IMPORTANT POINT
Amendment of pleadings--Court shall be more lenient in the matter of a written statement filed by a defendant than a plaintiffs plaint.

K.Kannan, J.

1. I. Scope :-

An application for amendment of written statement in a Suit for Specific Performance was allowed by the Courts below. The plaintiff is the revision petitioner before this Court. II. Facts giving rise to controversy :-

2 The Suit for Specific Performance had been filed to enforce an agreement dated 07.04.1998 under the terms of which the defendant had agreed to sell the property in Khasra No. 845 of an extent of 2 kanals and 19 marlas situated in village Daulatpur, Tehsil Pathankot. The execution of the agreement is an admitted fact. After the suit was instituted, defendant filed a written statement on 05.12.1998 and on the same date moved an application for direction to deposit the balance of sale consideration without prejudice to the contentions of the written statement. The written statement itself conceded the execution of the agreement but after disputing the plaintiffs readiness and willingness to perform his part of the contract, the defendant had stated that if the plaintiff would be prepared to act as per the terms of document and if the balance of the sale consideration had been paid he would be prepared to execute the sale deed. The Court, while disposing of the application filed under Section 151 CPC directed the amount to be deposited and adjourned the case to 05.02.1999. The plaintiff deposited the amount on 30.01.1999 and when the case was again heard on 05.02.1999 which had been fixed earlier, the defendant moved the application for amendment. By virtue of the amendment, the defendant projected a new case that the property had been mistakenly described as situated in Khasra No. 845, when what was contemplated to be sold was only the property in Khasra No. 844. He also took up a plea that he was not exclusively the owner of the property but there were other persons also who owned the same. It was his further contention that while the agreement had described the property in Khasra No. 845 to be land, as the matter of fact, there was a building constructed in the property where he had been living with his family. In effect, he was trying to resile from the earlier contention in the written statement and in the petition filed under Section 151 offering to act as per the terms of the agreement if the amount was deposited by the plaintiff. III. Disposition in Court below :-

3. The trial Court, on consideration of all the relevant facts and the decisions cited by the counsel of both sides observed that the issue regarding non-enforceability of the agreement and the so-called mistake as having crept into, with reference of the property, allowed the application stating that it would be always possible to explain whether the contentions of the defendant attempted to be introduced by the amendment of the pleadings was correct and not, only at the time of a full-fledged trial. IV. Contentions urged by counsel and purport of legal submissions :-

4. Learned counsel for the revision petitioner urges essentially that the agreement was very specific in terms and admitted of no ambiguity. The defendant himself had not pleaded that there was any difficulty about ascertaining the property and after having conceded the receipt of money for execution of sale deed, a plea which demolished the earlier admission could be permitted so as to defeat a valuable right accrued to the plaintiff to secure the relief on the basis of such admission.

5. The learned counsel on both sides have relied upon decisions of the Honble Supreme Court and other Courts in support of their respective contentions. The learned counsel appearing for the revision petitioner urges before me that the decision of the privy council in Ma Shive Miya v. Maung Mo Hnaung, AIR 1922 Privy Council 249. set the law in its perspective that an amendment could not be permitted to introduce a new case and take away the fact of admission. A three bench of Honble Supreme Court has settled the law emphatically in Modi Spinning & Weaving Mills Co.