Atul Kumar And Others vs Rishi Pal And Another on 10 December, 2014

[Cites 10, Cited by 1]

Punjab-Haryana High Court

Atul Kumar And Others vs Rishi Pal And Another on 10 December, 2014

Challenge in the present revision petition is to the order dated 04.05.2012 (Annexure P5), whereby the Civil Judge (Jr.Divn.) Jagadhri has allowed the application filed by the plaintiff-respondent, seeking amendment of the plaint from the suit of permanent injunction to the suit for specific performance and rejected the application, filed by the petitioner-defendants under Order 7 Rule 11 CPC.

Counsel for the petitioners has vehemently submitted that the order is not justified as on the date of filing of the suit, the cause of action for filing application for specific performance was already in place and the last date for executing the agreement was over. Therefore, by allowing the amendment application, a time-barred cause of action has been allowed by the Trial Court. He has placed reliance upon the judgment of the Apex Court in M/s Virgo Industries (Eng.) P. Ltd. Vs. M/s Venturetech Solutions P. Ltd. 2013 (1) SCC 625 and the judgments rendered by this Court in Dharam Dev Vs. State of SAILESH RANJAN Punjab 2001 (2) RCR (Civil) 496 and Narinder Singh Vs. Assa Singh 2010 (2) 2014.12.11 09:49 I attest to the accuracy and integrity of this document CR No.2994 of 2012 -2- PLR 805. Argument has also been raised that conversion of the suit from permanent injunction into specific performance cannot be allowed as it would change the cause of action altogether. Lastly, the argument raised is that once the Trial Court itself had come to the conclusion that it did not have jurisdiction to entertain the suit for specific performance and sent the same to the District Judge for being assigned to the competent Court, it could not have allowed the application for amendment.

Counsel for the respondents, on the other hand, has opposed the argument raised by the counsel for the petitioners on the ground that the cause of action took place after filing of the suit for permanent injunction in view of the writ petition pending in this Court and therefore, judgment of the Apex Court rendered in M/s Virgo Industries' case (supra) was not applicable and placed reliance upon the judgment of this Court in Kuljit Singh Vs. Sukhdev Singh & others 2009 (3) RCR (Civil) 751 to submit that once amendment was being allowed, the suit for permanent injunction could be converted into suit for specific performance.

In order to resolve the deadlock, reference has to be made to the facts of the case.

A perusal of the paperbook would go on to show that the suit for permanent injunction was filed on 05.06.2010 regarding 17 acres 5 kanals 5 marlas of land situated in Village Jagdhouli, Tehsil Jagadhri District Yamuna Nagar, on the strength of an agreement to sell dated 04.01.2007, executed by the defendants in the suit in favour of the respondent-plaintiffs. As per the agreement, a total sum of `1,83,80,000/- was payable @ `8 lacs per acre and the defendants had received a sum of `40 lacs as earnest money. The last date was fixed as 05.06.2007 for execution and the sale deed was to be executed and SAILESH RANJAN registered on 07.06.2007 and the plaintiff had remained present in the office of 2014.12.11 09:49 I attest to the accuracy and integrity of this document CR No.2994 of 2012 -3- the Sub-Registrar, Mustfabad, for the balance sale consideration and expenses. He had got his presence marked on the same day before the Executive Magistrate on account of the non-appearance of the defendants. On 08.06.2007, when they were contacted, he was asked to prepare the demand draft for the balance sale consideration and that they would register the sale deed on 09.06.2007 and accordingly, he had prepared the demand draft and again reached the office of the Sub-Registrar. On that day, it came to his knowledge that this Court in CWP No.4552 of 1985, had restrained the defendants from alienating the suit land vide order dated 25.05.2007 and therefore, the sale deed could not be executed and registered in favour of the plaintiff. It was further mentioned in the plaint that 3- 4 months ago, the writ petition had been decided by this Court and the order restraining the defendants had been vacated and the defendants had every right to alienate the suit land. It was, in such circumstances, that injunction was prayed for.

