Judgment:
Rakesh Kumar Garg, J.
C.M. No. 7236-37-CII of 2009
1. Civil Miscellaneous application is allowed subject to just exceptions. Documents attached with this application are taken on record. CM disposed of.
Civil Revision No. 1425 of 2009
This is defendants' revision petition challenging the order dated 24.1.(sic) passed by Civil Judge (Jr. Divn.), Amritsar, whereby amendment application filed by respondent No. 1 and 2 (plaintiffs) for converting their suit of permanent injunction into a suit for possession by way of specific performance of the agreement to sell, has been allowed.
2. As per the averments made in this petition, respondent Nos. 1 and 2 filed a civil suit for permanent injunction restraining the defendants from selling/alienating the property in dispute to any other person other than the plaintiffs. In this suit the plaintiffs averred that defendants had entered into an agreement regarding sale of the said property to the plaintiffs for the total sale consideration of Rs. 46,25,000/- and they had executed agreement of sale dated 18.12.2005 in this respect of their favour and had received in advance Rs. 10 lacs as earnest money/part payment from the plaintiffs. The remaining sale consideration was agreed to be paid by the plaintiffs to the defendants at the time of execution and registration of the sale deed and the date for this purpose was fixed as 18.08.2006. It was also submitted that at the time of execution of agreement to sell, the possession of a part of the property was delivered by the defendants to the plaintiffs in part performance of the agreement to sell and the plaintiffs were in actual physical possession of the same and possession of the remaining property was to be delivered by the defendants to the plaintiffs at the time of execution and registration of the sale deed on the stipulated date. It was further the case of the plaintiffs that they came to know-that to defeat die rights of the plaintiffs in the suit property the defendants were trying to alienate the suit property in favour of some other persons other than the plaintiffs for which they had got no right. It was also stated that the plaintiffs had always been ready and willing to perform their part of the contract for making payment of the balance sale consideration to the defendants as was agreed to between the parties and in regard to the other necessary expenses but the stipulated date for registration and execution of the sale deed i.e. 18.8.2006 was yet to mature and therefore they filed the suit for permanent injunction against the defendants. In their plaint dated 1.2.2006 the plaintiffs also stated that cause of action accrued to them two days earlier when the defendants refused to honour the agreement to sell executed by them and threatened to alienate the suit property to some other persons ignoring the agreement to sell in their favour.
3. During the pendency of the suit, respondents moved an application dated 20.9.2007 for amendment of the plaint stating therein that during the pendency of the present suit the stipulated date of execution of the sale deed which was fixed as 18.8.1996 had expired and the defendants had failed to execute the sale deed nor they have delivered the possession of the remaining property to the plaintiffs and therefore the necessity arose to amend the plaint by converting the present suit of permanent injunction into a suit for possession by way of specific performance of the agreement to sell and therefore the application be allowed and the plaintiffs be allowed to amend their suit converting the suit of permanent injunction into one suit for possession by way of specific performance of the agreement to sell dated 18.12.2005.
4. The Trial Court vide impugned order dated 26.2.2009 allowed the aforesaid amendment application of the plaintiff-respondents.
5. Challenging the aforesaid order dated 26.2.2009, learned Counsel for the petitioner has vehemently argued that the impugned order is against the well settled proposition of law as settled in the case of Ajendraprasadji N. Pande and Anr. v. Swami Keshavprakeshdasji N. and Ors. 2007 (1) Civil Court Cases 500 (S.C.) and Vidyabi and Ors. v. Padmalatha and Anr. : AIR2009SC1433 , wherein it has been held that amendment in the pleadings cannot be allowed once the trial has commenced unless it could be shown that in spite of due diligence the matter could not be raised before the commencement of the trial. Elaborating his argument further learned Counsel for the petitioner has argued that in the case in hand, issues were framed as back as on 19.5.2006 and the case was adjourned for recording of the evidence of the plaintiffs to 20.9.2006 vide order dated 10.9.2007. It has been further submitted by the learned Counsel for the petitioner that the respondents had failed to bring their case into the ambit of proviso of Order 6 Rule 17 of the Code of Civil Procedure i.e. the plaintiffs had failed to establish on record that despite due diligence they could not seek the amendment of the plaint prior to the commencement of the trial.
