An amendment to a plaint that totally changes the nature of the suit, is sought after the completion of evidence without showing due diligence, and seeks to withdraw a previous relinquishment of a right, cannot be allowed under Order 6 Rule 17 CPC.

ORDER

The present petition has been filed challenging the order passed by the trial Court dated 26.10.2024, whereby the trial Court has allowed the application for amendment in the plaint filed by the plaintiff.

The necessary facts for the purpose of disposal of present petition are that initially a suit had been filed in the year 2014 by the plaintiff on the basis of an agreement to sale dated 16.05.2013 on the ground that the consideration contained in the agreement was Rs.14.35 lakhs out of which 4.05 lakhs had been paid in advance but the defendant No.1 was not willing to execute the sale deed and later on it came to notice of the plaintiff that the agreement is for 1408 sq.ft. of land whereas the title of the defendant No.1 is only on 872 sq.ft. of land and there is 536 sq.ft. of land which is not available with the defendant No.1 and therefore now the plaintiff is suing for recovery of double of the amount of advance, i.e. Rs.8.10 lakhs as against advance of Rs. 4.05 lakhs.

The suit was filed in the year 2014 and it proceeded thereafter. In the intervening time, an application was filed for impleading the defendant No. 2 who is husband of defendant No.1, on the ground that part of consideration was paid to defendant No.2 being husband of defendant No.1 and since he has received part of consideration therefore for recovery of the amount he is also necessary party. This application for impleadement was allowed by the trial Court and the present petitioners had approached this court in MP No. 2514 of 2022 which was allowed by this Court noting that though it is a suit for performance of contract but the suit has been not filed for specific performance with prayer for execution of sale deed, but only relief of refund of advance consideration amount in double has been claimed and therefore, the implement of the person who has actually received part of the advance amount can be permitted.

After this Court had decided the miscellaneous petition upholding the impleadment of husband of defendant No.1 then an application for amendment in the plaint was filed by the plaintiff on 24.08.2024 seeking to insert the relief of specific performance of contract by execution of sale deed and delivery of possession. She also expressed her readiness and willingness to get the sale deed executed.

The learned counsel for the petitioner has argued that the said amendment totally changes the nature of the suit and it amounts to rescinding of a concession or relinquishment made in favour of the defendant No.1 by the plaintiff in as much as the plaintiff had voluntarily relinquished a right to get the contract specifically performed by execution of sale deed and therefore in terms of Order 2 rule 2 CPC and also on the principle of estoppel, the plaintiff cannot now seek amendment in the plaintiff to the extent of now seeking execution of sale deed and the relief to that effect is also barred by limitation as the agreement is of the year 2013 and admittedly the suit is pending since the year 2014 and amendment has been brought in the year 2024 after close of plaintiff evidence.

Per contra, it is contended by counsel for the respondent-plaintiff that the plaintiff had already sued for specific performance though the nature of relief sought was different and now the nature of relief sought is being modified, but the intention to get the contract specifically performed was already there and therefore the question of limitation would not arise. Otherwise also the order is perfectly valid and in accordance with law.

Upon hearing the counsel for the rival parties and on the perusal of the record it is seen that though the suit has been filed in the year 2014 but the plaintiff consciously did not seek the relief of execution of sale deed in performance of the agreement and on the contrary in paragraph 6 of the plaint had made a specific pleading that the total land available with the defendant No.1 is only 872 Sq. ft. and the agre