Madan Lal JaIn Vs. Saroj Sarpal and anr. - Court Judgment

Excerpt:
- - 1 and her husband, however, failed to execute the sale deed and transfer the flat in favor of defendant no. 1 and her husband but they failed to execute the sale deed and transfer the flat in defendant no. law on amendment of pleadings is well settled by a catena of decisions of the supreme court.k.s. gupta, j. (1) r.l. malhotra, defendant no. 2 has filed this application under order 6, rule 17 and section 151, civil procedure code alleging that the plaintiff filed suit for specific performance of the agreement dated 1.6.1991 and in the alternative for damages etc. against defendant no. 1 contending that the plaintiff was a tenant under defendant no. 1 in respect of front portion of the first floor of flat no. m- 84-a, greater kailash-i, new delhi @ rs. l,600.00 per month w.e.f. 1st may, 1983. on 1st june, 1991, defendant no. 1 entered into the aforesaid agreement to sell with the plaintiff for a consideration of rs. 5,10,000.00 . plaintiff paid rs. 50,000.00 in cash by way of earnest money and the balance sale consideration was to be paid according to the schedule mentioned in the agreement. defendant no. 2 is imp leaded as a party as aforementioned flat was sold to him by defendant no. 1 under a registered agreement to sell dated 19.11.1991.plaintiff has further alleged that during the subsistence of the agreement dated 1.6.1991,defendantno. 1 could not have entered into another agreement dated 19.11.1991 with defendant no. 2. (2) it is stated that the plaintiff has filed this suit in collusion with defendant no. 1 to cause loss to defendant no. 2. in her written statement, defendant no. 1 raised false plea that defendant no. 2 represented to her that he would get the aforesaid flat vacated from the plaintiff and as such a fake agreement dated 19.11.1991 was created. defendant no. 1 further falsely alleged that a sum of rs. l,00,000.00 which was given to her by defendant no. 2 through a cheque was returned to defendant no. 1 after the encashment of the cheque. (3) it is pleaded that prior to the execution of the alleged agreement dated 1.6.1991,defendant no. 1 and her husband pratap sarpal had entered into another agreement with defendant no. 2 for sale of the aforesaid flat on 5.4.1985 for a consideration of rs. 3,00,000.00 . out of this sale consideration. rs. l,20,000.00 were paid in advance by defendant no. 2 to defendant no. 1 and her husband. defendant no. 1 and her husband, however, failed to execute the sale deed and transfer the flat in favor of defendant no. 2 in the record of the builder-m/s. rama prastha builders pvt. ltd. in november, 1991, defendant no. 1 and her husband came to defendant no. 2 and asked him to advance some money as they were in financial crisis. defendant no. 2 asked them to refund rs. l,20,000.00 together with interest @18% per annum, totalling rs. 2,60,000.00 . it is stated that defendant no. 1 and her husband persuaded defendant no. 2 to pay another sum of rs. l,15,000.00 to get the said flat transferred in defendant no. 2's favor in the record of the builder. at that stage, agreement dated 19.11.1991 was reduced into writing. though, the sale consideration was mentioned therein as rs. l,15,000.00 but in fact it was rs. 3,75,000.00 including the said amount of rs. 2,60,000.00 . rs. 14,000.00 were paid in cash on 18.11.1991 while rs. l,000.00 in cash on 19.11.1991 by defendant no. 2. defendant no. 2 paid another sum of rs. 75,000.00 for getting the flat transferred in his name in the record of the builder. he later on came to know that defendant no. 1 paid only rs. 5,750.00 by cheque to the builder for the purpose of transferring his name in their record. it is further alleged that defendant no. 2 is a bona fide purchaser for valuable consideration without notice of the alleged agreement dated 1.6.1991 defendant no. 1 and her husband wrote a letter to the plaintiff to attorn to defendant no. 2 and they also gave power of attorney to enable him to file petition against the plaintiff. defendant no. 2 filed petition for eviction against the plaintiff in the court of the rent controller, delhi. it is alleged that when defendant no. 2 came to know about the execution of the alleged agreement dated 1.6.1991 from the written statement filed by the plaintiff in the eviction proceedings, he approached defendant no. 1 and her husband. they told him that the said agreement was cancelled prior to the execution of the