Jharkhand High Court
Defendant/ vs Shyam Kumar Gupta Son Of Sri Birendra ... on 19 February, 2019
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.5255 of 2017
Om Prakash Bhagat son of Sri Kamleshwar Bhagat, resident of Mouza
Whitty Bazar, Giridih, Town and P.S.-Giridih (T), P.O. Giridih, District-Giridih.
...... Defendant/Petitioner
Versus
1. Shyam Kumar Gupta son of Sri Birendra Prasad, resident of Mouza
Whitty Bazar, Giridih, Town and P.O. Giridih, P.S.-Giridih (T), District-Giridih.
2. Suraj Prasad Jaiswal son of late Kamta Prasad Jaiswal, resident of
Mouza Makatpur Muhalla Barganda, P.O.-Giridih, P.S.-Giridih (T), District-
Giridih, Jharkhand.
...... Plaintiffs/Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Anil Kumar, Sr. Advocate For the Respondents : Mr. Amar Kumar Sinha, Advocate Mr. Tarun Kumar Sinha, Advocate Mr. Sandeep Verma, Advocate
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08/Dated 19th February, 2019
1. The writ petition is under Article 227 of the Constitution of India wherein order dated07.08.2017 passed in Title Suit No.06 of 2007 by Civil Judge (Senior Division)-II, Giridih has been questioned whereby and whereunder a petition filed under Order VI Rule 17 making therein prayer for amendment for inserting alternate relief to the effect "that in case, the court is of the opinion that the lands of Plot No.935 and 1006 were wrongly included in the agreement for sale and the defendant had already sold 7 decimals of land in plot no.937 and 2 decimals plot no.940 before the agreement for sale then in that case such area of lands be deleted from the total area in the suit and the defendant be directed to transfer the remaining area after receiving balance consideration money from the plaintiff @ 15,500/- per katha."
The same having been allowed, this writ petition has been filed under Article 227 of the Constitution of India.
2. The brief facts of the case is that the plaintiffs/respondents have filed a 2 title suit No.06 of 2007 praying therein for decree of specific performance directing defendant/petitioner to execute the register the sale deed with respect to the suit land and to receive the balance consideration amount of Rs.30,45,833.00/- and accordingly the decree possession be given to the plaintiffs/respondents.
3. The case of the plaintiff is that the parties have entered into the registered agreement on 14.02.2005 for selling land in Khata No.1 pertaining to Plot No.927, 928, 931, 933, 1090, 1092 and 1006 and selling of Khata No.11 pertaining to Plot No.930 having total area 4.00 acres of Mouza Koldiha, P.S. Giridih and District-Giridih. It was agreed that the land will be sold out for consideration amount of Rs.37,45,833/- i.e. @ Rs.15,500/- per Kathaa and on the same day, the plaintiffs/respondents have paid RS.5,00,000/- as earnest money to the petitioner, which was accepted by him. It was also agreed that whenver the plaintiffs/respondents will tender the balance consideration amount of Rs.32,45,833/-, the petitioner shall execute and register the sale deed with respect to the suit land. The date of agreement was for a period of 6 months from the date of agreement but having failed in following the terms and conditions of the said agreement, the suit has been filed for specific performance of the agreement.
4. The trial has proceeded, evidence has been laid at that juncture, petition under Order VI Rule 17 has been filed by the plaintiffs/respondents praying therein:
"after the end of para 16(i) of the plaint a sub para (i) (a) be added as follows:-
In case the court is of the opinion that the lands of Plot nos. 935 and 1006 were wrongly included in the Agreement of sale dated 14/2/2005 and the defendant has already sold 07 decimals out of 46 decimal in plot nos.937 and 02 decimals out of 40 decimals in Plot no.940 before the Agreement of sale to Ramchandra Gope in that case, the area of the said plot nos.935 and 1006 be excluded from the total area of 4.00 acres of land in suit and area 07 dec. out of 46 dec. in Plot no.937 and 02 dec.
out of 40 dec. in Plot no.940 be deducted from the total area in suit and accordingly the defendant be directed to transfer the remaining area measuring 3.37 acres in favour of the Plintiffs on receiving balance consideration money from the Plaintiffs at the 3 rate of Rs. 15, 500/- per Katha within time fixed by the court."
