Back
1999 Supreme(P&H) 1311
PUNJAB & HARYANA HIGH COURT
R.L.Anand, J.
Shahab-ud-din
Versus
Radhey Shyam Bansal And Ors.
Second Appeal Order No. 75 of 1987,
Decided On : OCTOBER 29, 1999
A plaintiff can claim specific performance of a lesser share of the property than agreed upon, even if the defendant was not authorized to sell the entire share, subject to the conditions set out in Section 12 of the Specific Relief Act.
Headnote:
SPECIFIC PERFORMANCE - AMENDMENT OF PLAINT - ORDER 6 RULE 17, CPC - COURT'S POWER TO ALLOW AMENDMENT - LIMITATION - VALUABLE RIGHT OF SUBSEQUENT VENDEE - READINESS AND WILLINGNESS TO PERFORM CONTRACT - ALTERNATIVE RELIEF - SPECIFIC RELIEF ACT, SECTION 12.
Fact of the Case:
Plaintiffs filed a suit for specific performance of an agreement to sell against defendants, including subsequent vendee Shahab-Ud-Din. The trial court dismissed the suit, finding that the defendant No. 7, who executed the agreement on behalf of the other defendants, was not authorized to do so. The plaintiffs appealed, and during the pendency of the appeal, they filed an application under Order 6 Rule 17, CPC, seeking to amend the plaint to claim specific performance of a lesser share of the property, in case the court found that the defendant No. 7 was not authorized to sell the entire share. The first appellate court allowed the amendment and remanded the case to the trial court for a fresh decision. Shahab-Ud-Din challenged the order of the first appellate court.
Finding of the Court:
The High Court held that the first appellate court was justified in allowing the amendment of the plaint under Order 6 Rule 17, CPC. The court found that the amendment did not change the cause of action and did not take away any valuable right of the subsequent vendee. The court also held that the plaintiffs were entitled to claim specific performance of a lesser share of the property, even if the defendant No. 7 was not authorized to sell the entire share, under Section 12 of the Specific Relief Act.
Issues: 1. Whether the first appellate court was justified in allowing the amendment of the plaint under Order 6 Rule 17, CPC? 2. Whether the plaintiffs were entitled to claim specific performance of a lesser share of the property, even if the defendant No. 7 was not authorized to sell the entire share?
Ratio Decidendi: 1. The court held that the first appellate court was justified in allowing the amendment of the plaint under Order 6 Rule 17, CPC, because: a. The amendment did not change the cause of action. b. The amendment did not take away any valuable right of the subsequent vendee. c. The plaintiffs were entitled to claim specific performance of a lesser share of the property, even if the defendant No. 7 was not authorized to sell the entire share, under Section 12 of the Specific Relief Act. 2. The court held that the plaintiffs were entitled to claim specific performance of a lesser share of the property, even if the defendant No. 7 was not authorized to sell the entire share, because: a. Section 12 of the Specific Relief Act allows a plaintiff to claim specific performance of a lesser share of the property than agreed upon, subject to certain conditions. b. The plaintiffs had fulfilled the conditions set out in Section 12 of the Specific Relief Act.
Final Decision: The High Court partly allowed the appeal, modified the judgment of the first appellate court, and directed the first appellate court to re-admit the appeal and decide it afresh after considering the amended plaint and any additional issues that may be framed.
R.L.Anand, J.
1. Shahab-Ud-din son of Bashir-Ud-Din, who was defendant No.8 in the trial Court and who is a subsequent vendee, has filed the present S.A.O. and it has been directed against the judgment dated 11.11.1987 passed by the Additional District Judge, Faridabad, who after allowing the application Under Order 6 Rule 17, CPC, of the plaintiffs Radhey Shyam Bansal and Jagan Nath Bansal, allowed the appeal and set aside the judgment and decree of the trial Court and remanded the case with the following directions.
"..... so, the judgment and decree passed by the learned lower Court shall have to be set aside and it is done accordingly. On filing amended plaint a copy shall be given to respondent-defendants. They shall have to be asked to file written statement to amended plaint, some new averments shall come into light which would give birth to new issues and leading of fresh evidence and thereafter re-decision of the whole of the matter in controversy as a fresh. In these circumstances, it has become essential for the undersigned to remand the case to the learned lower Court which is, Court of learned Senior Sub Judge, Faridabad, with the direction to accept the amended plaint, afford an opportunity to respondent-defendant to file written statement, construct new issues, if arise out of the amendment of pleadings, afford an opportunity to lead evidence to both the parties and after hearing both the parties again to write a fresh judgment and dispose of the controversy between the parties."
2. Some facts of the case can be noticed in the following manner:-
3. Radhey Shyam and Jagan Math Bansal were the plaintiffs before the trial Court and they filed a suit for specific performance and agreement for sale and for permanent injunction against the defendants, including the present appellant Shahab-Ud-Din. It was alleged by the plaintiffs that they had entered into an agreement of purchase. The plaintiffs alleged that the land measuring 12 Kanal 7 marlas situated on 13/1 Mathura Road, Faridabad, forming part of killa No.50/6 and 51/10 originally belonged to Kailash Chander and Ramesh Chander jointly and they owned the property in equal shares as shown in the plan attached with the plaint by words ADEH. Kailash and Ramesh sold 1/2 share of the property to Radhey Shyam Bansal, plaintiff, through a registered sale deed dated 14.8.1968. This property is marked CDE and is shown in green colour in the plan attached. Thereafter, a partition in respect of the half property took place between Kailash and Ramesh Chander. Half of the remaining property measuring 3 kanals 1-3/4 marlas fell in the share of Kailash and half measuring 3 kanals 1-3/4 marlas fell in the share of Kailash and half measuring 3 kanals 1-3/4 fell in the share of Ramesh. The portion which fell to the share of Kailash is marked ABGH while the portion marked CDEF shown in green colour was transferred to Radhey Shyam Bansal. Kailash son of Mela sold the property measuring 3 kanals 13/4 forming part of killa No.50/6 and 51/10 marked ABGH, shown in blue colour, to Jagan Nath vide sale deed dated 30.12.1969. Jagan Nath is real brother of Radhey Shyam and Raj Kumar is real first cousin of Jagan Nath and Radhey Shyam. The, remaining portion of the property 1-3/1, Mathura Road, forming part of killa No. 50/6 and 51/10 measuring 3 kanals 13/4 fell to the share of Ramesh Chander son of Mela Ram which is a disputed one. This property has been shown with the words BCFG in red colour in the plan.
4. The case of the prosecution further proceeds that the defendants No. 1 to 7 through their attorney K.C. Chandiok entered into an agreement to sell with the plaintiffs for a consideration of Rs.8,000/- and received a sum of Rs.5,000/- towards part payment of the price and the balance amount of Rs.3,000/- was to be paid at the time of registration to defendant No. 1 to 7 in the presence of the Sub-Registrar. Ramesh Chander died on 2.12.1970, The property was inherited by defenda
