Madhya Pradesh High Court
Vishnu Prasad vs Deced. Smt. Chhitabai Thru. Lrs. Smt. ... on 25 February, 2016
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Writ Petition No.7993/2015
25/02/2016
Shri A. S. Kutumble, learned Senior Counsel with
Shri Vivek Phadke, learned counsel for the petitioner.
Shri Veer Kumar Jain, learned counsel for the
respondents.
The petitioner before this Court has filed this present petition being aggrieved by the order dated 03/09/2015 passed in Civil Suit No.20-B/2015 by III Additional District Judge, Indore on an application preferred by the petitioner who is a plaintiff under Order VI Rule 17 of the Code of Civil Procedure, 1908. The petitioner is also aggrieved by order dated 30/10/2015 passed by XVIII Additional District Judge, Indore, on a review application preferred by the petitioner.
2- The facts of the case reveal that the petitioner has entered into an agreement with the respondents in the year 1997 for sale of land bearing Survey No.392, 394 and 435 admeasuring 8.33 acres situated at Village Musakhedi, Tehsil and Distt. Indore. The petitioner who is plaintiff before the trial Court has filed a civil suit on 08/03/2001 claiming refund of the money alongwith interest paid by the petitioner to the defendants.
3- The civil suit is also on record and the civil suit reflects that specific pleadings were made categorically stating -2- therein that the land in question is subject matter of Urban Land (Ceiling and Regulations) Act, 1976 and it has been declared surplus and therefore, as litigation is pending in respect of the aforesaid land, the plaintiff wants his money alongwith interest back.
4- In the year 2006, an application was preferred by the plaintiff under Order VI Rule 17 of the CPC and a prayer for specific performance of contract was made. It is an undisputed fact that the amendment application in which a prayer in respect of specific performance of contract was made was dismissed on 01/05/2006 and a writ petition was preferred against the order dated 01/05/2006 and the same was also dismissed by this High Court. No Special Leave Petition was preferred before the Hon'ble Supreme Court.
5- The present petitioner who is plaintiff has again in the year 2015 now filed an amendment application under Order VI Rule 17 of the Code of Civil Procedure and another application was also preferred under Order I Rule 3(B) of the Code of Civil Procedure for impleadment of State of Madhya Pradesh. The trial Court has dismissed both the applications. 6- Learned Senior Counsel has vehemently argued before this Court that the trial Court has erred in law and facts in dismissing the subsequent amendment application. He has further stated that the plaintiff was not aware about the outcome -3- of the writ petition filed against the order passed by the competent authority and he was also not aware about the order passed in writ appeal in respect of litigation between the State of Madhya Pradesh and the defendants/respondents. 7- It has further stated that in the year 2013 when it came to the notice of the present petitioner who is plaintiff that the land has been cleared from the provisions of Urban Land (Ceiling and Regulations) Act, 1976 in the year 2013, as the judgment was delivered by the Division Bench in the year 2013, the plaintiff has promptly filed an amendment application. His contention is that the trial Court has erred in law and facts in rejecting the second amendment application which was filed afresh on account of fresh cause of action.
8- On the other hand, learned counsel for the respondents/defendants has vehemently argued before this Court that the plaintiff was very much aware about the order passed by this Court in the year 2006 itself as he has filed an application on 31/07/2006 for placing the judgment passed in W.P.No.1274/2000 on record. It has further argued that since 2006 to 2013, nothing prevented the plaintiff to file amendment application and therefore, the trial Court was justified in rejecting the subsequent amendment application. 9- He has submitted that the suit for recovery is a 'B' class suit and now plaintiff wants to convert it into 'A' class suit, -4- meaning thereby, the nature of the suit is going to be changed and therefore, the trial Court was justified in passing the impugned order.
10- Learned Senior Counsel has placed reliance upon a judgment delivered by the apex Court in the case of Ragu Thilak D. John Vs. S. Rayappan & Ors. reported in (2001) 2 SCC 472, Vineet Kumar Vs. Mangal Sain Wadhera reported in (1984) 3 SCC 352 and Nichhalbhai Vallabhai & Ors. Vs. Jaswantlal Zinabhai & Ors. reported in AIR 1966 SC 997 and his contention is that in light of the aforesaid judgments, the writ petition deserves to be allowed and the impugned order passed by the Court below deserves to be quashed.
11- Heard learned counsel for the parties at length and perused the record.