Thereafter, the application under Order 6 Rule 17 CPC was filed on 18.01.2012 (Annexure P1) for amendment of the plaint wherein details were given that by virtue of the decision dated 19.08.2008, the writ petition had been allowed and the Collector Agrarian, Jagadhri was directed to redetermine the area and holdings of the surplus area owned by the big land owners and the parties had been directed to appear before the Collector, Agrarian on 29.09.2008. It was further mentioned that an order was passed on 25.04.2011 by the Trial Court, directing the defendants to produce the copy of order passed by the Collector, Agrarian and the defendants had produced the same due to which, the cause of action had arisen to the plaintiff to file a suit for specific performance. It was also mentioned that one of the defendants, namely, Suresh Kumar, defendant No.7 had executed the sale deed in the name of the wife of the plaintiff. SAILESH RANJAN Accordingly, amendment for the relief of specific performance was prayed for on 2014.12.11 09:49 I attest to the accuracy and integrity of this document CR No.2994 of 2012 -4- the strength of the order passed by the Collector, Agrarian dated 09.09.2011.

The application was resisted by the present petitioners on the ground that the last date for execution of the sale deed was 05.06.2007 and the suit for permanent injunction was filed in the year 2010 and the applicant had a right to file a suit for specific performance at that point of time and therefore the present application was not maintainable. The relief claimed was barred by the Limitation Act and a time-barred relief could not be granted by way of amendment. The plaintiff had filed an application for being impleaded in the proceedings before the High Court and that the order was passed in his presence on 19.08.2008 and it was well within his knowledge but he did not file a suit for specific performance but filed a suit for permanent injunction against the defendants and accordingly, the amendment was not permissible, at this stage, as he had knowledge and he could not change the entire suit.

After considering the respective stands of the parties, the Trial Court has allowed the application by noticing that a prima facie view has to be taken as to whether the right to amend the plaint was there for the purposes of determining the real controversy between the parties. The order of the Collector, Agrarian dated 09.09.2011 determined the title of the defendants and the plaintiffs' cause of action accrued from that date and therefore, the application for amendment of pleadings, as per the satisfaction of the Court was there that the cause of action had accrued subsequently. It was further held that it is a mixed question of law and fact, for which, evidence need to be adduced and accordingly, the application for amendment under Order 6 Rule 17 was allowed. The corresponding application under Order 7 Rule 11 for rejection of the plaint was, accordingly, dismissed and the case was sent to the District Judge, Yamunanagar for being sent to the Court of competent jurisdiction since the Trial Court which was trying SAILESH RANJAN the suit for permanent injunction had only jurisdiction upto `2 lacs and the 2014.12.11 09:49 I attest to the accuracy and integrity of this document CR No.2994 of 2012 -5- dispute pertained to the agreement in question, of which, Court fees of `5,37,550/- had been affixed.

The argument raised by counsel for the petitioners, at first blush, seems attractive, in view of the binding precedent of the Apex Court judgment in M/s Virgo Industries' case (supra). However, on a closure perusal of the record of the file, this Court is of the opinion that the submissions made by counsel for the petitioners do not warrant any interference in the impugned order.

