ORDER

This petition is by the defendants in O.S.No.130/2011 on the file of the II Additional Senior Civil Judge and JMFC, Mandya (for short, ‘the civil Court’). The petitioner has impugned the civil Court’s order dated 19.03.2016, and the civil Court by this order has rejected the petitioner’s application [IA No.3] under Order VI Rule 17 of the Code of Civil Procedure 1908 [CPC]. The civil Court has rejected the petitioner’s application opining that the additional plea sought to be raised by way of amendment relates to a question of law and the same can be considered without pleadings in that regard as it is settled that the question of law need not be canvassed in pleadings.

2. The respondent’s suit in O.S.No.130/2011 is for specific performance of the Agreement of Sale dated 16.06.2009, and in the alternative, for a decree for refund of Rs.8,25,000/- along with interest at the rate of 18% per annum. The respondent contends that a sum of Rs.8,25,000/- is paid out of the total sale consideration of Rs.37,25,000/- in performance of the Agreement of Sale dated 16.06.2009. The petitioner has pleaded in the Written Statement that the agreement dated 16.06.2009 is executed for a total consideration of Rs.37,25,000/- subject to the condition that the respondent closes transaction within a period of six months and because the respondent did not close the transaction within six months, a supplement agreement is executed on 31.12.2009 with the petitioner agreeing to pay additional consideration of Rs.8,00,000/- with the assurance that sale transaction would be completed on or before 31.03.2010.

3. The petitioner after commencement of the respondent’s evidence with examination of PW.1 has filed the present application to amend the written statement. The petitioner, with the proposed amendment, proposes to contend that the original of the supplement agreement dated 31.12.2009 is with the respondent and he is deliberately withholding the same, and because the petitioner can demonstrate that the respondent has suppressed the material facts in not disclosing the supplementary agreement, relief of specific performance would be impermissible. The petitioner also wants to plead that because the originals of the supplementary agreement is deliberately withheld, he would be entitled to lead secondary evidence.

4. If the petitioner wants to plead that there is deliberate suppression of facts and because there is deliberate suppression of facts, the request for specific performance must be rejected, the pleadings in this regard would be in the realm of factual matrix, and would require specific pleadings. The civil Court has overlooked the salient circumstances in passing the impugned order, and this Court must opine that the civil Court’s conclusion that the amendment relates to law is wholly erroneous.

5. As such, the petition is allowed quashing the impugned order dated 19.03.2016 in O.S.No.130/2011 on the file of the II Additional Senior Civil Judge and JMFC, Mandya allowing the petitioner’s application for amendment and calling upon the petitioner to carry out the amendment within fifteen (15) days from the date of first appearance before the civil Court. The said fifteen days shall commence from the date of receipt of a certified copy of this order.