An amendment can only be allowed if it is necessary for deciding the real controversy between the parties regarding the pending suit and not beyond that.

JUDGMENT :

Gurbir Singh, J.

1. Challenge in this revision petition, filed under Article 227 of the Constitution of India, is to the order dated 16.04.2022 (Annexure P-4), passed by learned Additional Civil Judge (Senior Division), Gurugram, whereby application moved by the plaintiff/petitioner, for amendment of the plaint, has been dismissed.

2. The brief facts, as culled out from the paper-book, are that respondent no.1/defendant no.1 entered into an agreement to sell dated 02.11.2017, of industrial premises along with construction thereon, as mentioned in the plaint. On coming to know that the suit property was not free from encumbrances and respondent no.1 owed a huge sum of money to UCO Bank, the petitioner filed a suit for – decree for mandatory injunction, directing respondent no.1 to obtain transfer permission from respondent no.2, to make payment of outstanding amount to respondent no.2 HSIDC, to make payment to UCO Bank, to get the premises in question released and redeemed from the Bank, with a further prayer that if respondent no.1 fails or refuses to make the required payments to HSIDC and UCO Bank, then the petitioner be allowed to make the total payments on behalf of respondent no.1. Further, a decree for permanent injunction restraining respondent no.2 from resuming the premises in question during pendency of the suit was also sought.

3. During pendency of the said suit, petitioner came to know that respondent no.1 had entered into compromise with UCO Bank and settled the matter by clearing the dues. ‘No Dues Certificate’ dated 10.04.2019 was also issued and lien of the property in dispute stood ceased. The petitioner moved an application under Order 1 Rule 10 CPC praying for striking out the names of UCO Bank and DC, Gurugram (respondents/defendants no.3 and 4 respectively) from the array of parties and also moved an application for amendment of plaint under Order VI Rule 17, read with Section 151 CPC, seeking relief of possession by way of Specific Performance of the Contract. The said application was partly allowed by the Court with regard to relief of striking off the names of respondents/defendants no.3 and 4 from the array of parties and relief regarding amendment in the pleadings was declined.

4. In the meanwhile, it came to the notice of the petitioner that respondent/defendant no.1 has alienated the suit property in favour of one Rakesh Yadav vide sale deed dated 21.09.2021 in order to defeat the claim of the petitioner and even did not obtain prior permission for such transfer from respondent no.2 HSIDC. So, an application under Order 6 Rule 17 CPC was moved for amendment of plaint seeking relief of declaration that the sale deed dated 21.09.2021 is illegal, null and void.

5. Learned counsel for the petitioner has argued that the impugned order dated 16.04.2022 is against the settled principles of law. The proposed amendment is necessary for determining the real controversy between the parties. The amendment sought is bona fide and would not change the nature of pleadings and relief sought in the suit. The original suit was based on rights arising out of the agreement to sell dated 02.11.2017 and it was the same agreement, which formed the basis of cause of action. Ultimately, the objective of the petitioner in filing the suit was to obtain the ownership and possession over the suit property.

6. It has further been argued by learned counsel for the petitioner that the Courts are required to decide the rights of the parties. The cause of action to file the suit for possession by way of specific performance arose only during pendency of the suit as the compromise between respondent no.1 and UCO Bank came into picture only during pendency of the suit. The agreement dated 04.05.2016, on which the learned Court below has relied, could be fictitious and illegal document and could have been created to defeat the rights of the petitioner. At the stage of allowing prayer for amendment, merits of the amendment sought t