Punjab-Haryana High Court
Shahab-Ud-Din vs Radhey Shyam Bansal And Ors. on 29 October, 1999
Equivalent citations: (2000)125PLR85
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. Shahab-Ud-din son of Bashir-Ud-Din, who was defendant No.8 in the trial Court and who is a subsequent vendee, has filed the present S.A.O. and it has been directed against the judgment dated 11.11.1987 passed by the Additional District Judge, Faridabad, who after allowing the application Under Order 6 Rule 17, CPC, of the plaintiffs Radhey Shyam Bansal and Jagan Nath Bansal, allowed the appeal and set aside the judgment and decree of the trial Court and remanded the case with the following directions.
"..... so, the judgment and decree passed by the learned lower Court shall have to be set aside and it is done accordingly. On filing amended plaint a copy shall be given to respondent-defendants. They shall have to be asked to file written statement to amended plaint, some new averments shall come into light which would give birth to new issues and leading of fresh evidence and thereafter re-decision of the whole of the matter in controversy as a fresh. In these circumstances, it has become essential for the undersigned to remand the case to the learned lower Court which is, Court of learned Senior Sub Judge, Faridabad, with the direction to accept the amended plaint, afford an opportunity to respondent-defendant to file written statement, construct new issues, if arise out of the amendment of pleadings, afford an opportunity to lead evidence to both the parties and after hearing both the parties again to write a fresh judgment and dispose of the controversy between the parties."
2. Some facts of the case can be noticed in the following manner:-
3. Radhey Shyam and Jagan Math Bansal were the plaintiffs before the trial Court and they filed a suit for specific performance and agreement for sale and for permanent injunction against the defendants, including the present appellant Shahab-Ud-Din. It was alleged by the plaintiffs that they had entered into an agreement of purchase. The plaintiffs alleged that the land measuring 12 Kanal 7 marlas situated on 13/1 Mathura Road, Faridabad, forming part of killa No.50/6 and 51/10 originally belonged to Kailash Chander and Ramesh Chander jointly and they owned the property in equal shares as shown in the plan attached with the plaint by words ADEH. Kailash and Ramesh sold 1/2 share of the property to Radhey Shyam Bansal, plaintiff, through a registered sale deed dated 14.8.1968. This property is marked CDE and is shown in green colour in the plan attached. Thereafter, a partition in respect of the half property took place between Kailash and Ramesh Chander. Half of the remaining property measuring 3 kanals 1-3/4 marlas fell in the share of Kailash and half measuring 3 kanals 1-3/4 marlas fell in the share of Kailash and half measuring 3 kanals 1-3/4 fell in the share of Ramesh. The portion which fell to the share of Kailash is marked ABGH while the portion marked CDEF shown in green colour was transferred to Radhey Shyam Bansal. Kailash son of Mela sold the property measuring 3 kanals 13/4 forming part of killa No.50/6 and 51/10 marked ABGH, shown in blue colour, to Jagan Nath vide sale deed dated 30.12.1969. Jagan Nath is real brother of Radhey Shyam and Raj Kumar is real first cousin of Jagan Nath and Radhey Shyam. The, remaining portion of the property 1-3/1, Mathura Road, forming part of killa No. 50/6 and 51/10 measuring 3 kanals 13/4 fell to the share of Ramesh Chander son of Mela Ram which is a disputed one. This property has been shown with the words BCFG in red colour in the plan.
