Punjab-Haryana High Court
Sant Prakash Singh vs Nirmal Singh on 14 October, 1997
Equivalent citations: (1998)118PLR92
JUDGMENT G.C. Garg, J.
1. Petitioner filed a suit on 9.11.1990 for possession by specific performance of the agreement to sell dated 18.12.1988. The suit was contested by the defendant by taking a plea that he was out of India on the date of the alleged agreement to sell and that the agreement is the out-come of fraud played on him and the same seems to have been manufactured on a piece of paper, which he had given to his friend for depositing instalments. The suit remained pending for about six years when the plaintiff moved an application under Order 6 Rule 17 read with Section 151 of the Code of the Civil Procedure for the amendment of the plaint. This application was opposed by the defendant by filing a reply thereto. The trial court on a consideration of the matter dismissed the application by order dated April 22, 1996. Hence this revision at the instance of the plaintiff.
2. Learned counsel for the petitioner vehemently contended that the trial court acted with material irregularity and illegality in dismissing the application. Learned counsel further submitted that the law of amendment is very liberal and, therefore the trial court ought to have allowed the amendment as prayed for. Learned counsel for the defendant-respondent on the other hand submitted that the learned trial court has dismissed the application on just grounds and the only effort on the part of the plaintiff is to withdraw the admission already made in the plaint after having found that the defendant was not in India on the date of the agreement to sell. Learned counsel submitted that though this defence was taken in the written statement, but the application for amendment was moved only after a photocopy of the passport was placed on record.
3. The plaintiff while filing the suit for specific performance averred in the plaint that the earnest money in the sum of Rs. 18,000/- was paid to the defendant at the time of the execution of the agreement and that the agreement was executed by the defendant and the same was signed in his presence. The plaintiff did not produce any evidence, whatsoever, during a period of about five years after the issues were framed on 28.5.1991. He even himself did not step into the witness box till he moved an application seeking amendment of the plaint. By way of amendment plaintiff sought to plead that the amount of earnest money was paid to Baljinder Singh, a friend of the defendant and that Baljinder Singh, assured the plaintiff that he will get the same signed from Nirmal Singh, Defendant, and that he brought the agreement after some time signed by Nirmal Singh. In other words, the plaintiff wanted to delete the averment already made in the plaint to the effect that the earnest money was paid to the defendant and he signed the agreement in his presence. The plaintiff consequently by way of amendment of the plaint seeks to withdraw the admission already made in the plaint without any valid explanation. The admission made has not been shown to be wrong, nor has it been explained away. In fact, the averment is specific and categorical and it leaves no manner of doubt that he sought amendment only after coming to know from a photocopy of the passport placed on record, which showed that the defendant was not in India on the date of the alleged execution of the agreement to sell. He, thus by seeking amendment wants to withdraw his admission without furnishing any explanation therefore and seeks to add that the earnest money was paid not to the defendant, but to a friend of the defendant and that the agreement was got signed from Nirmal Singh by the said friend in his absence. He has further failed to show that he met Nirmal Singh immediately before or after the agreement to sell or that he paid or confirmed the payment from him at any point of time. No receipt executed by the defendant evidencing the receipt of the earnest money has been produced or relied upon, nor a power of attorney has been relied upon, which may have been executed by the defendant in favour of Baljinder Singh, a friend of the defendant. Thus, to me, it appears that the plaintiff sought amendment just to gain more time to produce evidence and to delay the disposal of the suit. As already noticed there is no explanation for the withdrawal of the admission and in the absence thereof, the trial Court in my opinion was right in declining the permission to amend the plaint. I, thus see no merit in the revision petition and the same is accordingly dismissed. Parties through their counsel are directed to appear before the trial court on 4.11.1997, for further proceedings.
4. Since the suit was filed in the year 1990 and no evidence has, yet been led by the plaintiff, the trial court is directed to dispose of the suit at a very early date after affording two to three opportunities to each of the parties for their respective evidence at short intervals. No costs.