agreement dated 19.11.1991 and they handed over to him relevant correspondence exchanged between them and the plaintiff. defendant no. 2 could not raise the said pleas in the written statement since the original agreement and the receipt dated 5.4.1985 were not available. aforesaid pleas are sought to be incorporated in the written statement by defendant no. 2 by seeking additions in existing para no. 3 of the preliminary objections and paras 4, 6, 14 & 19 of the written statement on merits. (4) in the reply, plaintiff has alleged that he came to know about the alleged transaction between the defendants only when he received a notice from the court of the additional rent controller, delhi of the suit being no. 105/92 filed against him by defendant no. 2 on the ground of non-payment of rent. defendant no. 2 all along was aware of the agreement dated 1.6.1991 but still he acted in illegal and mala fide manner by entering into the agreement dated 19.11.1991 to deprive the plaintiff of his legible claim in respect of the flat in question. amendment sought introduces a new case which defendant no. 2 cannot be permitted to set up. (5) in her reply, defendant no. 1 has denied that any agreement dated 5.4.1985 was entered into between her and defendant no. 2 for sale of the flat or any consideration of rs.3,00,000.00 was agreedto, as alleged. defendant no. 1 and her husband did not even know defendant no. 2 in 1985. it is denied that she or her husband persuaded defendant no. 2 to pay a further sum of rs. 1,15,000.00 or that any amount over and above rs. 1,00,000.00 was paid in cash by defendant no. 2, as alleged. (6) i have heard the parties' counsel and have also taken through the record. (7) in short, by the proposed amendment, defendant no. 2 seeks to raise the plea, that defendant no. 1 and her husband had earlier entered into another agreement dated 5.4.1985 for a consideration of rs. 3,00,000.00 for sale of the flat in question and a sum of rs. l,20,000.00 was paid in advance by defendant no. 2 to defendant no. 1 and her husband but they failed to execute the sale deed and transfer the flat in defendant no. 2's favor in the record of the builder; that defendant no. 2 on being approached by defendant no. 1 and her husband in november, 1991 to advance some money paid rs. l,15,000.00 through a cheque and in cash to them and at that stage agreement to sell dated 19.11.1991 was again executed. law on amendment of pleadings is well settled by a catena of decisions of the supreme court. (see: pirgonda hongonda patil v. kalgonda shidgonda patil & ors., : [1957]1scr595 ; jai ram manohar lal v. national building material supply, : [1970]1scr22 ; haridas aildas thadani & ors. v. godrej rustom kennani, : air1983sc319 ; ishwardas v. state of madhya pradesh & ors., : (1979)4scc163 ; and panchdeo narain srivastava v. km. jyoti sahay and anr., : air1983sc462 ). all amendments are to be allowed which satisfy the two conditions, (a) not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. amendment can only be refused where the other party cannot be placed in the same position as if the pleadings had been originally correct, but the amendment would cause him an injury which could not be compensated in terms of money, or where the plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation. submission advanced on behalf of the non-applicants opposing the amendment was that the suit of defendant no. 2 for specific performance on the basis of either of the two agreements dated 5.4.1985 or 19.11.1991 has now become barred by limitation and the amendment if allowed would have the effect of bringing the claim within limitation period and that the agreement dated 5.4.1985 has been fabricated by defendant no. 2 to defeat the suit of the plaintiff. argument is fallacious inasmuch as defendant no. 2 is not seeking the enforcement of either of the aforesaid two agreements against defendant no. 1 but is simply resisting the claim for specific performance of the agreement dated 1.6.1991 in plaintiff's favor further it is not the stage of going into the truth or falsity of the aforesaid agreement dated 5.4.1985. suit is at its initial stage. amendment sought thus deserves to be allowed. 98.consequently, application is allowed on payment of rs. 2,000.00 as cost and defendant no. 2 is permitted to amend the written statement on the lines indicated in paras 12 to 17 of the application. --- *** ---(8) amended written statement be filed within three weeks.