4. The case of the prosecution further proceeds that the defendants No. 1 to 7 through their attorney K.C. Chandiok entered into an agreement to sell with the plaintiffs for a consideration of Rs.8,000/- and received a sum of Rs.5,000/- towards part payment of the price and the balance amount of Rs.3,000/- was to be paid at the time of registration to defendant No. 1 to 7 in the presence of the Sub-Registrar. Ramesh Chander died on 2.12.1970, The property was inherited by defendants No. 1 to 7 exclusively. Defendants No. 1 to 6 had executed a Power of Attorney in favour of defendant No.7 K.C. Chandiok to do the various acts on their behalf including the transfer of joint movable and immovable properties including the property in question, which they inherited from Ramesh Chander. Defendant No.7 at the time of the agreement of sale, assured the plaintiffs that he was attorney of defendants No. 1 to 6 and held Power of Attorney on their behalf. So much so, he handed over two attested copies of the Power of Attorney to the plaintiffs at the time of agreement of sale. On the death of Ramesh Chander, defendants No. 1 to 7 were in need of succession certificate, it was assured by defendant No.7 that as soon as they got the succession certificate, the sale shall be registered. The plaintiffs had been waiting the reply of defendants No. 1 to 7 and have been approaching them for getting the sale deed registered but every time defendant No.7 had been assuring them that as soon as defendant Nos.
1 to7 got the succession certificate, they shall perform their part of contract. Ultimately, the plaintiffs learnt that on 7.4.1986, the defendants No. 1 to 7 had obtained the succession certificate on 7.7.1978. Plaintiffs contacted defendant No.7 to get the sale deed registered on receipt of Rs.3,000/-. he asked the plaintiffs to purchase stamp papers. They did so on the basis of authority of defendant No.7, who ultimately refused to get the sale deed registered. Defendant no.8 along with 3/4 persons came to the plaintiffs in the property in dispute and threatened them to dispossess and their tenants. On the intervention of neighbours, defendant No.8 and his associates who were men of desperate character were made to leave the spot. Even thereafter the plaintiffs approached the defendants No. 1 to 7 to perform their part of the contract but they refused to do so. Hence the suit.
5. Suit was contested in the trial Court only by defendants No. 2, 4, 7 and 8 and they filed a written statement taking various pleas such as the suit was barred by time; that the plaint is absolutely false, mala fide and fictitious. On merits, it was submitted that defendant no.7 was not empowered to enter into an agreement of the property in question with the plaintiffs on behalf of the defendants. None of the defendants ever received the alleged amount of Rs.5,000/- from the plaintiff towards the part price. No receipt of agreement of sale was every executed by defendants No. 1 to 7, heirs of Ramesh Chander to sell the property in dispute nor defendant No.7 was competent to execute any such agreement. Defendants No. 1, 2 and 6 never executed any power of attorney in favour of defendant No.7 to alienate the property in dispute.
6. Defendant No.8 filed a separate written statement and he contended that no agreement as to the sale of the property in dispute was executed on 1.5.1977. It is a forged document and he is a bona fide purchaser of the disputed property vide sale deed dated 4.9.1979 for valuable consideration and the suit is time barred.
7. The plaintiffs filed a rejoinder to the written statement of the contesting defendants in which they reiterated the allegations made in the plaint by denying those of the written statement.
8. It may also be mentioned here that defendant No.8 filed a separate suit against Radhey Shyam and Jagan Nath, plaintiffs, and s for injunction. Both the suits were consolidated by the trial Court. Several issues were framed in the suit for specific performance. Ultimately, the suit for specific performance filed by Radhey Shyam Bansal and Jagan Nath was dismissed, but a finding was given by the trial Court that the defendant No.8 is a bona fide purchaser. The suit of Shahab-Ud-Din was also dismissed. Both these suits were disposed of vide judgment and decree dated 20.11.1996 passed by the Senior Sub Judge, Faridabad. In the suit for specific performance, the following issues were framed:-
"1. Whether the defendant No.7 on his behalf and on behalf of defendants No.1 to 6 as their special attorney executed an agreement to sell dated 15.5.1977 in favour of plaintiffs in respect of the suit property? OPP
2. Whether plaintiff paid a sum of Rs.5,000/- on 3.10.1976 to defendant No.7 as part of conveyance price? OPP
3. Whether plaintiffs have already been ready and willing to perform their part of contract? OPP
4. Whether the suit is barred by limitation? OPD
5. Whether defendant No.8 is bona fide purchaser for consideration, if so to what effect? OPD
6. Whether the alleged agreement of sale dated 15.5.1977 is sham transaction not binding upon the defendant No.8? OPD.
6A. Whether the suit is not maintainable as stated by defendants No.2, 4 and 7 in paras No.2 and 3 of the preliminary objections of their written statement? OPD
7. Relief."
9. It may also be mentioned here that the additional issue N0.6A was framed on 31.5.1985.
10. I need not incorporate the issues which were formulated in the suit of Shahab-Ud-Din against Radhey Shyam Bansal and others as those issues are not relevant for the purpose of the present decision.
