High Court
Case Details
CRP 467/2012 BEFORE HON’BLE MR. JUSTICE N. CHAUDHURY
Legal Reasoning
By this application under Article 227 of the Constitution of India, the defendan t has challenged order dated 04.10.2012, passed by the learned Munsiff No. 1, Ba rpeta in Title Suit No. 296 of 2007, allowing an application of the plaintiff fo r amendment of plaint so as to incorporate paragraph 12A therein. The plaintiff filed Title Suit No. 296 of 2007 for specific performance of contr act of an agreement dated 18.12.2005 whereby the defendant had received a sum of Rs. 10,000/- in cash from the plaintiff, agreeing to sell 12 ‰ lechas of land a t a consideration of Rs. 1,75,000/-. According to the averments of the plaint, t he balance amount was paid by the plaintiff to the defendant on different dates but even thereafter the defendant did not execute and register the sale deed des pite repeated requests. Ultimately on 13.07.2007 the defendant took over possess ion of the suit land at mid-night dispossessing the plaintiff. On 14.07.2007, ha ving come to know about dispossession, the plaintiff asked the defendant to vaca te the suit land reminding him that full consideration for the proposed sale hav ing been said, the defendant was duty bound to execute any register sale deed. I t is further stated in the plaint that the defendant at this stage had demanded Rs. 1,00,000/- more as a pre-condition to execute sale deed. Hence, the suit for specific performance of contract was instituted. The defendant appeared and denied the case of the plaintiff by submitting writte n statement. The suit was tried and ultimately it was decreed on 04.05.2010. Agg rieved thereby, the defendant preferred an appeal before the learned Civil Judge , Barpeta by Title Appeal No. 25 of 2010. The appellate Court after perusal of t he materials on record allowed the appeal and remanded the case to the trial Cou rt framing an additional issue as to whether the plaintiff was ready and willing to perform his part of the contract. The appellate Court issued direction to th e trial Court to give full opportunities to the parties, so as to adduce further evidence, if any, by way of re-examination and cross-examination of already exa mined witnesses / fresh witnesses and thereafter to pass a judgment afresh. After the suit was remanded to the trial Court, the plaintiff filed an applicati on on 05.05.2012 praying for amendment of the plaint so as to incorporate a new paragraph as paragraph 12A. The said amendment application is at Annexure-5 of t his revision petition. A perusal of the amendment application shows that, by the proposed amendment, the plaintiff wants to incorporate a statement in regard to his readiness and willingness to perform as part of the contract and to make fu rther payment of Rs. 2,000/- to the defendant and also to bear the expenditure f or the registration of the sale deed. Vide paragraph 9 of the said application i t was categorically admitted by the plaintiff himself that there was negligence and laches on the part of the plaintiff in not praying for amendment earlier and it is after the date of judgment by the learned appellate Judge, the accidental slip of omission in regard to the fact of payment of Rs. 10,000/- on 25.01.2006 , could be detected. There is no averment, any where, in the application in rega rd to exercise of due diligence by the plaintiff. The defendant submitted writte n objection, annexed the application for amendment, stating interalia, that the learned appellate Court allowed the parties to adduce fresh evidence but did not grant leave to amend the plaint. It was stated that introduction of new paragra ph as 12A in the plaint would amount to bringing new facts into record and in th e process the defendant would suffer from substantial injury, etc. The learned Court after hearing the parties, passed order on 04.10.2012. It appe ars from perusal of the order impugned in this case that an observation was made at the anterior part of the order in regard to exercise of due diligence by the party praying for amendment. But in the later part of the order, it does not ap pear as to whether the said relevant aspect of the matter, namely, the question in regard to exercise of due diligence, at all received any consideration of the learned Court or not. The operative part of the order shows that the learned tr ial Court was under the impression, as if, the plaintiff was trying to add only one sentence, namely, (cid:28)they are ready and willing to perform their part of the c ontract. (cid:29) There is no discussion whatsoever as to whether incorporation of the n ew paragraph 12A in the plaint would result in bringing any new fact. In this vi ew of the matter, it appears that the learned trial Court committed jurisdiction al error in allowing the prayer for amendment without considering as to whether the application for amendment could not be made earlier inspite of due diligence . The statute requires such a consideration, if prayer for amendment is made aft er the trial of the suit has commenced. In the case in hand, not to speak of com mencement of trial, the trial has once been completed and the matter was taken t o the appeal on merit. The plaintiff has filed application for amendment only af ter remand and as such, it was all the more important on the part of learned tri al Court to consider (i) as to whether the plaintiff had exercised due diligence (ii) as to whether allowing the amendment would result in incorporation of new facts, and (iii) as to whether proposed amendment would give rise to new cause o f action. Impugned order dated 04.10.2012 does not indicate as to whether the le arned Court gave consideration in this relevant aspect of the matter. In view of what has been stated above, the order dated 04.10.2012 passed by the learned Munsiff No. 1, Barpeta is set aside. The learned trial Court shall consider the application for amendment and the obj ection filed thereto in the light of the observation made herein above as well a s the preponderant judicial pronouncements holding the field. The revision petition is accordingly allowed. The party shall appear before the learned trial Court on 25.06.2013 for obtainin g necessary orders. No order as to costs. Stay order passed earlier shall stand automatically vacated with the disposal of this revision petition.