Punjab-Haryana High Court
Amrit Lal Vij vs Jalandhar Improvement Trust & Ors on 30 September, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
VINOD KUMAR
2014.10.07 15:04
I attest to the accuracy and
authenticity of this document
Chandigarh
CR No.5528 of 2012 (O&M) [1]
*****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.5528 of 2012 (O&M)
Date of decision:30.09.2014
Amrit Lal Vij ...Petitioner
Versus
Jalandhar Improvement Trust, Jalandhar and others ...Respondents
CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. Kanwaljit Singh, Senior Advocate, with
Mr. Ajaivir Singh, Advocate, for the petitioner.
Mr. O.P.Sharma, Advocate,
for respondent no.1.
Mr. Harit Sharma, Advocate,
for respondents no.3 to 5.
*****
RAKESH KUMAR JAIN, J.
This petition is filed against the order dated 06.09.2012 dismissing the application filed by the plaintiff-petitioner under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (here-in-after referred to as the "CPC") to insert the ingredients of Section 16(c) of the Specific Relief Act, 1963 (here-in-after referred to as the "Act") in the plaint.
The plaintiff-petitioner filed a suit for possession by way of specific performance of an agreement to sell dated 09.10.1989. It is alleged that defendant no.1-Jalandhar Improvement Trust agreed to sell plot no.655, measuring 1 kanal 1 marla (153 sq. ft.), situated in 110 Acre Scheme known VINOD KUMAR 2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.5528 of 2012 (O&M) [2] ***** as Guru Teg Bahadur Nagar, Jalandhar, vide allotment letter no.JIT/296 dated 18.04.1984 in the name of Jasbir Singh Chadha-defendant no.2. It is further alleged that Jasbir Singh Chadha paid more than a sum of `61,562/- towards the price of the said plot and through his General Power of Attorney, namely, Manmohan Singh, entered into an agreement to sell with the plaintiff on 09.10.1989 and received a sum of `50,000/- on 02.06.1989. Thereafter, on request of defendant no.2, the plaintiff paid a sum of `22,000/- on 09.06.1989, `21,635/- on 25.07.1989 and `1,10,000/- on 25.07.1989, thus made a total payment of `2,03,635/- upto 25.07.1989 to Manmohan Singh, General Power of Attorney of Jasbir Singh Chadha. The balance amount payable at the instance of the plaintiff was `35,495/-. As per the agreement, all the dues to the Jalandhar Improvement Trust were to be cleared either by the Jasbir Singh Chadha or his attorney and the Trust was to transfer the plot in favour of the plaintiff. The entire exercise was to be done before 25.10.1989.
The plaintiff applied to defendant no.1-Trust for transfer of the plot and ultimately, served a legal notice on 06.04.1992. Defendant no.1, vide its letter dated 21.05.1998, informed the plaintiff that he and Surinder Mahey may get the matter decided through the Civil Court. Thereafter, defendant no.3 filed a suit for specific performance against defendant no.1 and obtained the decree of specific performance on 25.07.2000 on the basis of alleged forged and fabricated agreement.
The plaintiff had thus filed the present suit while impleading Surinder Mahey, defendant no.3, as a party and prayed for performance of VINOD KUMAR 2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.5528 of 2012 (O&M) [3] ***** the agreement to sell dated 09.10.1989, on the payment of balance sale consideration, declaring the judgment and decree dated 25.07.2000 in favour of defendant no.3 passed in Civil Suit No.153 dated 1998 filed against the Jalandhar Improvement Trust and others to be illegal, null and void. In the said suit, defendant no.2-Jasbir Singh Chadha was proceeded against ex parte. After the defendants filed their respective written statements, the trial Court framed the following issues:-
"1. Whether the agreement dated 09.10.1989 in favour of plaintiff is legal and valid?OPP.
2. Whether the plaintiff is ready and willing to perform his part of the contract?OPP.
3. Whether the agreement can be legally enforced in view of the circumstances of the case?OPP.
4. Whether the judgment and decree dated 25.07.2000 is illegal, null and void being the result of fraud and mis-representation?OPP.
5. Whether the plaintiff is entitled to seek the relief of permanent injunction regarding alienation and construction?OPP.
6. Whether the suit is within limitation?OPP.
7. Whether the plaintiff has no locus standi to file the present suit?OPD.
8. Whether plaintiff is estopped by his own act and conduct from filing the present suit?OPD. VINOD KUMAR 2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.5528 of 2012 (O&M) [4]
*****
9. Whether defendant No.3 had already raised construction over the suit property? If so its effect?OPD-3.
10. Whether the suit is not maintainable in the present form?OPD.
11. Whether the plaintiff has no cause of action to file the present suit?OPD.
12. Whether the agreement dated 24.08.1984 is legal and valid?OPD.
13. Whether the agreement dated 9.9.88 is legal and valid?OPD.
14. Relief."
It has been categorically observed by the trial Court that "it is worth making mention that the plaintiff has sought the relief of specific performance but the ingredients qua readiness and willingness have neither been pleaded nor the same have been proved as per the Evidence Act". Ultimately, the suit was dismissed by the trial Court, inter alia, being barred by limitation as well vide its judgment and decree dated 11.08.2009.