11. On the conclusion of the trial, the learned trial Court held that defendant No.7 had executed an agreement of sale in favour of the plaintiffs and he also received a sum of Rs.5,000/- by way of earnest money. Issue No.3 was not decided in favour of the plaintiffs and the finding of the trial Court was that the plaintiffs were not ready and willing to perform their part of the contract. Issue No.4 was decided against the defendants and in favour of the plaintiffs and it was held that that? suit is within limitation. Issues No.5 and 8 were decided in favour of defendant No.8, i.e. the present appellant. While disposing of issue N0.6-A, it was observed by the trial Court that the plaintiffs are not proved to be in possession of the suit land. They at mot the are in constructive possession. Finally, the suit for performance was dismissed.
12. Aggrieved by the judgment and decree of the trial Court dated 20.11.1986, the plaintiffs filed an appeal before the court of Additional District judge, Faridabad. Similarly, Shahab-Ud-Din also filed in appeal. During the pendency of the appeal, the plaintiffs filed an application Under Order 6 Rule 17, CPC and they prayed to the first appellate court to add para 16-A in the plaint, which runs as under :-
"4. That in case the plaintiffs are not held to be entitled to claim specific performance against all the vendors namely defendants Nos. 1 to 7, they submit that they may be granted decree of specific performance in respect of the share of defendants Nos.
1 to 3 and 5 and 7 namely for 5/7 share of the land in suit and plaintiffs are ready and willing to pay the consideration for whole of the contract without any abatement and relinquishing all claim to the performance of the remaining part of contract and all right to compensation either for the deficiency or loss or damages sustained by them through the fault of the defendants."
13. This necessity arose because the trial Court held that defendants No.4 and 6; namely Dayawanti and Rakesh Chander had not given any authority to defendant No.7 K. C. Chandiok to sell their share in the property.
14. Notice Of the application Under Order 6 Rule 17, CPC was given to the contesting respondents. The present appellant opposed the application on the plea that the same was not maintainable; that the plaintiffs wanted to fill up lacunae, which is not permissible. The proposed amendment will change the entire nature and character of the suit. The defendant had acquired valuable right. The market value of the land in dispute had arisen tremendously. So, out of greed the appellants want to amend the plaint. It was also contended by the defendant No. 8 that defendants No. 1 to 6 never executed any Power of Attorney in favour of defendant No.? regarding the disputed land to enter into an agreement with the appellants to sell it for sum of Rs.8,000/- in their favour. The plaintiffs could not plead the alleged options Under Section 12 of the Specific Relief Act, as alleged The plaintiffs are not entitled to take any such plea at that stage. No contest was given to the application Under Order 6 Rule 17, CPC, by the defendants No. 1 to7 before the appellate Court.
15. The learned Court Of Additional District Judge, Faridabad, allowed the application Under Order 6 Rule 17 CPC and in para 26 held that it has become obvious that amendment in the pleadings of the plaint can be permitted at any stage of the case. Consequent upon me amendment of plaint, the first appellate Court set aside the judgment decree of the trial Court and gave directions the trial Court as indicated above.
16. Aggrieved by the judgment dated 11.1.1987, the present appeal which I am disposing of with the assistance of Mr. V. K. Jain, Senior Advocate (Mr. R.. K. Sharma, Advocate with him) and Mr. S.D. Bansal, Advocate, on behalf of the plaintiff-vendees and with their assistance have gone through the record of this case.
17. The impugned order can be read into two parts; firstly, when the first appellate Court had set aside the judgment and decree of the trial Court and remanded the case and; secondly, when the first appellate Court allowed the application Under Order 6 Rule 17, CPC, filed by the plaintiffs at the appellate stage. I have to examine the legality of this order.
