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2019 Supreme(All) 781
IN THE HIGH COURT OF ALLAHABAD
MANOJ KUMAR GUPTA, J.
Sushila Devi - Appellant
Versus
Deewan Chand and Another - Respondent
Matters Under Article 227 No. 6665 of 2017
Decided On : 17-07-2019
Advocate Appeared:
Salilendu Kumar Upadhyay, Adv., Jahar Singh (Kashyap), Adv., Shive Datta Yadav, Adv., Kunwar Bhadur Dixit, Adv.
The amendment to pleadings should be allowed to determine the real question in controversy between the parties, and new pleas should align with the petitioner's original case.
Headnote:
specific performance - Civil Procedure Code - Order 6 Rule 17 C.P.C. - Section 16 (c) of the Specific Performance Act - [Order 6 Rule 17 C.P.C., Section 16 (c) of the Specific Performance Act]
Fact of the Case:
The petitioner was sued for specific performance of an agreement to sell a property. The petitioner denied the existence of the agreement and later sought to amend the written statement to introduce new pleas regarding the sale deed executed during the pendency of the suit.
Finding of the Court:
The court found that the amendment sought by the petitioner was not necessary to determine the issues arising in the suit and that the trial court acted with material irregularities in allowing the amendment application. The court declined to interfere with the impugned order.
Issues: The issues included the admissibility of the amendment to the written statement, the timing of the amendment application, and the relevance of the new pleas to the issues in the suit.
Ratio Decidendi: The court held that the amendment sought was not necessary to determine the issues in the suit and that the new pleas sought to be introduced did not align with the petitioner's original case, leading to the dismissal of the petition.
Final Decision: The petition was dismissed.
JUDGMENT :
MANOJ KUMAR GUPTA, J.
1. The instant petition is directed against the order dated 27.09.2016 passed by the District Judge, Mainpuri in Civil Revision No. 77 of 2013. The revision has been allowed and the order passed by the trial court dated 26.09.2013 allowing application 79-ka-1 of defendant No.1 for amending the written statement has been set aside.
2. The first respondent instituted a suit bearing No. 49 of 2005 against the petitioner for specific performance of an agreement to sell dated 02.12.2003. According to the plaint assertions, the petitioner agreed to sell the suit property and accordingly entered into an agreement to sell dated 02.12.2003 whereunder the total sale consideration to be paid was Rs. 2,00,000/- out of which Rs. 95,000/- was paid as earnest money. It was also the case of the plaintiff that after execution of the agreement, a further sum of Rs. 1,00,000/- was paid to the petitioner against receipt dated 13.02.2004. Thus, according to the plaintiff, only Rs. 5,000/- remained unpaid. It seems that soon after gaining knowledge of the suit, the petitioner executed a sale deed dated 31.05.2005 of the suit property in favour of Shiv Pratap Singh, the second respondent. The petitioner filed written statement in the suit on 25.07.2005 wherein she took a stand that the alleged agreement is a sham document. No money was paid to her under the said agreement. There was also no agreement for sale of the property but the plaintiff by misrepresenting that the defendant has to be witness in some matter obtained her signature and thumb impressions. Thus, the very execution of the agreement for sale was denied. The petitioner filed an additional written statement dated 23.04.2007 in which she reiterated the stand taken in the original written statement that in fact there was no agreement as alleged.
3. The second respondent who purchased the property from the petitioner during pendency of the suit was impleaded as defendant No.2. He filed his written statement on 16.05.2007 reiterating the stand taken by the petitioner in her written statement that her signatures were obtained by misrepresentation and in fact there was no agreement for sale between the parties nor any money was paid to her under the said agreement.
4. After commencement of the trial, the petitioner filed an application seeking amendment in the written statement to incorporate a plea that she is ready to return money paid to her under the alleged agreement to the plaintiff. The amendment was rejected by the trial court by order dated 08.07.2013 and the matter was fixed for recording of the remaining evidence of the defendant. The order rejecting the amendment application dated 08.07.2013 was not challenged before any higher court. On the other hand, the petitioner filed another application dated 22.07.2013 once again seeking amendment in the written statement. This time, the plea sought to be introduced was that sale deed dated 31.05.2005 was executed by the petitioner in favour of defendant No.2 to secure a loan. It confers no right or interest in favour of defendant No.2. It was also alleged that while executing deed dated 31.05.2005, the petitioner had informed defendant No.2 about document dated 13.02.2004 in favour of the plaintiff. He was informed that it was executed to secure Rs. 1,95,000/- taken as loan from the plaintiff. It was also alleged that in pursuance of sale deed in favour of defendant No.2 possession has not been delivered to him and that Rs. 35,000/- had already been returned. She is ready to return the balance amount of Rs. 1,70,000/- to defendant No.2. The sale deed dated 31.05.2005 is void and hit by lispendens. The petitioner has no other house and consequently plaintiff is not entitled to decree of specific performance and the suit is barred by Section 16 (c) of the Specific Performance Act. The trial court allowed the amendment application by order dated 26.09.2013 and aggrieved whereby the plaintiff filed Civil Revision
