defendants. He came to the conclusion that by omitting to mention in the plaint that the plaintiffs had been and were still ready and willing to perform their part of the contract for sale of immovable property and by this lapse, a valuable right had accrued to the defendants, and the amendment sought to bring about a new cause of action. In reaching this conclusion, the learned Judge sought sustenance from the decisions in Mahmood Khan and another v. Ayub Khan and others, AIR 1978 Allahabad 563, and Bhubaneswar Patel v. Janak Patel and others, AIR 1976 Orissa 216.

Sh. Ravinder Seth, Advocate, learned counsel for the petitioner, has argued that the law regarding amendment of pleadings is very liberal. All amendments which are bona fide and not made with some ulterior or oblique motive are permitted by the Courts. In the present case, the plaintiffs had failed to mention certain facts due to inadvertence. They made an application for amendment when the limitation for filing the new suit was still there. In support of his contention, he was relied upon two decisions of this Court in Rama Nand Chaudhary v. Mst. Bhonri and others, AIR 1978 P&H 291, Sardar Hari Bachan Singh v. Major S. Harbhajan Singh and another, 1975 PLR 21; and Smt. Dulla Devi v. Smt. Ram Kaur, 1975 P.L.R. 739. Indeed the decisions cited by the learned counsel for the petitioner, do support his case. Rama Nand Chaudhary''s case (supra) fully covers the present controversy. In that case, the vendee filed a suit for specific performance of the contract of sale, and had omitted to mention in the plaint that the plaintiff had been and was still ready and willing to perform his part of the contract and the breach of the contract was permitted by the defendant. He made an application under Rule 17 Order 6, Civil Procedure Code, for making an amendment in the plaint seeking to incorporate these ingredients. This prayer was declined and the application was dismissed. The plaintiff came in revision and the same was allowed. It was observed :

"The stage for recording of evidence had admittedly not yet arrived and the plaintiff made the application for leave to amend the plaint in this crucial respect at the earliest possible opportunity. There was no delay on the part of the plaintiff to make the application and the order of the trial Court declining to permit the amendment would result in grave injustice to the plaintiff as such a plea is necessary in a suit for specific performance of a contract and the order suffers from material irregularity in the exercise of the Court''s jurisdiction under O.6, R. 17, AIR 1976 Cal. 115."

In Sardar Hari Bachan Singh''s case (supra) a prayer to amend the plaint by adding a new relief was allowed to be incorporated and it was held that there was no injustice caused to the opposite side by the amendment and they could be compensated by costs, and it was further held that a plaintiff may be permitted by amendment even to add a new cause of action, and the defendant may add a new defence and even a new case may be allowed to be introduced. Smt. Dulla Devi''s case (supra) is an authority for the proposition that an amendment can be allowed even if it is sought after a long delay and even in second appeal, and if the allegations of a fact made were being adhered to even after the amendment, the main purpose of which was to make a necessary prayer so that an appropriate relief is demanded in place of one which may not be granted in law. In the presence of these authoritative pronouncements of our Court on the subject, the learned trial Judge has acted with grave irregularity by following the ratio of the decisions of other High Courts. The case is fully covered by the decisions of this Court mentioned above.

Consequently, I allow the application of the plaintiffs for leave to amend the plaint conditionally on their paying to the contesting defendants or their counsel in the trial Court a sum of Rs. 200/ as costs. Further costs of this petition would be borne by the plaintiffs as incurred by the respondents.