The said amendment having been allowed, this writ petition has been filed by the petitioner/defendant.
5. The ground has been taken in assailing the aforesaid order that:-
(i) that the petitioner deliberately after lapse of about 10 years has filed the said application inspite of the fact that the said fact was within their knowledge.
(ii) the petitioner has failed to show before the trial Court the diligence that what led him not to file such application within time.
(iii) reference of Section 29 of the Specific Relief Act, 1963 has been made and referring to the said provision it has been submitted that if the contract cannot be specifically enforced, it may be rescinded and delivered up to be cancelled; and the Court, if it refuses to enforce the contract specifically, may direct it to be rescinded and delivered up accordingly, therefore in view of the provision of Section 29, the amendment having been allowed by the trial Court, is not proper.
6. While on the other hand, Mr. Amar Kumar Sinha, learned counsel for the respondents has objected the order passed by the Trial Court. He submitted that the agreement dated 14.02.2005 is for selling land in Khata No.1 pertaining to Plot No.927, 928, 931, 933, 1090, 1092 and 1006 and selling of Khata No.11 pertaining to Plot No.930 having total area 4.00 acres of Mouza Koldiha, P.S. Giridih and District-Giridih but the fact about selling of the land of Plot No.935, 1006, 937 and 940 since was not within the knowledge of the plaintiffs but it has been included in the agreement for sale, and therefore, after coming to know about the said fact, the jurisdiction of the trial Court as conferred under Order VI Rule 17 has been invoked, the trial Court after considering the fact that the suit is for specific performance of the agreement dated 14.02.2005 and since the lands pertaining to plot nos.935, 1006, 937 and 940 have already been sold out, therefore, the petitioner, since, has paid money for the said land also, hence, the said fact has been sought to be inserted by filing the aforesaid amendment 4 application since the said portion of land cannot be executed if the decree will be passed in the said suit rather the petitioner will be said to be entitled to get the money back, which he has paid @ Rs.15,500/-, therefore, the Court after taking into consideration this aspect of the matter, has rightly allowed the amendment so that the matter be adjudicated properly.
He submits that if the said amendment has been allowed, the petitioner is no way is going to be prejudiced since the same pertains to the factual aspects. After the amendment if the fact would be noticed by the Court that the said fact is not correct, the Court can take it into consideration at the time of the final judgment.
He has further submitted by referring to the provision of Order VI Rule 17 i.e. the scope of the amendment under the said provision is wide enough and the same can be exercised by the trial Court in order to render the proper and just decision and the same can be allowed at any stage of the suit.
He further submitted by refuting the arguments advanced on behalf of the petitioner regarding the applicability of the provision of Section 29, according to him it is not a case of rescinding the said agreement rather it is a case where a part of the property which has already been sold out, the said fact has been sought to be incorporated in the plaint.
He submits by referring to the provision of Section 20 of the Specific Relief Act, 1963 that the jurisdiction to the decree in specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so, but the discretion of the Court is not arbitrary but sound and reasonable, therefore, the amendment having been allowed by the trial Court suffers from no infirmity.
7. Having heard the learned counsel for the parties and after perusing the pleadings made in the writ petition as also the impugned order, the fact which has been gathered by this Court is that the suit for specific 5 performance has been filed to pass a decree of performance of the agreement dated 14.02.2005 for selling of land in Khata No.1 pertaining to Plot No.927, 928, 931, 933, 1090, 1092 and 1006 and selling of Khata No.11 pertaining to Plot No.930 having total area 4.00 acres of Mouza Koldiha, P.S. Giridih and District-Giridih.