12- In the present case, it is an undisputed fact that in the year 1997 the parties have entered into an agreement. It is also an undisputed fact that the land in question was subject the matter of Urban Land (Ceiling and Regulations) Act, 1976 and it was declared surplus. It is again an undisputed fact that the plaintiff who is petitioner before this Court has filed a suit for recovery claiming the amount paid by him alongwith interest stating categorically in the plaint that the suit lands are subject matter of Urban Land (Ceiling and Regulations) Act, 1976 and therefore, he wants his money back, meaning thereby, the -5- plaintiff was aware of the fact that the land was become surplus and has opted for refund of the money.
13- Not only this, in the year 2006 he was aware about the judgment delivered by this Court in respect of proceedings under the Urban Land (Ceiling and Regulations) Act, 1976. A writ petition was filed by the land owners who are respondents before this Court, i.e. W.P.No.1274/2000 and the same was allowed and a copy of the judgment was brought on record before the trial Court by the petitioner himself who is the plaintiff on 31/10/2015, meaning thereby, he was certainly aware about the judgment passed by the writ Court in the year 2006. 14- It is true that a writ appeal i.e. Writ Appeal No.641/2007 was preferred against the aforesaid judgment and the order passed by the learned Single Judge was affirmed by order dated 17/04/2013 and the present amendment application has been filed in the year 2015.
15- In the considered opinion of this Court the plaintiff was aware about the factum of the judgment delivered in writ appeal by which the land was cleared from the proceedings under the Urban Land (Ceiling and Regulations) Act, 1976 in the year 2006. The another important aspect of the matter is that a similar amendment application was preferred by the plaintiff in the year 2006 and the trial Court has dismissed the amendment application on 01/05/2006. A writ petition was -6- preferred before this Court i.e. W.P.No.2705/2006 and this Court in paragraph No.7 to 11 has held as under:-
"7. In my view, the trial is right. In somewhat similar facts, this Court in the case of Chandra Kumar Vs. Jaider (1994 MPLJ) 300) had held that such amendment cannot be allowed.
Speaking through RC Lahoti, J. (as his Lordship then was the Judge of this Court and later became CJI) held as under:-
"A plaintiff filed a suit in the year 1991 apprehending breach by the defendant seeking merely a declaration of agreement to sell property by defendant in his favour dated 12.03.1985. The time limited for performance was till 7.06.1985. Injunction restraining breach thereof was also claimed but the relief of specific performance of contract was not prayed for. On 29.06.1992 the plaintiff moved an application for amendment so as to incorporate the necessary pleadings and relief of specific performance. The trial Court rejected the application on the view that the proposed amendment not only changed the nature of the suit, but the relief sought to be introduced was barred by time on the date of moving the application and hence, the amendment did not deserve to be allowed. The order was challenged in revision.
Held, that accepting the correctness of dates stated at the Bar by the learned counsel for the petitioner, the relief of specific performance had stood barred by time on the date on which the plaintiff moved the application before the Court. The view taken by the trial Court could not be faulted. The plaintiff had sued merely for declaration and injunction without seeking relief of specific performance. He was for the first time converting his suit into a suit for specific performance and the date on which the amendment had been applied for, the limitation for filing the suit for specific performance had already expired."-7-
8. Mere perusal of plaint in this case would indicate that the suit as originally filed in essentially based on refund of money paid by the plaintiff. Infact, tenure of plaint allegation shows that plaintiff has gone to the extent of averring that defendant had already ceased to be the owner of land because the land stood vested in the State and yet he entered into an agreement to sell the land to plaintiff by defrauding him. It is averred that by playing fraud on the plaintiff and by suppressing these material facts, the defendant obtained money from the plaintiff.
9. In my view, the plaintiff's application for amendment would now introduce another cause of action. It is now equally barred. If the earlier suit was based on averments necessary for claiming refund on the ground that agreement was entered into by playing fraud and was incapable of being enforced being void agreement because, the defendant was neither the owner, nor in a position to transfer the land on the date of agreement, the relief of specific performance on the basis of the same agreement and that too after the expiry of period and on such averments, cannot be allowed. Both relief i.e. the one claimed in the plaint on averments already made in the plaint and now being made by way of amendment on the amended plea are inconsistent with each other. If the plea of refund of consideration was based on an agreement being void and incapable of being enforced due to events pleaded in the plaint, the plea of specific performance has to be on the basis of agreement being valid, legal and capable of being enforced against the defendant. Indeed, a relief of refund of consideration can be claimed as a consequential relief in a case of specific performance provided the agreement is alleged and held to be valid, legal and binding on the parties but due to other reasons known to law, a relief of specific performance can not be granted exercising discretion in plaintiff's favour. It is in that contingency, a relief of refund can be granted in favour of plaintiff. In this case facts are not pleaded in the plaint on these lines but they are entirely based on different cause of action.