18. So far as the order of remand is (concerned, 1 am not in agreement with the view taken up by the first appellate court. Order 41 Rule 23-A CPC, lays down as follows :-
"Where the court from whose decree an. appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has Under Rule 23."
19. The order of remand was passed by the first appellate Court Under Order 41 Rule 23-A, CPC. A reading of the same would show that remand is not a matter of course Unless the appellate Court reaches as conclusion that findings on an issue are not sustainable and the matter requires re-trial, the case cannot be remanded without reversing the findings of the trial Court. Mere fact that the appellate Court has allowed the application Under Order 6 Rule 17, CPC, or the application Under Order 18, Rule 17-A, CPC, or Order 1 Rule 10, CPC, is not ground to remand, the case for retrial. In this case there are certain findings which have gone against the plaintiffs and there are certain findings which have gone against the defendants. Through the proposed amendment, a very limited aspect of the case was being raised by the plaintiffs. They were stating that they were ready and willing to purchase even 5/7 share of defendants No. 1, 3, 5 and 7, even if it is held that the defendants No.4 and 6 had not given any authority to sell their share to defendant No.7, and they are ready to pay the entire consideration of Rs.8,000/-which was earlier agreed to be paid when the defendant No.7 allegedly executed an agreement of sale on his behalf and on behalf of defendants No. 1 to 6. In order to adjudicate this aspect, the first appellate Court could remand the issue as to whether the plaintiffs could be granted decree for specific performance with regard to 5/7 share after entertaining the amended plant and by giving opportunity to the contesting defendants to file the written statement on the additional issue. If necessary, the first appellate Court could either record the evidence at its own level or could call for the report of the trial Court. There was hardly any justification on the part of the first appellate Court to remand the case and set aside the entire judgment and decree and order for the re-trial. In this regard, 1 can place reliance upon Hawa Singh v. Lal Singh 1998(4) R.C.R. (Civil) 165, where it was held :-
" A perusal of this provision would show that the appellate Court will have the power Under Rule 23 only after it has reversed the decree in appeal and then considers retrial necessary. Before the appellate Court can remand a case for retrial to a lower Court it has to come to a conclusion that the decision of the trial Court is liable to be reversed or set aside on merits, Order 41 Rule 23-A the of the Code pre-supposed that if the decree is reversed in appeal and retrial, considered necessary it is only then that the power of remand can be exercised. An appellate Court cannot reverse the decree as a matter of course whenever it thinks think retrial has become necessary obvious that in order to reverse a decree the findings given by the court on the issues are to be considered and are to be set aside before a decree can be said to have been reversed. Without doing so, the decree cannot be reversed in appeal....."
20. The learned Counsel for the respondents tried to convince me that the order of. remand was justified because the finding were inter-linked with the proposed plea of amendment but I do not subscribe to the argument of Mr. Bansal. thus, I hold that the learned first appellate Court was not justified in remanding the case to the trial Court setting aside the judgment and decree of the, trial Court Under Order 41 Rule 23-A, CPC, and this aspect of the case is hereby reversed and is set aside.
21. With regard to, the second aspect of the case, whether the amendment Under Order 6 Rule 17, C.P.C, as granted by the first appellate Court is justified or not the Senior Counsel Mr. Jain submitted that by allowing the application Under Order 6 Rule 17, C.P.C. a valuable right of the appellant has been, taken away, He even contended that the amendment allowed by the first appellate Court was highly belated and it was mala fide. It was not even necessary and a serious prejudice has been caused to the appellant and so much so it is beyond limitation. The counsel submitted that the basic pleadings with regard to readiness and willingness with respect of 5/7 Share was never incorporated in the original plaint and to allow this amendment at the appellate stage would furnish a new cause of action to the plaintiffs arid introduction of this cause of action at a belated stage amounts to filing of the suit beyond the period, of limitation. In support of his contention, the learned counsel for the appellant also gave an illustration that earlier the plaintiffs alleged in the plaint that they were ready and willing to purchase the Share of defendants No. 1 to 7 against a consideration of Rs. 8,000/- meaning thereby, 7/7 units for a consideration of Rs.8,000/-. Now, they have alleged that they are ready and willing to purchase 5/7 units against mat very consideration. Since, there was no averment with regard to 5/7 share in the original plaint and this averment is coming for the first time in the appellate Court, therefore, the suit has become defective.