8. The trial has proceeded, when it has been come at the stage of evidence, a petition under Order VI Rule 17 has been filed praying therein the following prayers:
"after the end of para 16(i) of the plaint a sub para (i) (a) be added as follows:-
In case the court is of the opinion that the lands of Plot nos. 935 and 1006 were wrongly included in the Agreement of sale dated 14/2/2005 and the defendant has already sold 07 decimals out of 46 decimal in plot nos.937 and 02 decimals out of 40 decimals in Plot no.940 before the Agreement of sale to Ramchandra Gope in that case, the area of the said plot nos.935 and 1006 be excluded from the total area of 4.00 acres of land in suit and area 07 dec. out of 46 dec. in Plot no.937 and 02 dec.
out of 40 dec. in Plot no.940 be deducted from the total area in suit and accordingly the defendant be directed to transfer the remaining area measuring 3.37 acres in favour of the Plintiffs on receiving balance consideration money from the Plaintiffs at the rate of Rs. 15, 500/- per Katha within time fixed by the court."
9. The Court having allowed the said amendment which is under challenge in this writ petition filed under Article 227 of the Constitution of India before this Court.
This Court thinks it proper before going into the legality and proprietary of the order, the scope of Order VI Rule 17 needs to be referred which is quoted hereinbelow:-
"Amendment of pleadings.-- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."6
10. It is evident from the provision of Order XI Rule 17 that amendment can be allowed:-
(i) when the nature of the suit is not changed,
(ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party,
(iii) when defeats the law of limitation, if fresh suit of amendment of plaint would be barred, then as a general rule it would be rejected but to avoid multiplicity, it can be allowed.
Reference may be made to the judgment rendered by the Hon'ble Apex Court in the case of Rajkumar Gurawara (Dead) Through LRS. vs. S.K. Sarwagi and Company Private Limited and Another, reported in (2008) 14 SCC 364 wherein it has been laid down that after completion of evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso to Order VI Rule 17 of C.P.C. which states that if the parties to the proceedings are able to satisfy the Court that in spite of due diligence they could not raise the issue before the commencement of trial and the trial Court is satisfied with their explanation, amendment can be allowed even after commencement of the trial and not otherwise. On the contrary, the first part of the Order VI Rule 17 of the C.P.C. makes it clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy.
Reference may also be made to the judgment rendered by the Hon'ble Apex Court in the case of Revajeetu Builders and Developers vs. Narayanaswamy and Sons and Ors., reported in (2009) 10 SCC 84 wherein the Hon'ble Apex Court has laid down the proposition that the courts have wide discretion in the matter of amendment of pleadings but Court's power must be exercise judiciously and with great care and while deciding applications for amendments, the Courts mast not refuse bona fide, legitimate, honest and necessary amendments and should permit mala fide, worthless 7 and/or dishonest amendments.
It is also settled position of law that the mere delay is no ground of dismissal of amendment where no prejudice is caused to the opposite party, reference may be made to the judgment rendered in the case of Dondapati Narayana Reddy vs. Duggireddy Venkatanarayana Reddy and ors., reported in (2001) 8 SCC 115 wherein the Hon'ble Apex Court by taking into consideration to advance the interest of justice and to avoid multiplicity of litigation has laid down that such prayer cannot be denied on hypertechnical grounds. The amendment should, generally, be allowed unless it is shown that permitting the amendment would be unjust and result in prejudice against the opposite side which cannot be compensated by costs or would deprive him of a right which has accrued to him with the lapse of time.
Reference of the judgment rendered by the Hon'ble Apex Court in the judgments in the case of Abdul Rehman and Anr. vs. Mohd. Ruldu and Ors., reported in (2012) 11 SCC 341 wherein it has been laid down that all amendments which are necessary for the purpose of determining the real questions in controversy between the parties should be allowed if it does not change the basic nature of the suit.
Reference may also be made to the judgment rendered by the Hon'ble Apex Court in the case of Mahila Ramkali Devi and Ors. vs. Nandram (Dead) through Legal Representatives and Ors., reported in (2015) 13 SCC 132 where the Hon'ble Apex Court held that the amendment application filed after lapse of 40 years be allowed on the ground that a party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction or rules or procedure. The Court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting mala fide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost.
