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2009 Supreme(Ker) 1065
KERALA HIGH COURT
K.T. Sankaran, J.
Parappalliyil Dasan - Petitioner
Versus
K.K. Sasi - Respondent
W.P. No. 5393 of 2009
Decided On : 01-07-2009
Advocate Appeared:
For the Petitioner: A. Ranjith Narayanan, S.K. Saju
Headnote:
Code of Civil Procedure, 1908 - Order VI Rule 17 - Specific Relief Act, 1963 - Section 22 - Writ Petition - Suit for specific performance - Respondent filed the suit for an agreement to sell plaint schedule property claiming that the possession of property was entitled to him - Defendant denied the contention - Plaintiff and defendant both sought injunction - Court allowed defendant's application and also the amendment over possession on executing the sale deed - Held, The plaintiff was justified in making the application for amendment in view of the order passed by the court below in the applications for temporary injunction - Writ Petition is dismissed.
Key Points: - The plaintiff can seek amendment to add a prayer for possession or other reliefs under Section 22 of the Specific Relief Act (!) (!) (!) (!) . - The court may allow amendment of pleadings at any stage if it does not cause prejudice and is necessary to determine the real questions in dispute, subject to Rule 17 of Order 6 of the Civil Procedure Code (!) (!) . - The plaintiff was justified in filing the amendment application in view of the prior injunction orders, and the amendment did not change the nature and character of the suit (!) (!) (!) .
What is the right of a plaintiff to amend a plaint to include a prayer for possession in a suit for specific performance of a contract for transfer of immovable property?
Whether an amendment adding a relief for possession is permissible when the plaintiff initially claimed to be in possession and the defendant disputed it?
Can the court allow amendment of pleadings at a stage after the trial has commenced if the party could not have raised it earlier due to the order passed in temporary injunction applications?
K.T. Sankaran, J.
The defendant in O.S. No. 45 of 2008 on the file of the Court of the Subordinate Judge of Koyilandy challenges in this Writ Petition the order dated 12th December, 2008 in I.A. No. 1548 of 2008, by which the trial court allowed the application for amendment of the plaint filed by the respondent.
2. The respondent filed the suit for specific performance of an agreement to sell the plaint schedule property. It is alleged in the plaint that the plaintiff and the defendant entered into an agreement for sale on 25.4.2006 by which the defendant agreed to sell the plaint schedule property to the plaintiff on or before 30.6.2006. Advance of Rupees One lakh was paid. It is stated in the plaint that another sum of Rs. 13,000/- was paid to the defendant on 20.8.2006 and a further sum of Rs. 10,000/- was paid in February, 2007.
3. In paragraphs 7 and 8 of the plaint, the plaintiff made the following averments :-
"7. The plaint schedule property is a rubber plantation and plaintiff had agreed to purchase it expecting a periodical income during his retirement life. The defendant had permitted plaintiff to tap rubber from the plaint schedule property as per the agreement in anticipation of execution of sale on 30.06.2006. Accordingly the plaintiff was taping rubber from the property. The plaintiff advanced another sum of Rs. 23,000/- to the defendant after the agreement and continued to tap rubber even after the stipulated period. Now the defendant is threatening the plaintiff to interfere in these taping activities with ulterior motive of rescinding from the contract.
8. It is respectfully submitted that the defendant had transferred the possession of the plaint property at the time of the agreement and plaintiff is entitled to remain in possession under Section 53A of the Transfer of Property Act. The plaintiff therefore prays that he may be granted a decree of specific performance on paying of balance amount of Rs. 47,000/- as above mentioned. Plaintiff is also seeking the relief of injunction against dispossession from the property."
4. Reliefs A to C in the plaint are the following :-
"A. Directing the defendant to specifically perform the agreement for sale dated 25.04.2006 and to execute a deed of sale in respect of the property described in the schedule of plaint on payment of balance of Rs. 47,000/-.
B. Restraining the defendant and his men by means of a prohibitory injunction from dispossessing the plaintiff from the plaint property.
C. Alternately directing the defendant to return the sum of Rs. 1,23,000/- as an ancillary relief;"
5. In the written statement, the defendant specifically denied the contention of the plaintiff that he was put in possession of the property. The defendant also stated that the plaintiff was not permitted to tap the rubber trees.
6. The plaintiff filed I.A.No.512 of 2008 for temporary injunction restraining the defendant from obstructing the plaintiff or his workers from tapping the rubber trees. The defendant also filed an application for temporary injunction (I.A.No.661 of 2008) restraining the plaintiff from trespassing upon the plaint schedule property. The trial court disposed of these applications by a common order dated 25th June, 2008; the application filed by the plaintiff was dismissed and the application filed by the defendant was allowed.
7. Thereafter, the plaintiff filed I.A.No.1548 of 2008 for amendment of the plaint. In the affidavit accompanying the application for amendment of plaint, the plaintiff averred thus:-
"4. The defendant had filed an application of temporary injunction before the Hon'ble Court against this plaintiff as I.A.No.661/08 to restrain the plaintiff from tapping rubber, on the plea that he is in possession and that he is entitled to continue tapping. The application were jointly considered by the Hon'ble Court as per order dated 25.6.2008 by which the application for injunction by plaintiff was disallowed and that of defendant were allowed. Under the ci