The plaintiff-petitioner filed statutory appeal against the judgment and decree dated 11.08.2009 and during its pendency, filed an application under Order 6 Rule 17 of the CPC in order to insert para 13A to make an averment with regard to readiness and willingness to perform his part of the contract. The said paragraph 13A with regard to the aforesaid amendment is as under:-
VINOD KUMAR2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.5528 of 2012 (O&M) [5]
***** "13A. That the plaintiff has always been ready and willing to perform his part of the contract and is even now ready and willing to perform his part of contract. Plaintiff has always been and is even now ready to pay balance amount payable to defendant no.1 on account of price of plot in dispute and has also been ready and willing and is even now ready and willing to pay expenses for execution and registration of sale deed. A sum of Rs.2,03,635/- had been paid upto 25.7.1989 to Sh. Manmohan Singh, general attorney of Sh. Jasbir Singh Chadha and the balance amount of Rs.35,495/- remained payable, which the plaintiff had been repeatedly requesting defendant no.1 to receive. The amounts have always been lying ready with the plaintiff and plaintiff is even now possessed of sufficient means to pay the requisite amounts as plaintiff is a man of means."
The application was hotly contested by the defendants and the Appellate Court, vide its impugned order dated 06.09.2012, dismissed it observing that not only the suit filed in the year 2001 was decided in the year 2009, after the expiry of 8 years, but also the application for amendment has been filed on 18.08.2012, i.e. 4 years after the filing of the appeal in which the plaintiff had filed an application when the case was fixed for argument for leading additional evidence. It was held that when VINOD KUMAR 2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.5528 of 2012 (O&M) [6] ***** the case was fixed for final hearing, one more application was filed for filing of original power of attorney. It was also observed that the amendment for inserting ingredients of Section 16(c) of the Act cannot be said to be clerical or typographical error nor it is said to be clarificatory in nature because it is a clear lack of due diligence on the part of the plaintiff. It was also observed that the trial Court has dismissed the suit, inter alia, on the ground that the plaintiff has failed to prove the Ex.P3 and it was barred by limitation.
Learned counsel for the petitioner has argued that by inserting the averment by way of amendment that the plaintiff is ready and willing to perform his part of the contract would not change the cause of action and the said amendment can be allowed. In this regard, he has relied upon a judgment of the Supreme Court in the case of Lakhi Ram v. Trikha Ram, 1998(2) R.C.R. (Civil) 86.
On the other hand, learned counsel for the respondents has submitted that after the amendment in the CPC by Act 22 of 2002 by which proviso has been added to Order 6 Rule 17, it was incumbent upon the plaintiff to plead and prove that in spite of due diligence, he could not have raised the matter before the commencement of the trial which is sought to be added in the plaint by way of amendment. In this regard, he has relied upon a judgment of this Court in the case of Khushi Ram v. Murli Manohar Thatheran Panchayati Mandir and Dharamsala Society, 2010(1) R.C.R. (Civil) 967. He has also relied upon the judgment of the Supreme Court in the case of North Eastern Railway Administration, Gorakhpur v. VINOD KUMAR 2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.5528 of 2012 (O&M) [7]
***** Bhagwan Das (D) by LRs., 2008(3) R.C.R. (Civil) 165 to contend that the amendment can be allowed which satisfies two conditions: (a) of 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, but if the amendment causes an injury to the other party, which could not be compensated in costs, it cannot be allowed.
I have heard learned counsel for the parties and examined the available record with their able assistance.
Order 6 Rule 17 of the CPC, before amendment by Act 22 of 2002, was as under:-
"17. 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."
However, after the amendment, proviso was added to Order 6 Rule 17 of the CPC to the effect that "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".
It is not in dispute that the agreement to sell is of 09.10.1989 and the suit was filed by the plaintiff in the year 2001. It is also not in dispute that no averment regarding readiness and willingness to perform his VINOD KUMAR 2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.5528 of 2012 (O&M) [8] ***** part of the contract was pleaded by the plaintiff in the suit, whereas Section 16 of the Act reads as under:-
"16. Personal bars to relief.-- Specific performance of a contract cannot be enforced in favour of a person--
(a) who would not be entitled to recover
compensation for its breach; or
(b) who has become incapable of performing, or
violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or willfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or
(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation.-- For the purpose of clause (c), --
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
(ii) the plaintiff must aver performance of, or VINOD KUMAR 2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.5528 of 2012 (O&M) [9] ***** readiness and willingness to perform, the contract according to its true construction."
The trial Court, while dismissing the suit of the plaintiff, has recorded a specific finding that the plaintiff has neither averred nor proved by way of evidence that he was ready and willing to perform his part of the contract.
