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On the other hand, it has been contended by learned counsel for the respondent-plaintiff that as per agreement, petitioner-defendant was to take no objection from the bank after clearing the loan and was to give notice to respondent-plaintiff and that, however, as he did not obtain no objection from the bank and, hence, there was no delay in filing the application for amendment of plaint for seeking relief of specific performance of the agreement. He has placed reliance upon Kuljit Singh's case (Supra), and argued that the amendment can be allowed to avoid multiplicity of proceedings.

The plea taken by learned counsel for the respondent-plaintiff that petitioner-defendant was to obtain no objection certificate from the bank and that as he did not get the same, hence, he could not file application for seeking amendment earlier, does not help the case of respondent-plaintiff. When the very execution of the agreement to sell has been denied by petitioner-defendant, it cannot be said that he was under an obligation to apply to the bank to seek no objection certificate in view of the said plea. Moreover, after filing of the written statement, nothing new happened giving cause of action to respondent-plaintiff to seek amendment for seeking relief of specific performance of alleged agreement to sell executed in his favour by petitioner-defendant.

So far as Kuljit Singh's case (supra) on which reliance has been placed by learned trial Court and learned counsel for the respondent- plaintiff is concerned, in that case no evidence was adduced when the application for amendment for seeking relief of specific performance was filed. Sufficient explanation was also given by plaintiff as to why he could not file the application earlier as the case remained pending for deciding one application or the other and, hence, on the peculiar facts and circumstances of that case it was observed that when no evidence was recorded and when fresh suit for possession by way of specific performance of the agreement within three years from the date of agreement could be filed, in order to avoid multiplicity of litigation, amendment was allowed.

However, in the present case, the alleged agreement is dated 22.8.2004, whereas the present application for amendment is filed on 16.11.2009, i.e., after expiry of three years from the date of alleged agreement. There is no explanation as to why respondent-plaintiff waited till the suit reached at the stage of arguments for seeking amendment.

Hence, in view of the mandatory provision of proviso added to Order VI Rule 17 of the Code, learned trial Court should not have allowed the application of respondent-plaintiff for amendment of plaint for seeking relief of specific performance of the agreement at the final stage of the case. Moreover, no reason, whatsoever, has been given by learned trial Court while allowing the said application. Learned trial Court has placed reliance upon Kuljit Singh's case (supra) without discussing the facts of that case and without discussing the facts of the present case and without even mentioning as to why respondent-plaintiff could not file application for amendment earlier.