C.Raman v. P.Rajendran Selvaraju (Died), by his LRs.

ORDER This Civil Revision Petition has been filed against the order dated 12.11.2011 passed by the learned Principal Subordinate Judge, Salem, in IA No.470 of 2011 in O.S.No.562 of 2010, dismissing the 2 interlocutory application filed by the petitioner herein, under Order 6 Rule 17 CPC seeking amendment of the plaint.

2. Heard the learned counsel appearing for both sides and perused the entire material available on record.

3. The petitioner herein is the plaintiff. He filed a suit in O.S.No.562 of 2010 before the learned Principal Subordinate Court, Salem, for the following reliefs, viz., a) directing the 1st defendant to execute the sale deed in favour of the plaintiff with respect to the suit property after the receipt of the balance of sale price and surrender possession of the same to the plaintiff; b) if the 1st defendant fails to do so, the Court may execute the sale deed in favour of the plaintiff with respect to the suit property on behalf of the 1st defendant and deliver possession of the same to the plaintiff; c) declaring that the sale deed dated 14.10.2010 under document No.7549/2010 on the file of the Sub- Registrar Office, Sooramangalam executed by the 1st defendant in favour of the 2nd defendant as null and void, ab initio and not binding upon the plaintiff; d) granting permanent injunction restraining the 2nd defendant from in any way alienating or encumbering the suit property to any third parties; and 3 e) awarding costs of the suit.

4. During subsistence of the sale agreement dated 18.8.2010, it appears that the first respondent/1st defendant had sold the suit property vide sale deed dated 14.10.2010 to one Selvaraju, the 2nd defendant in the suit, who died during the pendency of the revision petition (hereinafter referred to as 'the second defendant'). Although the prayer sought for in the original plaint will take care of the interest of the petitioner/plaintiff in case he succeeds in the suit, the petitioner/plaintiff approached the trial Court by filing I.A.No.470 of 2011 invoking Order 6 Rule 17 CPC, for amendment of the plaint. The amendment sought for, was to direct the second defendant along with the first defendant to execute a sale deed in favour of the petitioner/plaintiff and also seeking for return of the advance amount which was paid under the original sale agreement as an alternative relief.

5. The said interlocutory application was sought to be resisted by the respondents/defendants on the ground that the second defendant is a bona fide purchaser for a valuable consideration and that he was not liable to create any sale deed in favour of the petitioner/plaintiff as there was no privity of contract between the petitioner/plaintiff and the second defendant. 4

6. The learned trial Judge, after adverting to the submissions put forth by the parties, dismissed the said interlocutory application on the ground that the amendment sought for was not on the same facts as pleaded in the original plaint and the Court must satisfy before allowing the amendment that it will not cause injury to the other side and that the proposed amendment would cause injury to the second defendant and in the absence of any privity of contract between the petitioner/plaintiff and the second defendant, the petitioner/plaintiff is precluded from seeking the relief against the second defendant under the guise of amendment.

7. As far as the alternative relief sought for by way of amendment, the learned trial Judge held that the Court is always empowered to grant additional or alternative relief in the circumstances of the case so warranted, without even being sought for and hence, there was no necessity for such amendment. In the light of the above reasoning, the trial Court dismissed the interlocutory application filed by the petitioner/plaintiff. Hence, the present Revision Petition. 5

8. On behalf of the petitioner/plaintiff, it is contended that the amendment sought under Order 6 Rule 17 CPC, became necessary in view of alienation of the suit property by the first respondent/first defendant in favour of the second defendant during the subsistence of sale agreement dated 18.8.2010. Even though it can be seen from the plaint, the relief of declaration was also sought, to declare the sale deed dated 14.10.2010 executed by the first respondent/first defendant in favour of the second defendant as null and void ab initio and not binding upon the plaintiff, the present amendment sought is only in addition to the said relief and it does not any way cause injury to the interest of the second defendant. The reasoning given by the learned Judge that the amendment sought was not on the basis of the facts stated in the original plaint, may not be correct since the averments in the plaint, several places pointed out the fact of sale executed in favour of the second defendant and that was one of the causes of action mentioned in the plaint. Therefore, the reasoning of the trial Judge is not sustainable. In any case, if the declaration prayer is granted, declaring the sale in favour of the second defendant as null and void ab initio, the suit property will vest back in favour of the 1st defendant and in turn with the plaintiff by the Court orders. Therefore, there would not be any prejudice to any party if the first limb of the amendment, i.e. "directing the second defendant to 6 execute the sale deed in favour of the petitioner/plaintiff", is included in the plaint, as one of the reliefs.

9. Further, as regards the second limb of the amendment regarding the return of the advance amount, even though the trial Jude held that such relief could be granted in the circumstances so warranted, there is no legal impediment for the same being added as one of the reliefs in the original plaint as no one could have any objection to such relief being sought for as an alternative one. As the petitioner/plaintiff has every right to seek return of the advance amount under the sale agreement.

10. On behalf of the petitioner/plaintiff, the following decisions were cited, viz., i) 2007(3) CTC 332 (Dhanalakshmi and othrs versus P.Mohan and others) ii) 2009 (1) CTC 775 (V.Ravimenon versus R.Ebinessar and others) iii) 2010-1-L.W.309 (G.Ramasubramani versus The District Forest Officer, Madurai and others)

11. The above first two decisions dealt with the issue of doctrine of lis pendens and whether an alienee, pending the suit is a proper and necessary party, this Court has held that the subsequent 7 purchaser is an essential for complete adjudication of the rights between the parties. In this case, this issue does not arise as the second defendant was already a party at the time the suit was filed. As regards 3rd decision (2010-1-L.W.309), this Court has held that the law is well settled that the Court may permit to introduce subsequent events into the pleadings by way of an amendment, as it would be necessary for the purpose of determining the real question and controversy between the parties.

12. From the foregoing discussion, it could be seen that no prejudice would be caused to other side by any stretch of factual or legal standards if the amendment as sought for, is allowed since the said amendment is only consequential in nature and does not change the character of the suit nor introduce a new cause. In the circumstances, the learned trial Judge has erred in dismissing the interlocutory application (I.A.No.470 of 2011) filed by the petitioner/plaintiff, seeking amendment and therefore, the came cannot be countenanced both in law and on facts. In view of the above, the Civil Revision Petition is allowed and the order, dated 12.11.2011 passed by the learned Principal Subordinate Judge, Salem in I.A No.470 of 2011 in O.S.No.562 of 2010 is hereby set aside. No costs. Since the suit is of the year 2010, 8 the trial Court is directed to complete the trial after allowing the necessary amendment as sought for in I.A No.470 of 2011 in O.S.No.562 of 2010 and dispose of the suit within a period of six months from the date of receipt of a copy of this order. Internet: yes/no Index: Yes/no 04-11-2016 9 V.PARTHIBAN, J. Pre delivery Order in CRP PD No.774 of 2012 04-11-2016 http://www.judis.nic.in