Punjab-Haryana High Court
Kuljinder Singh vs Balwinder Singh on 16 December, 2014
CR No.3914 of 2013 1
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA
AT CHANDIGARH
CR No.3914 of 2013
Date of decision: December 16, 2014.
Kuljinder Singh ... Petitioner
v.
Balwinder Singh ... Respondent
CORAM: HON'BLE MR. JUSTICE DR. BHARAT BHUSHAN PARSOON
Present: Shri Piyush Kant Jain, Advocate, for the petitioner.
Shri B.S. Walia, Advocate for the respondent.
Dr. Bharat Bhushan Parsoon, J. (Oral):
This revision petition by the appellant-plaintiff, petitioner herein, is directed against order dated 1.5.2013 vide which his application before the first appellate court in appeal against judgment and decree dated 24.7.2012 passed by the court of Additional Civil Judge (Senior Division), Jagraon, dismissing the suit of the appellant-plaintiff for introducing additional facts in the plaint, was dismissed. It is claimed that by way of amendment in the plaint, neither cause of action is being changed nor matter in issue, would find any change. It is urged that delay in filing the application ipso facto is not fatal particularly when the matter materially in issue is not going to be changed.
Counsel for the petitioner has sought support from Abdul Rehman & another v. Mohd. Ruldu & Others, 201294) CCC 584 (SC), Rajwant Kaur & Others v. Davinder Singh & Others, 2011(2) CCC 357 (P&H), Arya Mitter & another v. Harbans & another, 2010 (Suppl.) CCC 862 (P&H) and Kailashpati Devi & Another v. Jamuna Prasad Jaiswal & Others, 2012(4) CCC 168 (Allahabad), urging that amendment of pleadings can be allowed at any stage of the proceedings in the interest of justice and VINOD KUMAR KADYAN 2014.12.19 14:03 I attest to the accuracy and integrity of this document Chandigarh CR No.3914 of 2013 2 liberal approach is to be adopted. It is further urged that amendment sought in the plaint is necessary. Support has been sought from Rajesh Kumar Aggarwal and otehrs v. K.K. Modi and others, (2006)4 SCC 385.
Counsel for the respondent, on the other hand, has urged that amendment sought for at the appellate stage, deprives the defendant of the fruits of adjudication already made in his favour by the trial court. It is contended that the amendment sought for is not only malafide but also is dishonest.
On hearing of Counsel for the parties and perusal of the paper book, it is revealed that the petitioner, applicant-appellant, had filed a suit on 20.9.2006 for specific performance of the agreement to sell dated 20.7.2005 of the land. The said suit was decided on 24.7.2012. Among other aspects, the trial court came to a firm finding that age of the vendor- defendant viz., Surinder Kaur, a party to the agreement to sell, was below 18 years and thus, she was minor and the agreement to sell was not a valid agreement enforceable at law. In these circumstances, instead of granting the decree of specific performance of the agreement, decree for recovery of Rs.2.50 lacs, i.e., the amount of earnest money, with costs and interest thereon, was passed.
Against this judgment and decree, the plaintiff had filed an appeal, during pendency of which, present application for amendment of the plaint was moved to completely delete para No.4 of the plaint to be substituted with a new paragraph with new pleadings, wherein a totally new plea was sought to be introduced. It was sought to aver that agreement dated 20.7.2005 was over when endorsements dated 20.8.2005 and 20.7.2006 were made and date of performance of the agreement was settled as 18.8.2006. Extensive co-relative changes in other parts of the plaint were also sought to be introduced.
VINOD KUMAR KADYAN 2014.12.19 14:03 I attest to the accuracy and integrity of this document Chandigarh CR No.3914 of 2013 3This application was strongly resisted by the respondent- defendants claiming that the agreement to sell is of 20.7.2005. The suit was filed on 20.9.2006 and was decided on 24.7.2012. The appeal was preferred on 26.8.2012. It is urged that the stage at which the application has been moved also shows that it is malafide in addition to being dishonest. It is claimed that the agreement undoubtedly is of 20.7.2005 when one of the vendors-defendants, respondent herein, was a minor and the agreement thus is void-ab-initio.
In Rameshkumar Agarwal v. Rajmala Exports Pvt. Ltd. & Others, 2012(2) Apex Court Judgments 071 (SC) though it was held that ordinarily the court should allow amendment in the pleadings but has further held that such amendment should be bonafide, legitimate, honest and should never permit malafide and dishonest amendments. In the present case, in the entire pleadings, even now sought to be introduced by way of amendment, it is not mentioned even in whispers that on the date of execution of the agreement dated 20.7.2005, one of the non-applicant, defendant-respondent was a minor and thus had no capacity to enter into a contract and the agreement was void-ab-initio.
Endorsements made on the said agreement later on and extension of date of sale deed do not validate the agreement entered into between the parties even if later the minor defendant had become major. The application for amendment of the plaint reveals that very deftly, the entire matter of minority of the non-applicant, respondent-defendant herein, was intentionally omitted clearly to mislead the court concerned.
Counsel for the petitioner, applicant-appellant, has not been able to convince this Court as to how the original agreement of 20.7.2005 could be said to have been merged and re-settled in the contract of 20.7.2005 and how validity and voidness of the agreement gets cured.
VINOD KUMAR KADYAN 2014.12.19 14:03 I attest to the accuracy and integrity of this document Chandigarh CR No.3914 of 2013 4Particularly when incompetency to contract due to minority, renders the agreement void-ab-initio.
In view of the well written order and amendment sought for being completely dishonest and malafide, it was rightly rejected by the first appellate court. There is no merit in the petition.
Dismissed.
As the appeal has already been delayed in its adjudication, now it be decided within one month from the date of receipt of a certified copy of this order.
The parties to appear before the court concerned on 13.1.2015.
[Dr. Bharat Bhushan Parsoon] December 16, 2014. Judge kadyan
1. Whether Reporters of local papers may be allowed to see the judgment ?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
VINOD KUMAR KADYAN 2014.12.19 14:03 I attest to the accuracy and integrity of this document Chandigarh