22. On the contrary, the learned counsel for the respondents submitted that this plea was taken up by the plaintiffs in the shape of alternative plea. They still insist and say that the defendant No. 7 had the authority express and implied, to sell the entire share to the plaintiffs. In view of the findings given by the trial Court that defendants No.4 and 6 had not executed any Power of Attorney in favour of defendant No. 7, therefore, in that light, it has become necessary to take a plea in the alternative that the plaintiffs are even ready and willing to purchase the property of defendants No. 1, 2, 3, 5 and 7 against the agreed consideration of Rs. 8,000/-. The cause of action has not been changed. There was no mala fide on the part of the plaintiffs and no valuable right has accrued to the present appellant, who was none else but a subsequent vendee of defendants No.1 to 7 and his rights will swim and sink with defendants 1 to 7. The counsel for the respondents even submitted that the appellant was not a bona fide purchaser and, therefore, he is bound by the ultimate decree which may be passed for specific performance by the first appellate Court.
23. 1 have considered the rival submissions of the parties and I am of the considered opinion that the first appellate Court was justified in granting the application Under Order 6 Rule 17, C.P.C, and 1 do not see any illegality in this regard. In the view of this Court, no cause of action has been changed. The plaintiffs are only claiming a lesser relief by way of abundant caution. By stating that in case the first appellate Court or any other Court of competent jurisdiction comes to the conclusion by reversing the judgment and decree of the trial Court that the plaintiffs are entitled to get the specific performance of 5/7 share of the five defendants, they are ready to purchase the same against the agreed consideration of Rs.8,000/- they have not changed the cause of action nor they have taken away any valuable right of defendant No. 8 and no prejudice is going to be caused to defendant No.8 who has no independent interest than that of defendants 1 to 7.
24. In this regard, I can place reliance on 1997(1) C.C.C. 102, where it was held that if in a suit for injunction, the plaintiff seeks amendment by relinquishing his claim in respect of the part of the land, this does not mean introducing a new cause of action and the party can always reduce his claim for specific performance by amending the plaint. Virtually this has been allowed by the first appellate Court. The plaintiffs have never said or agreed, that they are not entitled to the specific performance of the whole property. They have simply stated in the alternative mat if the Court feels that the plaintiffs can only get the specific performance of 5/7 share instead of 7/7 share, they may be permitted to do so and the plaintiffs are ready to pay the entire amount. Had the position been reversed. I would have agreed with the counsel for the appellant. If the plaintiffs earlier claimed 5/7 share and, now, with the proposed amendment they wanted to claim 7/7 share, it could be said with certain force that the plaintiffs have never alleged earlier that they were ready and willing to perform their part of the contract with regard to the 7/7 share. Moreover, under the Specific Relief Act, the only essential ingredient of the law is that the plaintiffs should allege and aver that they were ready and willing to perform their part of the contract at all material times, i.e the agreed date of performance and on the date of the institution of the suit. Readiness and willingness is a question of fact which has to be decided by the Court upon the appreciation of the evidence led by the parties. Reliance can also be placed upon C. Nagamma and Anr. v. Siro-manamma and Anr. 1996(2) Civil Court Cases 720 (S.C.), where it was held that the amendment seeking alternative relief can always be allowed.
25. Still reliance can be placed upon Rakesh Kumar and Anr. v. Satpal, (1986)88 P.L.R. 425, in which it was held that the decree for specific performance can be ordered for lesser share of the property than agreed upon to be sold subject to the fulfilment of the conditions enumerated in Section 12.
26. Further reliance can be placed on M.R.K. Rau and Os. v. Corporation of the City of Bangalore, 1992 Civil Court Cases 692 (Karnataka), in which it was held that the amendment of pleadings can be allowed at any stage of the proceedings either in the suit or in the appeal provided it is necessary for the purpose of deciding the controversy between the parties and it is not barred by time. Further, amendment of pleadings can also be allowed if it is requited to do justice.
