Gurjit Singh v. Kuldip Singh & Anr.

Present: - Mr. Chetan Mittal, Sr. Advocate, with Mr. Gaurav Mohunta, Advocate, for the petitioner. Mr. A.K. Chopra, Sr. Advocate, with Mr. Harminder Singh, Advocate, for the respondents. ***** VINOD K. SHARMA, J (ORAL) This revision petition is directed against the order dated

25.4.2009, passed by the learned Civil Judge (Senior Division), Gurdaspur, on an application moved by the petitioner under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the execution application. The plaintiff/petitioner filed a suit for specific performance of agreement to sell, which was decreed with the consent of the parties. The date fixed for execution of the sale deed was on or before

13.10.2005. The petitioner on 14.10.2005 moved an application under Sections 151, 152, 153 of the Code of Civil Procedure for passing of Civil Revision No. 3409 of 2009 (O&M) -2- appropriate orders for adjustment of amount of stamp papers valued Rs.1,31,060/- (Rupees one lac thirty one thousand and sixty only) for four scribed sale deeds and one blank stamp paper and also for execution of decree dated 12.9.2005. The application was contested. It is the case of the petitioner, that during the pendency of this application, for non-execution of the decree, defendant-judgment- debtors filed an application under Section 28 of the Specific Relief Act for rescission of the contract. The petitioner thereafter moved application under Order 6 Rule 17 of the Code of Civil Procedure to incorporate the following amendment in para No.6 of the execution application: - “........and at the asking of the defendants Sub-Registrar refused to mark presence of the Plaintiff and also refused to get the sale deed registered which were presented by the Plaintiff in the presence of the defendants.” “That the applicant remained present in Tehsil Compound Gurdaspur on 10.10.2005 for getting execution the sale deed from the JD/respondents and he also remained present on 13.10.2005 in the office of Sub-Registrar, Gurdaspur since 9 AM to 5 PM. But the respondents/JDs did not come present to execute the sale deed in favour of the applicant/decree holder and ultimately the applicant/decree holder got his presence marked on both the said dates i.e. 10.10.2005 and

13.10.2005 vide an affidavits duly sworn by the applicant and attested by the Executive Magistrate Gurdaspur. However, under political pressure of the respondents, the said affidavits were not entered in the Civil Revision No. 3409 of 2009 (O&M) -3- register meant for recording the presence. Whereas, both the said affidavits were duly attested and signed by S. Phuman Singh the then Executive Magistrate, Gurdaspur, Sub-Registrar, Gurdaspur, on both the dates. It is worth mentioned that the applicant/DH remained present in Tehsil Compound Gurdaspur, even on 11.10.2005 as he has executed the sale deed on the said date in favour of Sunita Wife of Gurdip Chand. Copies of the affidavits dated 10.10.2005 and

13.10.2005 and that of the sale deed is enclosed hereto.” The learned trial Court did not find any merit in the application, however, while dismissing the application, moved under Order 6 Rule 17 of the Code of Civil Procedure, the learned trial Court decided the plea raised in amendment application to hold, that the averments made were not bona fide. The learned senior counsel appearing on behalf of the petitioner has not impugned the order dismissing the application under Order 6 Rule 17 of the Code of Civil Procedure, but has contested the finding recorded by the learned trial Court on merits qua the application filed under Section 28 of the Specific Relief Act. Impugned part of the order reads as under: - “I have carefully heard the learned Counsel as well as the parties who were present in the Court at the time of arguments. I have also perused the entire file. Whereas, present proceedings are under Section 28 of the Specific Relief Act seeking rescinding of the agreement dated 03.04.2003 filed by JD/Defendant, an application under Section 151, 152, 153, CPC stands filed in the present proceeding for passing of proper Civil Revision No. 3409 of 2009 (O&M) -4- orders for adjustment of amount of Stamp papers. At the same time the present application for amendment was filed by the applicant/DH, after he tendered his affidavit as RW-1 during the course of evidence being led by the parties under Section 28 of the Specific Relief Act. Perusal of the said affidavit of Gurjit Singh DH filed on record as RW-1 reveals that no reference to the marking of presence of the DH on 10.10.2005 and

13.10.2005 by means of affidavit has been made. The execution of affidavits on 10.10.2005 and 13.10.2005 was not a routine or an unimportant act but was an act which went into the root of the dispute qua the readiness and willingness of either of the parties for getting the sale deed executed on the basis of statements got recorded by the parties in the Court leading to the decreeing of the suit. The applicant/DH has also failed to put forth any explanation for his failure to plead about the said affidavits in his application. The documents now proposed to be brought on record by the DH means of amendment did not see the light of the day for almost three years. The possibility of said affidavits being fabricated and anti- dated documents can also not be ruled out, more particularly keeping in mind the nature of dispute and the factum of readiness and willingness of the parties being the only determining fact in the present case. The application filed by the DH/applicant under Order 6 Rule 17 CPC is therefore declined. Now for cross examination of respondent and for entire remaining evidence of respondent, to come up on 19.05.2009.” This contention of the learned senior counsel for the petitioner is not opposed by the learned senior counsel for the respondents. In view of the stand taken by the parties, the impugned part of Civil Revision No. 3409 of 2009 (O&M) -5- the judgment, vide which the observations have been made by the learned trial Court on merit of the controversy raised under Section 28 of the Specific Relief Act and the observations on merit with regard to the amendment, are set aside, and the order dismissing the application under Order 6 Rule 17 of the Code of Civil Procedure, for amendment of the application, is upheld. With above modification, this revision petition is disposed off. May 11, 2010 R.S. (Vinod K. Sharma) Judge