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2009 Supreme(P&H) 1262
PUNJAB & HARYANA HIGH COURT
Vinod K.Sharma, J.
M/s. Hindustan Petroleum Corporation Ltd.
Versus
Kaintal Auto Enterprises
C.R. No. 4203 of 2009,
Decided On : JULY 29, 2009
The main legal point established in the judgment is that by way of amendment, a new cause of action cannot be substituted for the old one, especially when two agreements are sought to be enforced.
Headnote:
Amendment - Specific Performance Suit - Code of Civil Procedure - Order 39 Rules 1 and 2 - Article 227 of the Constitution of India - [Order 6 Rule 17, Article 227 of the Constitution of India]
Fact of the Case:
The plaintiff filed a suit for specific performance of a memorandum of agreement. An application for amendment of the suit to include a subsequent agreement was dismissed by the trial court and the decision was upheld by the appellate court.
Finding of the Court:
The court found that the amendment sought to substitute a new cause of action and was not bona fide, as it was an attempt to fill in a lacuna. The court held that the findings of the trial court were based on established principles of law and did not warrant interference.
Issues: The main issue was whether the amendment of the suit to include a subsequent agreement was permissible under the law.
Ratio Decidendi: The court held that by way of amendment, a new cause of action cannot be substituted for the old one, especially when two agreements are sought to be enforced. The court also noted that the application for amendment was not bona fide.
Final Decision: The court dismissed the application for amendment, upholding the decision of the trial court.
Vinod K.Sharma, J.
1. C.M. No.17295-CII of 2009 This application has been filed under section 151 of the Code of Civil Procedure for exemption from filing the certified copies of Annexures. For the reasons stated in the application, the prayer is granted. CR No.4203 of 2009 CM stands allowed. M/s. Hindustan Petroleum Corporation Ltd./petitioner has invoked the jurisdiction of this court under Article 227 of the Constitution of India to challenge the order dated 15.6.2009 passed by the learned Civil Judge (Senior Division), Patiala dismissing an application moved under Order 6 Rule 17 of the Code of Civil Procedure (for short the Code) for the amendment of the plaint.
2. The plaintiff/petitioner filed a suit for specific performance of memorandum of agreement dated 2.1.1976, with regard to the land measuring 1600 square yards i.e. 1 Bigha 12 biswas forming part of Khewat No..721/712 Khatuni No.1761/1681 Khasra No.687/543 Min (10-5) to the extent of 1 Bigha 12 Biswas i.e. 1600 sq. yards situated within the revenue estate of Badungar as per jamabandi for the year 2003-04.
3. Along with the suit an application under Order 39 Rules 1 and 2 of the Code, was also moved which was ordered to be dismissed by the learned trial court. The order was affirmed by the learned lower appellate court.
4. The petitioner challenged the said order by filing Civil Revision No.789 of 2009. Said revision was dismissed on 12.2.2009. It was observed by this court that injunction could not be granted in respect of the property which was yet not included in the suit.
5. A stand was taken before this court that the application had been moved before the learned trial court for amendment of suit. The order was passed on 12.2.2009 by this court. After the dismissal of revision, application was moved for the amendment of the suit, to plead the enforcement of agreement dated 1.3.2004 said to be on the same terms and between the same parties. Learned trial court has been pleased to dismiss the application by recording an order, the operative part of which reads as under :-
"12. If the order in Civil Revision No.789 of 2009 is seen it is clearly recorded that "memorandum of understanding dated 2.1.1976 was mistakenly given, in the notice served by the defendant to the plaintiff expressing an intention to close the business. The learned counsel for the plaintiff admits his mistake in plaint and states that he has moved an application before the trial court for amendment." It has been directed by the Honble High Court that if any application is pending for amendment, he will have such remedy as it is possible before the very same authority where the application is pending. If any application is moved before the trial court, it shall duly consider the application and pass appropriate order expeditiously. This order is dated 12.2.2009 and the plaintiff moved the present application for amendment on 9.3.2009 well beyond the date 12.2.2009. If this is so, learned counsel for the plaintiff has not shown the real picture before the Honble High Court. If the application for amendment is seen plaintiff want to substitute agreement dated 1.3.2004 with agreement dated 2.1.1976 and it will change the entire nature of the present suit because earlier the plaintiff seeks specific performance of agreement dated 2.1.1976 and now he wants to include agreement dated 1.3.2004 also and it has no where pleaded by the plaintiff that despite due diligence agreement dated 1.3.2004 cannot be pleaded. If this agreement was within the knowledge of plaintiff they could have filed the suit there and then. The authorities cited by the learned counsel for the plaintiff are not applicable to the facts and circumstances of present case, rather plaintiff wants to change the nature of present suit by substituting agreement dated 1.3.2004 with earlier agreement dated 2.1.1976, question of limitation also arise and the amendment as such will be detrimental to the rights of defendant who is ol