27. Faced with this difficulty, the counsel for the appellate drew my attention to the case law and the first judgment on which reliance was placed was Banta Singh and others v. Shrimati Harbhajan Kaur and Ors,1974 P.L.J. 328, a Full Bench Judgment of this Court, in which it was held that before allowing the application Under Order 6 Rule 17, C.P.C, the Courts should always take into consideration whether application foe amendment has been made' bona fide and the amendment, if allowed, whether takes away a valuable right which accrued to opposite party by lapse of time or not.
28. I have gone through this judgment. There is no dispute with the basic principles of law which I have also applied in the present case. By no stretch of imagination, it can be said that the application Under Order 6 Rule 17, C.P.C. moved by the plaintiffs at the appellate stage was a mala fide act or that it had taken away a valuable right of the appellant. The judgment which has been retted upon by the counsel for the appellant deals with pre-emption. In the trial court, the defendant took the stand that the suit for partial pre-emption was not maintainable. In spite of that, the plaintiffs insisted with the continuation of the suit which was dismissed. In this view of the matter, the plaintiffs prayed for the amendment of the plaint at the appellate stage and it was not allowed. On facts, the judgment is distinguishable.
29. Counsel for the appellant, then, relied upon K. Raheja Construction Limited v. Alliance Ministries and others, A.I.R. 1995 S.C. 1768, This judgment is not applicable to the facts of the present case. Earlier, in the cited case, the plaintiffs filed a suit for injunction restraining the defendants from alienating the suit property. Later on, an amendment was sought for the relief of specific performance of the contract and a plea was taken up by the plaintiffs that the amendment was necessary in view of the subsequent knowledge about permission being granted By Charity Commissioner. The plaintiff admitted in the plaint that the defendants have refused to abide by the terms on the contract. In these circumstances, the Hon'ble Supreme Court held that the plaintiffs ought to have asked for the relief of specific performance at the very beginning when the plaintiffs knew that the defendants were not ready and willing to perform their part of the contract. At the most the plaintiffs could even allege in the plaint that the defendants are bound to abide the permission. In this background, the amendment was not allowed and approved.
30. The counsel, then, relied upon Muni Lal v. Oriental Fire and General Insurance Co. Ltd. and another, (1996-2)113 P.L.R. 209 (S.C.). In this case, the plaintiff sought the amendment at the appellate stage when it had already become bared by limitation. Here the question of limitation does not arise. As I have stated above, the plaintiffs were seeking an alternative relief to the effect that they are ready to purchase even the lesser share of those defendants Whose execution is found established.
31. The counsel for the appellant also relied upon Vijendera Kumar Goel v. Kusum Bhwania (Smt.), 1997(1) S.C.C. 457. In the cited case, the suit was for injunction and declaration. The plaintiff did not file the suit for specific performance at the first stage. Amendment was sought to claim the relief of specific performance when it had become barred by limitation. Here, it was a suit for specific performance itself on the basis of the agreement of sale against seven defendants and their subsequent vendee defendant No. 8
32. In view of my above discussion, this appeal is partly allowed, the judgment dated 11.11.1987 is modified and directions are given to the Additional District Judge, Faridabad, to re-admit the appeal to its original number. The judgment and decree of the trial Court stands restored. The learned Additional District Judge shall entertain the amended plaint from the plaintiff. He will call upon the defendants to file the written statement to the amended plaint: If the learned Additional District Judge considers it necessary and proper to frame an issue he shall frame the necessary issue in this regard in the light of the amendment allowed. After framing the issue, he may record the evidence at his own level or he may call for the report of the trial Court on the additional issue, if framed by him. After recording the evidence or after entertaining the report he shall decide the appeal according to law and on merits.
33. Parties, through their counsel, are directed to appear before the first appellate Court on 22.11.1999.
34. Copy of the order be given dasti to parties and one copy of the order be sent to the Additional District Judge, Faridabad, for compliance.