Narinder Kaur & Anr. v. Baljit Singh

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sanjeev Pandit, Advocate for the petitioners. * * * L. N. MITTAL, J. (Oral) : This is revision petition by defendants under Article 227 of the Constitution of India assailing order dated 01.05.2010, passed by learned Civil Judge (Senior Division), Amritsar, whereby application Annexure P-4 filed by plaintiff-respondent for amendment of plaint has been allowed. Plaintiff filed suit on the basis of document dated 13.09.2005 (Annexure P-1), which is broadly to the effect that defendants had struck deal of their plot measuring 1200 sq. yds. @ Rs.3900/- per sq. yd. with the plaintiff and had received Rs.2,00,000/- as advance money and formal agreement would be executed on 14.09.2005 (a day after) and sale deed would be executed on 13.09.2006 (a year after). The plaintiff sought C. R. No. 3769 of 2010 2 permanent injunction restraining the defendants from alienating the suit property to anybody else except the plaintiff. Relief of mandatory injunction directing the defendants to execute formal agreement to sell pursuant to writing Annexure P-1 was also sought. During pendency of the suit, plaintiff moved application Annexure P-4 dated 24.02.2007 seeking amendment of the plaint to convert it into a suit for specific performance of the agreement to sell Annexure P-1. It was alleged that at the time of filing of suit, relief of specific performance was not available as date specified for execution of sale deed had not expired, but during pendency of the suit, the said date expired and therefore, plaintiff became entitled to relief of specific performance. It was also alleged that during pendency of the suit, defendants had alienated the suit land vide sale deed dated 18.12.2006 and therefore, vendees were also to be impleaded and necessary consequential amendments were also sought. I have heard learned counsel for the petitioners and perused the case file. Learned counsel for the petitioners contended that judgment of this Court in the case of Col. Satwant Singh vs. Uma Bakshi reported as 2009 (2) Civil Court Cases 169 (P&H), relied on by the trial court, is not applicable to the facts of the instant case because in that case, there was an agreement to sell, whereas in the instant case, there is no agreement to sell. The contention cannot be accepted because in the instant case also, the C. R. No. 3769 of 2010 3 plaintiff has based his claim on writing Annexure P-1, wherein area of the suit land is mentioned, rate of sale consideration is mentioned and advance money allegedly paid by the plaintiff to the defendants is mentioned and it is also recited that sale deed would be executed on 13.09.2006. Consequently, it cannot be said that judgment in the case of Col. Satwant Singh (supra) is not applicable to the facts of this case. On the contrary, when plaintiff filed suit on 26.09.2005, he was not entitled to seek relief of specific performance because by then, date stipulated in writing Annexure P-1 for execution of the sale deed had not expired and therefore, suit for specific performance at that stage would have been premature. However, after date for execution of sale deed i.e. 13.09.2006, as stipulated in writing Annexure P-1 expired, the plaintiff without much delay filed amendment application dated 24.02.2007. Consequently, the proposed amendment has been rightly allowed. There is no illegality or infirmity in the impugned order of the trial court, although the order is a bit sketchy. Learned counsel for the petitioners, relying on a judgment of this Court, in the case of Ram Parkash vs. Food Corporation of India, Chandigarh and others reported as 2004 (1) Civil Court Cases 643 (P & H), contended that the plaintiff, by amendment of plaint, cannot be permitted to change the nature of the suit. The contention is misconceived. In the instant case, as noticed herein above, plaintiff's case is based on writing Annexure P-1 and even after amendment, the said writing C. R. No. 3769 of 2010 4 remains the basis for the suit. Amendment had to be sought on account of subsequent development, which took place during the pendency of the suit. It was during pendency of the suit that cause of action arose to the plaintiff to seek relief of specific performance and it was also during pendency of suit that defendants alienated the suit property necessitating consequential amendment. On the other hand, in the case of Ram Parkash (supra), suit was filed for declaration and injunction, but by amendment, the plaintiff wanted to claim damages. The amendment was therefore held rightly declined. Facts of the said case are completely different from the facts of the instant case. Learned counsel for the petitioners also contended that writing Annexure P-1 is vague inasmuch as khasra no. of the land has not been specified therein. It is contended that the said writing is therefore vague and cannot be enforced. Reliance in support of this contention has been placed on a judgment of Hon'ble Supreme Court in the case of Vimlesh Kumari Kulshrestha vs. Sambhajirao and another reported as 2008 (2) Civil Court Cases 153 (S. C.). The question whether writing Annexure P-1 is vague and unenforceable, would be adjudicated upon by the trial court after trial of the suit and cannot be decided at preliminary stage without giving opportunity to the parties to lead evidence in support of their respective versions. In the case of Vimlesh Kumari Kulshrestha (supra), it was appeal against final decision and not at the threshold of the suit. This C. R. No. 3769 of 2010 5 judgment is not applicable to the facts of the instant case relating to amendment of plaint. For the reasons recorded herein above, I find no merit in the instant revision petition, which is accordingly dismissed in limine. July 16, 2010 monika ( L. N. MITTAL ) JUDGE