The proposed amendment to the plaint should not change the nature and character of the suit and should not be in clear contradiction to the case already set up.

Sanjeev Sachdeva, J.

1. Plaintiff by the present application under Order 6 Rule 17 CPC has sought amendment of the plaint.

2. Plaintiffs have filed the present suit seeking a declaration that the Plaintiffs be declared as the rightful owner of the suit property and for a declaration that the sale deed dated 27.12.2012 executed by Defendant No.1 in favour of Defendant No. 2 in respect of the suit property be declared as null and void with consequential relief of possession.

3. The Plaintiff No. 1 is the sister of the wife of the Defendant No. 1. The Defendant No. 1 who had purchased the property bearing municipal number 27/33 measuring 200 sq. yards out of khasra No. 3623/3096/2324/637/1 at village Chandawali, Shahdara by sale deed dated 19.07.2006 was stated to be interested in selling the same in the year 2007.

4. The Plaintiffs claimed to be looking for a property to construct a place for orphans, old aged persons, handicapped and other under privileged persons and the Plaintiff intended to purchase the suit property.

5. As per the Plaintiffs, the Defendant No. 1 stated that on account of certain disputes, a registered document could not be executed till the time the dispute were not cleared by the Court. However, the Defendant No. 1 agreed to sell the property for a sale consideration of Rs.32,50,000/-. The Plaintiff No. 1 claims to have paid a sum of Rs.15,60,000/- in cash and Rs.16,90,000/- by way of gold and diamond jewellery. Thus, the Plaintiffs claim to have paid the entire sale consideration to the Defendant either in cash or in gold. The Defendant is stated to have executed a deed of authorisation and an affidavit in favour of the Plaintiff and handed over the original sale deed of the property. As per the Plaintiff, Defendant No.1 on receipt of the entire sale consideration authorised the Plaintiff to act on behalf of Defendant No.1 in respect of the suit property.

6. The Plaintiffs thereafter noticed some construction activity on the suit property and on inquiry, Plaintiff came to know that Defendant No. 1 had sold the suit property by sale deed dated 27.12.2012 to Defendant No. 2 and handed over the actual vacant physical possession of the suit property to him. The Plaintiffs, thereafter, filed the present suit on 02.09.2013 seeking a declaration that the Plaintiffs be declared as the owner of the suit property and further that the sale deed dated 27.12.2012 executed by Defendant No.1 in favour of Defendant No.2 be declared as null and void and the consequential reliefs of permanent and mandatory injunctions.

7. The Plaintiffs by the present amendment have sought to amend the plaint and give up the relief of declaration that the Plaintiffs be declared as the owner of the suit property and further sought to incorporate the relief of specific performance. Certain paragraphs are sought to be further added to contend that the Plaintiffs were ready and willing to purchase the suit property as per the agreement.

8. Learned counsel for the Plaintiffs submitted that the averments and facts necessary to establish the relief of specific performance have already been pleaded, however, the relief of specific performance has not been specifically claimed. He further submitted that the cause of action for the Plaintiffs to file the present suit would accrue only on refusal by Defendant No. 1 to perform the agreement and the Defendant No. 1 refused only in the year 2013 and as such the suit would still be within limitation. He further submitted that the Defendant No. 1 could not execute the sale deed till the dispute between the Defendants get over. He further submitted that the Defendant No. 1 had executed authorisation/GPA and an affidavit in favour of the Plaintiff and handed over to the Plaintiffs the original title deeds of the property and as such the relief of specific performance was still within limitation. He contended that only a specific prayer with regard to specific performance was sought to be added and th