10. In view of this,the reliance placed by learned counsel for -8- the petitioner on a decision reported in 2004 (6) SCC 475 is not applicable as it lays down only general principle of law regarding amendment.
11. Accordingly and in view of foregoing discussions, I find no case to interfere in the impugned order. As a result, the petition fails and is dismissed."
16- This Court has upheld the order passed by the trial Court. In the amendment application which was preferred in the year 2006, the same plea of specific performance of contract was raised and this Court has observed that a plea of specific performance of contract in amendment application was introduced for another cause of action. It was also observed that the plea of refund and the plea of specific performance of contract were contradictory pleas, meaning thereby, this Court has affirmed the order passed by the trial Court. 17- Raising a similar plea way back in the year 2006, for the reasons best known to the petitioner he has not preferred any Special Leave Petition against the aforesaid order. The present application contains the similar plea of specific performance of contract and the trial Court has observed that as a similar application was rejected on 01/05/2006 and the order of the trial Court dated 01/05/2006 has been affirmed by this Court on 14/08/2006 and therefore, the trial Court has rejected the second amendment application. 18- This Court has carefully gone through the judgment -9- delivered in the case of Ragu Thilak D. John (Supra). Heavy reliance has been placed in paragraph No.6 of the aforesaid judgment. It has been argued that even if the relief is barred by time, amendment application should have been allowed and on the dispute a issue should be framed.
19- In the present case, the amendment is not only barred by limitation but the fact remains that a similar amendment application has been rejected way back in the year 2006 and in those circumstances the trial Court has rejected the amendment application and therefore, in the considered opinion of this Court the judgment relied upon by the learned Senior counsel is of no help to the petitioner. 20- Another judgment delivered by the apex Court over which the reliance has been placed by the learned counsel for the petitioner in case of Vineet Kumar (Supra). The contention of learned Senior Counsel is that the cause of action was available to the petitioner at the time the suit as filed, meaning thereby, the petitioner could have raised a plea of specific performance of contract at the time the suit was filed, therefore, there was no new cause of action in the amendment application.
21- This Court after careful consideration of the judgment of the apex Court is of the opinion that the amendment application raising a plea of specific performance of
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contract was dismissed in the year 2006 and therefore, the second application raising similar plea is certainly not at all maintainable. The aforesaid judgment relied by the petitioner is also of no help to the petitioner.
22- Reliance has also bee placed on the judgment delivered by the apex Court in the case of Nichhalbhai Vallabhai (Supra) and the contention of the learned counsel is that amendment should be allowed in order to avoid multiplicity of the suits. In the present case, the question of multiplicity of the suit does not arise. The plaintiff has opted for refund of money with open eyes knowing fully well that the land is subject matter of proceedings under the Urban Land (Ceiling and Regulations) Act, 1976 by making a specific plea in the plaint that the land is subject matter of ceiling proceedings. He has prayed for recovery of money.
23- Not only this, he was aware about the fact that in the year 2006 itself, the High Court has decided the matter in favour of the defendants and he opted to file second application in the year 2015 and therefore, as the earlier amendment application in which plea of specific performance was raised, was dismissed by the trial Court and the order of the trial Judge was affirmed by the learned Single Judge, the question of allowing the same does not arise. The aforesaid judgment is again of no help to the petitioner.
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24- Resultantly, in the considered opinion of this Court, the order passed by the trial Court dated 03/09/2015 does not warrant any interference. This Court has also carefully gone through the order dated 30/10/2015 which was an order rejecting the review application of the plaintiff. The learned Judge has rightly rejected the review application as there was no error apparent on the fact of the record.
25- The another important aspect of the case is that an application preferred under Order I Rule 3(B) of the Code of Civil Procedure has also been dismissed. It is only recovery suit and therefore, the question of impleadment of State under the statutory provisions does not arise. Hence, the trial Court was certainly justified in rejecting the application preferred under Order I Rule 3(B) of the CPC also.
26- Resultantly, this Court does not find any reason to interfere with the orders passed by the trial Court and accordingly, the admission is declined. The civil suit in question is of the year 2001 and therefore, the trial Court is directed to decide the same as expeditiously as possible preferably within a period of six months.
C. C. as per rules.
(S. C. SHARMA) JUDGE Tej