6. Admittedly, the last date for execution of the alleged sale deed on the basis of the alleged agreement to sell was fixed as 18.8.2006 and thereafter the respondents did not move the application for amendment in the plaint, immediately. As the same was not done at the first instance and the trial Court continued with the-trial, the plaintiffs were not entitled to the amendment of the plaint and the impugned order is liable to be set aside.
7. I have heard learned Counsel for the petitioner. There is no dispute with the proposition of law as settled by the Hon'ble Supreme Court of India in the case of Ajendraprasadji N. Pande (supra) and Vidyabai and Ors. (supra).However, the contention raised by the learned Counsel for the petitioner in the facts and circumstances of the case is misconceived. It is not in dispute mat before the alleged stipulated date for execution of the sale deed of the property in dispute i.e. 18.8.2006 suit for possession by way of specific performance of the agreement to sell date 18.12.2005 was not permanent injunction on the alleged threat to their rights under the agreement to sell restraining the petitioners/defendants from alienating the suit land to some other persons other than the plaintiffs before the aforesaid stipulated date. It is also not in dispute that after 18.8.2006 when the petitioner/defendants allegedly failed to perform their part of the alleged agreement to sell the plaintiff-respondents were entitled to file the suit for possession by way of specific performance of the agreement to self dated 18.12.2005 for the suit property within a period of three years as provided under the Limitation Act. Admittedly, the amendment application was filed by the plaintiff-respondents on 20.9.2007. It is also relevant to point out here that no doubt issues were framed in the suit for permanent injunction on 19.5.2006, however, the trial could not commence immediately, thereafter as vide separate order dated 19.5.2006 application under Order 39 Rule 1 and 2 CPC filed by the plaintiff-respondents was also allowed and it seems from the zimni orders on the file of die trial Court which were perused by me with the help of the Counsel for the petitioner that file of the trial Court was sent to the Court of Sh. R.S. Rai, Additional District-Judge, Amritsar which was received only on 17.7.2007 and thereafter the case was fixed for consideration on the application filed under Order 9 Rule 7 CPC which was allowed vide order dated 28.7.2007 and thereafter the parties were allowed/to complete the pleadings and then for the first time vide order dated 24.8.2007 the case was adjourned for evidence of the plaintiffs. However, in the meantime, the petitioners filed another application for dismissal of the suit which was adjourned to 20.9.2007 and on that date the present application for amendment of the suit was filed.
8. Thus, from the aforesaid narration of facts, it cannot be stated that the plaintiff-respondents were not diligent for raising the question of amendment after the commencement of the trial as after framing of the issues on 19.5.2006 file was received from the Appellate Court on 17.7.2007 and on that date also the case was adjourned for consideration on the application filed by the petitioners which was allowed on 28.7.2007 and the parties were allowed to complete the pleadings up to 24.8.2007 on which date for the first time the case was ordered to be listed for 10.9.2007 for evidence of the plaintiff-respondents on filing of process fee/diet money/list of witnesses etc. Thus, contention of the petitioner that the respondents were not diligent in moving the application for amendment of the suit is without any substance. No doubt, the proviso to Order 6 Rule 17 CPC limits the power to allow amendment of the further commencement of trial but grants discretion to the Court to allow amendment if it feels that the party could, not have raised the matter before the commencement of the trial in spite of due diligence. The Hon'ble Supreme Court in the case of In re: Chander Kanta Bansal (sic) as under:
Rule 17 of Order 6 was omitted by the Code of Civil Procedure (Amendment) Act, 1999. However, before the enforcement of the Code of Civil Procedure (Amend lent) Act, 1999, the original rule was substituted and restored with an additional proviso. The proviso limits the power to allow amendment after the commencement of trial but grants discretion of the court to allow amendment should be liberaly exercised. The liberal principles which guide the exercise of discretion in allowing the amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be granted, while care should be taken to see that injustice and prejudice of an irremediate character are not inflicted upon the opposite party under pretence of amendment.
9. Thus, the principles which guide the exercise of discretion can allow the amendment after commencement of the trial so that multiplicity of proceedings should be avoided. It may be seen that in the present case, the plaintiff respondents could have filed even a fresh suit for possession by way of specific performance of the agreement within 3 years from 18.8.2006 and thus I find no fault in the impugned order whereby the trial Court has allowed the amendment in the pleadings sought by the plaintiff-respondents for conversion of their suit from permanent injunction to a suit for possession by way of specific performance of the agreement to sell in question. No merits,
Dismissed.