Punjab-Haryana High Court
Raj Kumar vs Surinder Pal And Another on 14 February, 2012
Author: Ritu Bahri
Bench: Ritu Bahri
CR No.4261 of 2011 1
IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT
CHANDIGARH
CR No.4261 of 2011
Date of decision:14.2.2012
Raj Kumar
...Petitioner
Versus
Surinder Pal and another
...Respondents
CORAM: HON'BLE Ms. JUSTICE RITU BAHRI
Present: Mr.Anil Kumar Lamdharia, Advocate,
for the petitioner.
Mr.Chanchal K. Singh, Advocate,
for the respondents.
RITU BAHRI, J.
The present petition under Article 227 of the Constitution of India is for quashing of the impugned order dated 24.5.2011 (Annexure P-1) passed by the Civil Judge (Junior Division), Fatehgarh Sahib, whereby an application of the petitioner-defendant No.1 under Order 6 rule 17 of the Code of Civil Procedure has been dismissed.
The plaintiff-respondent Surinder Pal had filed a suit for specific performance on the basis of agreement to sell dated 3.11.2003 executed by the defendants Raj Kumar and Sanjeev Kumar for a total sale consideration of Rs.1 lakh. Out of Rs.1 lac, Rs.51,000/- was paid as earnest money while Rs.49,000/- was balance sale price. The date of the registration of sale-deed was 31.5.2004, which was extended to 25.6.2004. The plaintiff went on the appointed date to the office of the Sub-Registrar, Fatehgarh Sahib in terms and conditions of the agreement to sell dated 3.11.2003 along with the balance sale price. When the defendants did not turn up on the appointed date, then the plaintiff got attested an affidavit for marking his presence in the office of Sub-Registrar. Thereafter a registered legal notice dated 5.7.2004 was sent by the plaintiff to the defendants to CR No.4261 of 2011 2 execute and register the sale deed dated 3.11.2003. After few days, the plaintiff tendered the balance sale price to the defendants but they refused to execute the sale-deed. Accordingly, a suit for specific performance was filed on 26.10.2004. The defendants appeared and filed the written statement dated 6.12.2004 (Annexure P-3). The execution of the sale-deed dated 3.11.2003 was denied. The stand of the defendant was that the defendants had borrowed a sum of Rs.40,000/- from the plaintiff on 3.11.1999 on the interest @ 6% per annum and also took the stand that the plaintiff got the signatures of defendants on the blank papers each years as the security of the borrowing amount. On 31.5.2004, the defendants returned Rs.20,000/- to the plaintiff out of the principal amount of Rs.40,000/-. The plaintiff with malafide intention in collusion with the witness of alleged agreement and scribe of agreement has executed fabricated the writing regarding extension of time of registration of the sale- deed in the absence of defendants just to grab Rs.20,000/- and interest. The dispute arose between the parties arose when the plaintiff asked the defendants to pay the interest on the amount of Rs.40,000/- but the defendants refused to pay the same. The petitioner had received the interest upon Rs.40,000/- till 3.11.2004. The defendants never executed any agreement to sell dated 3.11.2003.
Subsequently, an application was filed for amendment of the written statement under Order VI Rule 17 (Annexure P-4). The defendants sought to amend the date in paragraph 3 of the written statement as 3.11.1999 to 3.11.2003 and further sought to add facts in continuation of para 3 of the written statement by stating that the plaintiff is a money lender and lends money to needy persons on interest. The defendant No.1 used to obtain different amounts on different dates from the plaintiff and in lieu of the said borrowed amount, the plaintiff got executed an agreement to sell CR No.4261 of 2011 3 dated 18.11.2002. The borrowed amount had been returned by defendant No.1. The plaintiff retained the original agreement to sell dated 18.11.2002. This agreement to sell is being used against the defendants for oblique purposes. The witnesses to the said agreement to sell are Shri Maam Chand and Sh.Guljar Singh, who are the henchmen of the plaintiff.
Learned counsel for the petitioner has placed on record the statement of Surinder Pal and his cross-examination (Annexure P-5), where he has admitted his signatures on the agreement to sell Mark `A'. The agreement to sell Mark `A' is Annexure P-3/A. The amendment has been disallowed and the application has been rejected on the ground that it will make out a new case as no plea of the said agreement to sell has been taken in the original written statement. In the written statement filed, the agreement to sell dated 3.11.2003 has been denied. The fact that defendant had borrowed Rs.40,000/- at 6% interest has been admitted. The plaintiff is a money lender and defendants were in the habit of taking loan after giving blank papers as security. The specific case in the written statement is that out of Rs.40,000/-, they had returned Rs.20,000/- till 3.11.2004. The dispute arose when the defendants, in pursuance to the blank papers, created an agreement to sell dated 3.11.2003 and filed a suit for specific performance.
Heard learned counsel for the parties.
After going through the entire case, one thing is clear that the defendants had admitted that they used to borrow money from the plaintiff and in pursuance to that, they had given some blank papers. The plaintiff in cross-examination (Annexure P-5) has admitted his signatures on Mark `A', which is a sale-deed dated 18.11.2002 (Annexure P-3/A). Once the plaintiff has admitted his signatures on the agreement to sell dated 18.11.2002, the amendment sought by the defendants in the written CR No.4261 of 2011 4 statement should have been allowed.
The law on the subject is very liberal as set out by Hon'ble the Supreme Court in Usha Balashaheb Swami & others Vs. Kiran Appaso Swami and others, 2007(2) RCR (Civil) 830, wherein it has been observed as under:-
20. It is equally well-settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.
21. Such being the settled law, we must hold that in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case (B. K. Narayana Pillai v. Parameswaran Pillai, 2000(1) RCR (Rent) 10: 2000 (1) RCR (Civil) 511: 2000 (1) SCC 712 and Baldev Singh v. Manohar Singh 2006 (6) SCC
498.
In view of the above discussion and the law laid down in Usha Balashaheb Swami's case (supra), the present petition is allowed. The impugned order dated 24.5.2011 is set aside. The application for amendment of the written statement thus stands allowed. The trial Court is directed to dispose of the suit at the earliest possible without granting any unnecessary adjournment to either of the parties.
14.2.2012 (RITU BAHRI) mks JUDGE