Kaur & Others vs NIDHI GUPTA

Brief facts of the case are are that the petitioner had filed Civil Suit (Ann (Annexure P4) seeking declaration ion to the effect that deceased Kulvinder Sing Singh predecessor-in-interest of t of the defendants/respondents herein, had en d entered into Agreement dated 17 d 17.02.2007(Annexure P1) with SUNENA 2025.03.04 12:31 I attest to the accuracy and integrity of this document (cid:1) 8 (cid:1) the petitioner ner to sell the suit property. Physic ysical possession of the suit plot was handed o ed over to the petitioner at the tim e time of execution of the said Agreement to t to Sell dated 17.02.2007, up upon payment of total sale consideration tion of Rs.11,70,000/-. Kulvinder Sin r Singh had also promised to get the Sale Deed eed registered on 11.09.2007.The The present suit (Annexure P4), was filed by t by the petitioner on 7.3.2017 as, as, the defendants being legal representative atives of deceased-Kulvinder Singh a gh are legally bound to perform the contract act and get executed and registe gistered the Sale Deed of suit property in f in favour of the petitioner as pe s per terms and conditions of Agreement da t dated 17.02.2007. Thus, petitione ioner had also sought decree of mandatory in y injunction directing the defenda ndants to perform the part of Kulvinder Sing Singh as agreed by him vide Ag Agreement dated 17.02.2007. Decree for p or permanent injunction was al also sought restraining the defendants fr s from ousting and dispossessin essing the plaintiff from suit property, caus causing any kind of interference in e in the peaceful possession of the plaintiff ov iff over the same.

3. The defendants/responden ndents herein, had appeared and filed the writte ritten statement dated 30.03.2017 017 (Annexure P5).

4. During trial the petition itioner filed application dated

09.07.2019 (A (Annexure P6) before the learned rned Civil Judge, Junior Division, Kurukshetra f ra for allowing secondary evide vidence and to summon the witnesses afte after allowing the secondary eviden idence; thereby pleading that on

05.09.2007 or 7 original Agreement dated 17.02.2 .02.2007 was misplaced by him. SUNENA 2025.03.04 12:31 I attest to the accuracy and integrity of this document (cid:1) The petitioner oner tried his best to trace out orig original Agreement, however, to 8 (cid:1) no avail. As su s such, the petitioner lodged DDR DDR No.22 dated 11.09.2007 in Police Chowk owki Third Gate Kurukshetra U University, Kurukshetra. The petitioner als also requested Advocate-cum- -Notary Public to supply a certified copy opy of Entry No.80 dated 17.02.200 .2007. However, Notary Public in connivance wi e with the defendants dishonestly t stly tore the page containing the said entry/rec /record mentioning the Agreement ent dated 17.02.2007 only with the intention tion to cause damage to the pl plaintiff. On 09.05.2014, the petitioner m moved written complaint to to Superintendent of Police, Kurukshetra ag ra against defendants and Notary Pu ry Public for destroying the entry of the Agreem reement to Sell dated 17.02.2007

07. As such, the petitioner was constrained t d to file application dated 09.0

09.07.2019 (Annexure P6) for allowing seco secondary evidence; which applic pplication was allowed by the learned trial C ial Court vide order dated 14.10.20 .2022.

5. Ld. Counsel for the petiti etitioner submits that however, during the pe e pendency of the suit in the mon month of July, 2020, upon the outbreak of C of Covid-19, the defendants in c in connivance with each other illegally and un d unlawfully demolished the bound undary wall of the suit property behind the pe e petitioner and gathered the buildi uilding material. The defendants illegally took p ok possession of suit property, and and raised construction on the plot in questio estion. Accordingly, on 03.12.2022, 022, the petitioner filed present application un n under Order 6 Rule 17 CPC (Ann (Annexure P7) for permission to amend the pl e plaint to add new Para 9A, to th o the effect that the possession SUNENA 2025.03.04 12:31 I attest to the accuracy and integrity of this document (cid:1) and constructi ruction raised by the defendants ov s over the suit property is illegal and unlawfu awful. The prayer clause w was also sought to be 8 (cid:1) amended/sub substituted to the effect that decre ecree that the petitioner should get possessio ession of the suit property aft after demolishing the illegal construction r on raised by the defendants. It is c is contended that the proposed amendment w nt was necessary being subsequen uent events; and therefore, the ld. trial Court ourt was in error in dismissing the the application vide impugned order dated 0 ed 03.07.2023 (Annexure P8). It is It is accordingly prayed that the impugned ord order be set aside.