As already noticed, the agreement in question was dated 04.01.2007, the last date for its execution was 05.06.2007 and the suit was filed on 05.06.2010, for permanent injunction, narrating all the facts regarding the pendency of the writ petition. It has been specifically averred that vide order dated 19.08.2008, the writ petition had been allowed and therefore, the parties were in a position to alienate the property since earlier, there was a stay dated 25.05.2007. However, in the opinion of this Court, the Trial Court was well justified by noticing that the Collector had been directed to reconsider/redetermine the land holding and the final order was passed only on 09.09.2011, which order the defendants were holding back. On filing an application for production of the said order, the same was produced before the Trial Court on 25.11.2011. The order passed by the Collector, Agrarian was dated 09.09.2011, on the basis of which, the litigation became final regarding the surplus area and the plaintiffs' right to file the suit for specific performance crystallised. Thus, it does not lie in the mouth of counsel for the petitioners to say that all the ingredients of the case were complete for filing of the suit for specific performance, as per the averments made in the original plaint and that the application for amendment was time-barred. The application was allowed by the Trial Court on 25.04.2011 and a direction was issued to produce the copy of the SAILESH RANJAN order and on the decision of the surplus area proceedings by the Collector on 2014.12.11 09:49 I attest to the accuracy and integrity of this document CR No.2994 of 2012 -6- 09.09.2011, the application for amendment was immediately filed on 18.01.2012 and thus, in the above facts and circumstances, it cannot be said that the plaintiffs had any earlier cause of action at the time of filing of the suit for permanent injunction.

The judgment passed in M/s Virgo Industries (supra), thus, is not applicable to the facts and circumstances of the present case, since in the said case, there was no such bar against the plaintiffs from filing the suit for specific performance as the defendants in that case were only denying the execution of the sale deeds on the basis of some notices issued by the Central Excise Department regarding pending revenue demands. In the present case, this court had allowed CWP No.4552 of 1985 on 19.08.2008 and directed the Collector to redetermine the holdings of the big land-owners, of whom, the petitioners are LRs. Once their right had crystallised, as per order dated 09.09.2011, a cause of action accrued to the plaintiffs to file the suit.

The judgment passed in M/s Virgo Industries (supra) has also been distinguished by the Apex Court in Rathnavathi & another Vs. Kavita Ganashamdas JT 2014 (12) SC 219 wherein it has been held that the rigour of Order 2 Rule 2 would not be there at the initial stage where there was a threat to dispossess and the suit for permanent injunction and one for specific performance could be founded on different causes of action at the same point of time and also could be filed simultaneously. Similarly, in S.Natarajan (Dead) through LRs Vs. Inbasegaran & another JT 2014 (12) SC 293, it was held, while placing reliance upon the judgment passed by the Apex Court in Gurbux Singh Vs. Bhooralal 1964 (7) SCR 831 that two suits could be filed in case of eminent threat for dispossession and the cause of action for specific performance could be different and would only arise on the denial by the defendants and the judgment SAILESH RANJAN passed in M/s Virgo Industries (supra) was again distinguished and held not to 2014.12.11 09:49 I attest to the accuracy and integrity of this document CR No.2994 of 2012 -7- be applicable.

The judgment in the case of Dharam Dev (supra) is also not applicable to the facts and circumstances of the present case as in the said case, the dispute was regarding Civil Court decrees of the year 1943 and the suit was filed in the year 1999 and accordingly, the amendment, which had been allowed, was set aside.

Similarly, the observations made in the case of Narinder Singh (supra) would also not be applicable since in the said case, the appellants were the plaintiffs, challenging the findings of the Lower Appellate Court, who had dismissed the suit. This Court noticed that the suit was filed one year after the date fixed for execution of the sale deed and the benefit of amendment was taken to convert the suit into a suit for specific performance from the suit for permanent injunction. In that background the Court held that there was no ground to interfere and rather the judgment goes against the present petitioners.

Counsel for the plaintiff-respondents is well justified in placing reliance upon the judgment of this Court in the case of Kuljit Singh (supra), in which case, further reliance has been placed upon the judgment of the Apex Court in Ajendraprasadji N. Pande Vs. Swami Keshavprakeshdasji N. 2007 (1) Civil Court Cases 500 and Vidyabai Vs. Padmalatha 2009 (1) RCR (Civil) 763, in which it was specifically held that in order to avoid multiplicity of litigation, the amendment is to be allowed and the suit can be converted from a suit of permanent injunction. In Revajeetu Builders & Developers Vs. Narayanaswamy & Sons & others 2009 (10) SCC 84, the principles of amendment were laid down and it was held that it is necessary to be seen whether it is imperative and proper for adjudication of the case and whether it is bona fide or mala fide request. The proposed amendment, whether it will fundamentally change the nature and SAILESH RANJAN character of the suit, has also to be seen and kept in mind and the Court should 2014.12.11 09:49 I attest to the accuracy and integrity of this document CR No.2994 of 2012 -8- not refuse bona fide, honest and necessary amendments and allow the same but deny the mala fide one's. The following principles were laid down:

"67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

                               (5)       Whether the proposed amendment constitutionally          or
                               fundamentally          changes   the   nature   and   character    of
                               the case? And
                               (6)     As a general rule, the court should decline amendments if a

fresh suit on the amended claims would be barred by limitation on the date of application."

68. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.

69. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner.

70. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."

In Abdul Rehman & another Vs. Mohd. Ruldu & others 2012 (11) SCC 341, it has specifically been held that amendments which are necessary for determining the real question in controversy should be allowed and Courts should always be liberal in accepting the same as the object of the rule is to try the merits SAILESH RANJAN 2014.12.11 09:49 I attest to the accuracy and integrity of this document CR No.2994 of 2012 -9- of the case and to minimise litigation.

In such circumstances, it cannot be said that the amendment allowed was not justified as it was necessary, keeping in view the facts and circumstances of the case, especially keeping in view the fact that the petitioners have taken `40 lacs and themselves concealed the fact that there was litigation pending regarding the land in question in a writ petition filed wayback in 1985. It is further to be noticed that defendant No.7, in the family of the plaintiffs, has accepted the fact of the agreement which is between the parties and executed a sale deed of his share on 02.01.2012, before the application for amendment was filed. Accordingly, he was not arrayed as defendant in the amended plaint which was attached along with the application for amendment.

The last argument that the Court had no pecuniary jurisdiction, is also without any basis since at that point of time, the Court was never trying the suit for specific performance and only trying a suit for permanent injunction. Keeping in view the fact that the Court is not going into the merits of the case and the claim is to be decided at the trial of the suit, it would not deprive the Court from deciding the said application merely because, subsequently fresh cause of action has arisen for claiming another relief which was not the original claim. Reference can be made to the two judgments of the Apex Court on this aspect, namely, Lakha Ram Sharma Vs. Balar Marketing Private Limited 2008 (17) SCC 671 wherein it was held as under:

"4. It is settled law that while considering whether the amendment is to be granted or not, the Court does not go into the merits of the matter and decide whether or not the claim made therein is bonafide or not. That is a question which can only be decided at the trial of the Suit. It is also settled law that merely because an amendment may take the suit out of the jurisdiction of that Court is no ground for refusing that amendment. We, therefore, do not find SAILESH RANJAN any justifiable reason on which the High Court has refused this 2014.12.11 09:49 I attest to the accuracy and integrity of this document amendment. Accordingly, the impugned order is set aside and that CR No.2994 of 2012 -10- of the trial court is restored. We, however, clarify that as the appellant has now raised the claim from Rs. 1 Lakh to Rs. 10 Lakh, the trial court will determine, whether or not Court Fees are correctly paid."

Similarly, in Tara V. Ganju & another Vs. Basant & Co. & others 2013 (12) JT 112, while relying upon the earlier judgment in Lakha Ram Sharma (supra), the Apex Court allowed the amendment which had been declined by the Trial Court on the ground that if the application was allowed, it would result in ousting the pecuniary jurisdiction of the Court.

Accordingly, keeping in view the above discussions, this Court is of the opinion that the issue of pecuniary jurisdiction would not be a bar, as such, for the Trial Court to decide on the issue of amendment, which was necessary for the just decision of the case and accordingly, this Court is of the opinion that there is no merit in the present revision petition and the same is, hereby, dismissed.


            10.12.2014                                                    (G.S.SANDHAWALIA)
            sailesh                                                              JUDGE




SAILESH RANJAN
2014.12.11 09:49
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