Now reverting back to the judgment relied upon by counsel for the petitioner in Lakhi Ram's case (supra), the suit for specific performance was filed against the original vendor and also the subsequent purchasers. The original vendor remained ex parte, the suit was contested by the subsequent purchasers and ultimately, it was decreed. The subsequent purchasers then filed the appeal in which it was contended that the suit was barred by Section 16(c) of the Act as the plaintiff did not aver in the plaint that he was ready and willing to perform his part of the contract. When this contention was raised at the stage of argument, the plaintiff moved an application for amending the plaint for seeking introduction of the averment regarding readiness and willingness to perform his part of the contract. The said amendment was granted by the Appellate Court and as a result thereof, the decree of the trial Court was set aside and the case was remanded back for framing appropriate issues in the light of the amended plaint subject to payment of costs. In appeal, the High Court took the view that such amendment could not have been granted as it would displace the defence of the defendants and consequently, the order of the Appellate Court allowing the amendment was set aside. The learned Single VINOD KUMAR 2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.5528 of 2012 (O&M) [ 10 ] ***** Judge of the High Court followed an earlier decision of the Division Bench of the High Court and held that once such proposed amendment was refused, the suit would not survive and, therefore, the appeal was allowed and the order of the Appellate Court was set aside and the plaintiff's suit was dismissed. The said order was subject matter of appeal before the Supreme Court. Two points were raised before the Supreme Court in the said case that the suit for specific performance was centered around inaction on the part of the vendor in complying with the agreement to sell the property and if averment under Section 16(c) of the Act was not originally inserted due to oversight or otherwise by the plaintiff, he can always be permitted to amend the plaint. In support of this contention, a judgment of the Supreme Court was relied upon in the case of Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar, 1990(1) SCC 166. The second issue was raised that the subsequent purchasers cannot raise the plea that the plaintiff was not ready and willing to perform his part of the contract and relied upon a judgment of the Supreme Court in the case of Jugraj Singh and another v. Labh Singh and others, 1995(2) SCC 31.
In the said case, the first question was decided by observing that the amendment inserting the relevant averments under Section 16(c) of the Act does not change the cause of action and would be legally permissible exercise as laid down by earlier judgment of the Supreme Court in Gajanan Jaikishan Joshi's case (supra), but insofar as the second question as to whether the subsequent purchasers can raise the plea that the plaintiff was not ready and willing to perform his part of the contract is VINOD KUMAR 2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.5528 of 2012 (O&M) [ 11 ] ***** concerned, it was held that the said proposition requires a re-look.
On the other hand, in Khushi Ram's case (supra), relied upon by learned counsel for the respondents, it has been held that generally no amendment can be allowed after the commencement of the trial unless the Court comes to the conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial and if the party fails to establish due diligence, the amendment application cannot be allowed if it is so moved at the fag end of the trial.
In North Eastern Railway Administration, Gorakhpur's case (supra), the Supreme Court has held that in view of the judgment in the case of Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, AIR 1957 SC 363, the amendment can be allowed which satisfies two conditions: (a) of 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. It is further held that the amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.
In the latest judgment of the Supreme Court in the case of Coromandel Indag Products (P) Ltd. v. Garuda Chit and Trading Co. P. Ltd. and another, 2011(4) R.C.R. (Civil) 677, it has been held that "it is incumbent on the party, who wants to enforce the specific performance of a contract, to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract. Explanation VINOD KUMAR 2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.5528 of 2012 (O&M) [ 12 ] ***** appended to this sub-section (c) makes ti clear that if a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court. However, the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction".
Once Section 16 of the Act specifically provides that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which were to be performed by him, other than the terms performance of which has been prevented or waived by the defendant and the plaintiff fails to make such an averment and a categoric finding has been recorded by the trial Court, the said lacuna cannot be filled up by the plaintiff by making an application under Order 6 Rule 17 of the CPC before the Appellate Court after fighting the litigation for 12 years, i.e. 8 years before the trial Court and 4 years before the Appellate Court. In view of the proviso to Order 6 Rule 17 of the CPC as per which no application for amendment is to be allowed after the trial commences until and unless the plaintiff satisfies the Court that despite due diligence, he could not raise the matter before the commencement of the trial.
In the present case, however, it has been observed by the trial Court that the plaintiff had engaged a senior counsel in the trial Court who was not expected of not taking the basic plea of readiness and willingness of VINOD KUMAR 2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.5528 of 2012 (O&M) [ 13 ] ***** performance of his part of the contract, as provided under Section 16(c) of the Act, while filing the suit for specific performance and would not take this plea for 8 years when the suit continued and, ultimately, decided against the plaintiff with a specific observation that the plaintiff has failed to make an averment in this regard and further for 4 years, the plaintiff would not take this plea when the appeal was pending and would take this plea just when the case was fixed for arguments in appeal.
Thus, in these circumstances, the judgment relied upon by learned counsel for the petitioner in Lakhi Ram's case (supra) is of no help to him as the amendment, if allowed now, would cause injustice to the defendants as the suit of the plaintiff could be dismissed wholly on this ground also that he has failed to aver and prove readiness and willingness of performance of his part of the contract.
In view of the aforesaid discussion, I do not find any merit in the present revision petition and hence, the same is hereby dismissed.
September 30, 2014 (RAKESH KUMAR JAIN) vinod* JUDGE