6. Per contra, learned counsel respondents/d ts/defendants vehemently opposes oses the prayer made on behalf of the petition titioner and totally denies the alleg alleged Agreement to Sell dated

17.02.2007. It . It is submitted that original Agre Agreement to Sell has not been placed on reco record by the petitioners. It is den denied that such an Agreement was ever ente entered into between Kulvinder Si r Singh and the petitioner; and therefore que question of delivery of possession sion to the petitioner, does not arise. In fact, act, Agreement to Sell is not neith either produced nor proven on record. It is c is contended that the petitioner ner should have filed suit for specific perfo performance of alleged Agreem eement. Present suit is not maintainable. ble. Moreover, the trial is at the sta e stage of defence evidence. No due diligence nce has been exercised by the pe e petitioner. Therefore, present application wa was not maintainable and has bee been rightly dismissed. SUNENA 2025.03.04 12:31 I attest to the accuracy and integrity of this document (cid:1)

7. No other argument is mad made by learned counsel for the 8 (cid:1) parties.

8. I have heard learned coun ounsel and perused the case file in minute deta detail.

9. It has been vehemently ass y asserted by learned counsel for the petitioner oner that possession of suit prop property was delivered to the petitioner at t at the time of execution of the Agre Agreement on 17.2.2007. In this regard, Petitio titioner has made reference to the the averments made in Para 9 of the plaint (Ann (Annexure P4) that: - “9. That the possession of the suit to the plaintiff by the deceased Ku the date of execution of agreeme and since then the plaintiff is in t occupation of the suit property obstacle. The plaintiff has also rai property.” suit property was also delivered ed Kulvinder Singh at the spot on eement to sell dated 17.02.2007 s in the exclusive possession and erty without any hindrance and o raised foundation over the suit

10. The above assertions of of the petitioner have been categorically lly denied by the respondents/ ts/defendants in their written statement dat dated 30.03.2017 (Annexure P5), as as follows:- “9. That para-No.9 of the plain denied. The story mentioned in concocted. When there is no alle plaintiff scribed by late Kulwinde giving possession of alleged plo agreement to sell dated 17.02.20 plaintiff never remained in posses the facts given in this para are raised any foundation as alleged i plaint is wrong and specifically ed in this para is wrong and alleged agreement in favour of inder Singh, so the question of d plot on the basis of alleged 2.2007 does not arise at all. The ossession of the alleged plot and are totally wrong nor he ever ged in this para.” SUNENA 2025.03.04 12:31 I attest to the accuracy and integrity of this document (cid:1)

11. From the above, it would uld appear that the assertion of 8 (cid:1) the petitioner oner to the effect that possession ssion was delivered at time of execution of of the Agreement, is incorrect. t. It is not mentioned as to in whose presen sence the possession was delivere vered. Even no details regarding as to on wh which date the petitioner was d as dispossessed from the suit property is me s mentioned. The plaintiff’s case is e is based on the Agreement to Sell dated 17.

17.02.2007 which is not produced ced on record by the petitioner. Admittedly, th y, there is no Sale Deed pursuant to t to the Agreement to Sell.