It is not in dispute that normally, amendment in plaint is not 8 allowed if it changes the cause of action. However, where the amendment does not constitute an addition of a new cause of action, or raise a new case, but amount to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limitation. Processual justice requires that the events and developments subsequent to the institution of proceedings must be taken into consideration in appropriate cases to promote substantial justice. (Vineet Kumar vs. Mangal Sain Wadhera, reported in (1984) 3 SCC 352, para-16).
This Court thinks it proper also to discuss about the scope of amendment in a suit for specific performance. It is not in dispute that in a suit for specific performance and the relief is one granted by the Court, primarily on equitable principles, section 20 of the Act vests a wide discretion in the Court to grant or decline a decree for specific performance. However, the discretion is to be exercised in accordance with the settled principles of law applicable to the facts of the case.
It has been laid down by the Hon'ble Apex Court in the case of S. Rangaraju Naidu vs. S. Thiruvarakkarasu, reported in 1995 Supp (2) SCC 680 that in a suit for specific performance the alternative prayer can be allowed as per the settled principles of law since the principle of equity, good conscience, fairness and foundation of grant of relief for specific performance is the concept not introduced by judicial pronouncement but explicitly indicated by the legislature in the provision of Section 20 of the Specific Relief Act.
The Hon'ble Apex Court in the case of Kanshi Ram vs. Om Prakash Jawal and Ors., reported in (1996) 4 SCC 593 and S. Rangajaru Naida (supra) wherein the scope of Section 20 of the Act has been dealt with and therein observation has been made that section 20 spells out and indicates wide discretion that is vested in the Court of competent jurisdiction to grant or decline to grant a relief of specific performance for transfer of immovable property. The guiding principles for determination of such controversy have been conceitedly cogitated by various courts but to a common end. The common end 9 sought to be achieved is to avoid resultant in its hardship to one party while avoiding gain to the other by mere lapse of time attributable to any party.
An alternative prayer by a plaintiff in a suit cannot be construed as a waiver or an abandonment of the main relief in the suit. Alternative relief is a relief which is claimed by the party if the party is found to be not entitled to the principles of main relief claimed in the suit.
The jurisdiction vested in the Court to decline specific performance and grant alternative relief is a jurisdiction of equity, good conscience and fairness must be exercised in consonance with the settled principles of law.
The provision indicates the intention of the legislature to vest the Court with the wide discretion but still defines the extent of grant with which such power should be exercised.
11. In view of the aforesaid position of law, the factual aspect which has been involved in this case needs to be examined by this Court.
It is admitted position that the suit for specific performance has been filed for the land pertaining to Plot Nos.935, 1006, 937 and 940 apart from the other plots.
It is the admitted position that the land pertaining to the aforesaid plot numbers have already been sold out prior to the execution of the agreement. It is also admitted position that the petitioner has agreed to pay Rs.15,500/- per katha on the total land which was the subject matter of the agreement dated 14.02.2005. when the suit was at the stage of evidence, the petitioner has filed application under Order VI Rule 17 for making alternate prayer to the effect that that if the land has already been sold out, then in that case, such area of land be deleted from the total area as referred in the suit and the defendant be directed to transfer the remaining area after receiving balance consideration money from the plaintiff @ Rs.15,500/-
10per katha.
The question herein is that when the trial Court is adjudicating the issue, effective decree is to be passed in the suit for specific performance, if the agreement is for a part of portion of land but some of the portion of the land has been sold out, if the said fact would not be brought to the notice of the Court, there would be a decree for the performance of the agreement of the entire area of the land which was a subject matter of the agreement, in that situation, there would not be effective implementation of the decree.
12. Here in the instant case, admittedly the area pertaining to plot nos.935, 106, 937 and 940 have already been sold out before entering into the agreement on 14.02.2005 and if the said fact would not be incorporated in the plaint there will not be an effective decree for the reason that if the decree would be passed taking into consideration the details of the entire area as has been referred in the agreement dated 14.02.2005, in that situation, the said decree would not be effectively executed since the part of the area which has already been sold out, the title holder i.e. respondents/defendants being not the title holder will not be in a position to transfer the said land in favour of the petitioner and in that situation, the decree so far as that part of the area will be said to be ineffective. If the land has already been sold out, then the question of returning back the consideration money of that area of the land is required to be adjudicated by the trial Court. The same would be done if the part of the agreement would be part of the proceedings.
