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2012(3) LAW HERALD (P&H) 2119
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rajesh Bindal
Civil Revision No. 6112 of 2007 (O&M)
Madan Lal
v.
S.L. Maloo & Ors.
{Decided on 20/03/2012}
(B) Civil Procedure Code, 1908, O.6 R.17--Amendment of Written Statement--Counter Claim--Limitation--Question of limitation would be relevant to be considered where a counter-claim is sought to be filed belatedly after the written statement had already been filed and the amendment thereof is sought for the purpose--In case a fresh suit for the relief sought to be claimed by way of counter-claim is time-barred, the amendment should be declined. (Para 13)
(C) Civil Procedure Code, 1908, O.6 R.17--Amendment of Written Statement--Counter-claim has the same effect as a cross suit--Counter-claim can be filed even after filing of the written statement provided that such counter-claim is within the period of limitation. (Para 16)
(D) Civil Procedure Code, 1908, O.6 R.17--Amendment of Written Statement--Factors to be considered discussed.
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and
(6) as a general rule, the court should decline amendments if a fresh suit on the amendment claims would be barred by limitation on the date of application. (Para 15)
(E) Civil Procedure Code, 1908, O.6 R.17--Amendment of Written Statement--Specific Performance--Agreement to sell--In the absence of being a party to the litigation, a suit filed by any person claiming that a decree for specific performance of agreement to sell, executed between two different parties, be passed in favour of the plaintiff in a suit, he being a nominee of the vendee, without the vendee in the agreement to sell being a party in the suit, will not be maintainable--Specific Relief Act, 1963, S.16.
It will not be the statement of a person, who claims to be a nominee of the vendee in the agreement to sell, which is relevant factor, rather, it is the stand of the vendee in the agreement to sell, which is material--He being not a party, counter-claim seeking that relief will not be maintainable as it is nothing else but a suit which has to be tried independently. (Para 19)
Mr. Rajesh Bindal J.: - This order will dispose of three petitions bearing Civil Revision Nos. 6112, 6113 and 6114 of 2007, as common questions of law and facts are involved.
2. The facts have been extracted from Civil Revision No. 6112 of 2007.
3. Challenge in the present petition is to the order dated 17.11.2007, passed by Civil Judge (Junior Division), Gurgaon, whereby the application for amendment of the written statement has been allowed, inter-alia, while permitting the defendants-respondents No. 1 and 2 to add counter-claim in the written statement already filed.
4. The proceedings arise out of a suit filed by the predecessor-ininterest of the petitioner and respondents No. 3 to 10 for cancellation of sale deed dated 4.4.2000 got registered by respondent No. 1, as alleged attorney of deceased-Badle, in favour of respondent No. 2. The suit was filed on 29.3.2003 in which written statement was filed by respondents No. 1 and 2 on 16.9.2004. After the plaintiffs closed their evidence on 30.10.2007, application for amendment of the written statement to add counter-claim was filed on 3.10.2007 seeking to add the relief of specific performance of agreement to sell dated 5.5.1999. After the plaintiffs filed reply to the application, another application was filed on 7.11.2007 for amendment of the application for amendment of the written statement seeking to add relief of permanent injunction as well for protecting possession of the property. Both the applications having been allowed by the learned court below vide impugned order, the petitioner is before this court.
5. Learned counsel for the petitioner submitted that application for amendment of the written statement could not have been allowed after the trial in the present case had commenced. In fact, it was filed not even after framing of the issues but after the plaintiffs had already closed their evidence. It is not claimed that the plea sought to be raised now was not available to the defendants at the time of filing of written statement initially. In support of the submission, reliance was placed upon Ajendraprasadji N. Pande and another v. Swami Keshavprakeshdasji N. and others, 2007(1) RCR (Civil) 481. He further submitted that by filing counter-claim in the amended written statement, relief of specific performance of agreement to sell dated 5.5.1999 is sought. In fact, it was an agreement executed between Badle and Lunar Diamonds Ltd. None of the contesting defendants are parties to the aforesaid agreement to sell. Lunar Diamonds Ltd. is not even a party in the suit. It is sought to be claimed that the sale deed be registered in favour of defendant No. 2 as nominee of Lunar Diamonds Ltd. He further submitted that the counter claim is nothing else but an independent suit. A claim for specific performance of agreement to sell filed in court on 3.10.2007 on the basis of an agreement to sell dated 5.5.1999 would be highly belated. He further submitted that sale deed for the property situated at Gurgaon was registered at Mumbai. In support of the arguments, reliance was placed upon T.L. Muddukrishana v. Smt. Lalitha Ramchandra Rao, 1997(2) RCR (Civil) 154; Rakesh Ahuja and another v. Jagan Nath, 2004(3) RCR (Civil) 707 and State Bank of Hyderabad v. Town Municipal Council, 2007(1) RCR (Civil) 415.
6. On the other hand, learned counsel for respondents No. 1 and 2 submitted that the suit filed by the predecessor of the petitioner and respondents No. 3 to 10 is clearly malafide. In fact, a perusal of the agreement to sell shows that he had received the entire sale consideration and had even handed over possession of the property to the vendee. The vendee was at liberty to get the sale deed executed in his favour or any of his nominee. It was in terms thereof that the sale deed was registered in favour of defendant No. 2. After the entire sale consideration was paid to the vendor, namely, deceased-Badle, he had executed a power of attorney in favour of defendant No. 1
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