12. Furthermore, Order 6 Rule Rule 17 CPC reads as under: - “17. Am proceedi such ma amendm determin Provided . Amendment of pleadings. -The Cou ceedings allow either party to alter manner and on such terms as endments shall be made as may be n ermining the real questions in contro vided that no application for amend e Court may at any stage of the alter or amend his pleadings in as may be just, and all such be necessary for the purpose of ntroversy between the parties: endment shall be allowed after the trial trial has commenced, unless the Co e Court comes to the conclusion that in s t in spite of due diligence, the part party could not have raised the matter b tter before the commencement of tria of trial.”

13. A bare reading of the abov above proviso shows that it is very categorically stipulated therein that “...no app application for amendment shall be allowed aft d after the trial is commenced , un , unless the Court comes to the conclusion tha that in spite of due diligence, the pa he party could not have raised the matter before fore the commencement of trial.”

14. In the present case, issu issues were framed vide order dated 22.05.2

5.2018. Thus, the present applicati ication could not have been filed thereafter. The . The only situation in which amend endment after commencement SUNENA 2025.03.04 12:31 I attest to the accuracy and integrity of this document (cid:1) of trial is envis nvisaged is if ‘in spite of due diligen ligence, the party could not have raised the mat matter before commencement of tr of trial.’ However, in the present 8 (cid:1) case it has bee been alleged that the petitioner w r was dispossessed in July 2020. Yet, applicatio ation for amendment has been file filed 2 1/2 years thereafter, on

03.12.2022.Cle .Clearly, therefore, the petitioner ner had failed to exercise due diligence also. also. The matter is now at the stage tage of defence evidence. At this belated stage, age, application of the petitioner can r cannot be entertained.

15. Reasoning of the learned ned trial Court is contained in Para 6 of the im he impugned order which reads as f as follows:- “6. Perusal of the case file, it is re is at the stage of secondary ev plaintiff filed an application fo proving the agreement to sell da allowed by this Court vide order submission of the plaintiff that property was illegally taken demolishing the wall, therefore delivered after vacating the sam the present application, it is reve month or year has been mentione that when the plaintiff was d property. It has only been averre that in the month of July, 2020, th Court was not going on due t defendants, in collusion with each the boundary wall/foundation gathered the building materia construction over the plot in qu mentioned that this construction July, 2020. Even if it is presu Ju dispossessed from the suit prop 2020, then also, the present appli plaintiff in December, 2022 i.e. a years. Further, the Court is of th is revealed that the present case y evidence of the plaintiff. The n for secondary evidence for ell dated 17.02.2007, which was rder dated 14.10.2022. It is the that the possession of the suit en by the defendants after fore, the same may kindly be same from the spot. Perusal of revealed that no specific date, tioned in the present application as dispossessed from the suit verred in the present application 0, the functioning of the Hon'ble ue to Cavid-19, therefore, the each other, illegally demolished ion of the suit property and terial with a view to raise n question, but it has not been ction was made in the month of resumed that the plaintiff was property in the month of July, application has been filed by the i.e. after a gap of more than 2 of the view that if the present SUNENA 2025.03.04 12:31 I attest to the accuracy and integrity of this document (cid:1) 8 (cid:1) the nature of the present suit application is allowed, then the r, the case of the plaintiff is would be changed. Further, th ll dated 17.02.2007, which is still standing on agreement to sell dat t this stage, the plaintiff is failed required to be proved and at this ssession of the suit property and to establish that he was in posses ession of the suit property was in whose presence, the possessio e plaintiff has sought declaration delivered to him. Further, the pla ll and photocopy of the said qua the agreement to sell an d on record, but the fact that agreement has been placed on possession of the suit property w rty was delivered to the plaintiff ein.” has not been mentioned therein.”

16. Learned counsel for the pe e petitioner is prima facie unable to dispute or c or controvert the aforesaid facts an s and findings.

24.02.2025 Sunena In view of the above, prese resent petition is dismissed. Pending application(s) if an if any also stand(s) disposed of. (Nidhi Gupta) Judge Whether Whether ther speaking/reasoned: ther reportable: Yes/No /No /No Yes/No SUNENA 2025.03.04 12:31 I attest to the accuracy and integrity of this document (cid:1)