13. The Court has examined the provision of Section 29 of the Specific Relief Act, 1963 but the said provision is not applicable in the facts and circumstances of the instant case for the reason that the said provision speaks about rescinding of the agreement but here the case is not of the rescinding of the agreement rather the part of the terms and conditions is in question on the ground of selling out plot prior to execution of the agreement.
14. Learned counsel for the petitioner has raised the issue of delay and due 11 diligence, but according to the considered view of this Court since amendment is to be allowed even before the pronouncement of the judgment for effective, just and proper adjudication of the issue, hence this argument is having no force.
15. The question of due diligence is necessary to be looked into by the trial Court but the question herein is that if on technicality this prayer would not be allowed the effective adjudication cannot be enriched and the same will be said to suffer for the reason that if the decree would be passed for entire portion of the area which has already been sold out prior to execution of the agreement the said property will also be brought to the fold of litigation.
So far as the delay part is concerned as has been held in the judgment rendered in the case of S. Ranjaraju Naidu (supra) and Kanshi Ram (supra) the fairness for just and proper adjudication needs to be seen.
Herein the main relief sought for is not being sought to be changed rather by way of alternate relief the money which has been paid in lieu of the land which has already been transferred by virtue of sale deed is sought to be returned back, and therefore, applying the ratio as laid down in the aforesaid two judgments of the Hon'ble Apex Court i.e. S. Ranjaraju Naidu (supra) and Kanshi Ram (supra), the contention of the petitioner is not fit to be accepted, accordingly rejected.
16. In view of the aforesaid factual aspect and looking into the scope of Order VI Rule 17 it does transpires to this Court that the said amendment allowing the alternate prayer is in no way prejudicing the interest of the respondents/defendants since admittedly the money for the entire land as per the agreement has been accepted and it is also not in dispute the part of the land pertaining to Plot Nos.935, 1006, 937 and 940 have been sold out by him, therefore, there is no question of any prejudice rather if it will not be allowed, the plaintiff will suffer.
17. This writ petition has been filed under Article 227 of the Constitution of India, it is the position of law that the jurisdiction conferred to this 12 Court under Article 227 of the Constitution of India is very limited as has been held in the judgment rendered by Hon'ble Apex Court in the case of Shalini Shyam Shetty vs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to lay down therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Hon'ble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in AIR 1951 Calcutta 193, wherein it has been laid down that Article 227 of the Constitution of India does not vest the High Court with limit less power which may be exercised at the Court's discretion to remove the hardship of particular decisions. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Court's power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner.
18. The power of superintendence is not to be exercised unless there has been:-
(a) An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or
(b) gross abuse of jurisdiction or
(c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals.
19. Further, in the aforesaid judgment of the Hon'ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141 wherein it has been laid down that in exercise of jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to.
1320. The Hon'ble Apex Court has made it clear that except to this limited extent the High Court has no jurisdiction to interfere with the finding of facts.
21. Further, the judgment rendered by the Hon'ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice.
22. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appeallable. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields. Another distinction between these two jurisdictions is that under Article 226 the High Court normal annuls or quashes an order or proceedings but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made.
23. It has further been laid down regarding the powers to be exercised by the High Court under Article 227 of the Constitution of India. The High Court, in exercise of its jurisdiction of superintendence, can interfere in order only to keep the tribunals and courts subordinate to it within the bounds of its authority, in order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested with them and by not declining to exercise the jurisdiction which is vested in them. Apart from that, High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
1424. In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
25. In view of the facts and circumstances of the case and taking into consideration the scope of Order VI Rule 17 as also the scope of Article 227 of the Constitution of India, according to the considered view of this Court, there is no error apparent on the fact of record, therefore, this Court is declined to interfere with the order impugned.
26. In consequence thereof, the writ petition fails and is dismissed.
27. I.A. no.10933 of 2018 also stands disposed of.
(Sujit Narayan Prasad, J.) Saurabh