JUDGMENT

Mr. Arun Monga, J. (Oral)

CM-8814-CII-2023

Application is allowed, as prayed for, subject to all just exceptions.

Main case

Present revision petition is to set aside impugned order dated 16.01.2023 (Annexure P-1) whereby application filed by plaintiff/respondent No.1 under Order 6, Rule 17 read with section 151 CPC for amendment in plaint, was allowed and another order dated 05.04.2023 (Annexure P-5) passed by learned Civil Judge (Junior Division), Kharar, vide which application filed by defendants No.1 and 2/petitioners jointly and defendant No.3 separately for setting aside the ex parte order passed against them on 16.01.2023, was dismissed in Civil Suit bearing No.CS/414/2016 registered on 04.07.2016 (Annexure P-6) filed by respondent No.1 herein in which next date of hearing is fixed as 16.05.2023 for ex parte arguments.

2. Learned counsel for petitioners submits that respondent No.1 filed a suit for mandatory injunction directing petitioners to execute the sale deed as per agreement to sell dated 01.08.2014 qua the suit property. Upon notice, petitioners appeared and moved an application dated 27.09.2016 under Order 7, Rule 11 for rejection of plaint. Thereafter respondent No.1 moved an application for amendment of plaint to incorporate the plea of specific performance and alternative suit for recovery. The application was allowed and petitioners were proceeded ex parte and matter was adjourned for ex parte evidence of plaintiff/respondent No.1 herein. Thereafter, petitioners filed application to set aside the ex parte order, which was dismissed vide impugned order dated 05.04.2023 (Annexure P-5).

3 Expounding his arguments, learned counsel would submit that impugned order has resulted into grave miscarriage of justice and for effective adjudication of the case, petitioners/defendants No.1 and 2 may be permitted to participate in the proceedings and file amended written statement in the interest of justice and equity.

4. Given the nature of order being passed, there is no necessity to issue notice to respondents, as no serious prejudice would be caused to them. Notice to respondents is thus dispensed with.

5. I have heard learned counsel for petitioners and perused the case file.

6. Order dated 16.01.2023 (Annexure P-1) assailed herein is premised inter alia on the following reasoning:

16. From the pleadings of the application it is transpired that the plaintiff wants to convert the suit for mandatory injunction into suit for specific performance.

17. Perusal of the pleadings mentioned by the plaintiff in his plaint shows that he has prayed that a decree for possession by way of specific performance of agreement of sale dated 01.08.2014 be passed in his favour. It further shows that he has mentioned all the circumstances in which the agreement of sale dated 01.08.2014 was executed and has also pleaded that he has always remained ready and willing to perform his part of agreement and even now he is ready and willing to perform his part of agreement but defendants No.1 and 2 were never ready and willing to perform their part of agreement of sale dated 01.08.2014Thus, in the present case in pith and substance, the plaintiff is seeking for specific performance by way of agreement of sale dated 01.08.2014 from the defendants.

18. Perusal of the file further shows that the suit is at its initial stage and no issues in this case has been framed so far.

19. Order 6, Rule 17 CPC envisaged that Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in c