Allowed

Jagdish Chand (Deceased through legal Heirs) v. Datta Ram

Himachal Pradesh HC20 Jun 2017CMPMO/112/2016

Case brief

AI extract

What is this about?

The High Court bench of a single Judge allowed a compromise money petition quashing the Civil Judge's order permitting amendment of pleadings regarding advance receipt. The Court held no case was made out that the earnest money was ₹25,000 rather than ₹10,000 and directed the trial court to proceed on un-amended pleadings.

What did the court decide?

The impugned order allowing amendment was quashed and set aside; the trial judge was directed to proceed on un-amended pleadings.

Jagdish Chand (Deceased through legal Heirs) Vs… — Property and Title | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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CMPMO No. 112 of 2016. Date of decision: July 20, 2017.

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Jagdish Chand (since deceased) through LRs & anr.

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…...Petitioner.

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Versus

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Datta Ram. …..Respondent.

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Coram

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The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge. Whether approved for reporting?¹ No.

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For the petitioners : Mr. Ashwani Kaundal, Advocate. For the respondent : Mr. Dinesh Kumar, Advocate.

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Dharam Chand Chaudhary, J. (Oral)

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Heard.

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Order dated 21.12.2015 Annexure P-2 passed by learned Civil Judge (Junior Division), Solan in an application under Order 6 Rule 17 CPC registered as CMA No. 463/6 of 2015 in main case No. 37/1 of 2011, title Datta Ram versus Jagdish Chand and anr. is under challenge in this petition. Learned trial Judge has allowed the application and by way of amendment permitted the respondent-plaintiff to plead in the plaint that though a sum of `25,000/- was received in advance and it was

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1 Whether the reporters of the local papers may be allowed to see the Judgment? yes.

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revealed so in the agreement. However, on coming to know that the agreement executed initially was not bearing the signature of the executants at the time of seeking permission under Section 118 of H.P. Tenancy and Land Reforms Act and on account of some technical objection raised on the request of M/s S.M.S. Associates Private Limited, the original buyer, the seller, Jagdish Chand (since dead) had prepared another document/agreement in which the amount received in advance by the petitioners-defendants came to be mentioned as `10,000/- wrongly. The matter was heard for some time on 3.1.2017 when following order came to be passed:

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“Heard for sometime.

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The amendment as has been sought and granted is only to the limited extent that in agreement dated 8.12.2015, the defendant Jagdish Chand, petitioner herein, had admitted the receipt of Rs. 25,000/- towards part payment of the sale consideration i.e. Rs. 50,000/-. However, while submitting papers for seeking permission under Section 118 of the Land Revenue Act, he mentioned the amount received in advance as Rs. 10,000/-. On an enquiry from him by the Company M/S SMS Associates Private Limited, the predecessor-in-interest of the respondent/plaintiff, by way of writing allegedly reiterated the contents of the agreement dated 8.12.2015 and also

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admitted the receipt of Rs. 25,000/- in advance. That writing, however, is not available on record.

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Learned counsel representing the respondent/plaintiff seeks time for having instructions in this regard. Allowed. List on 8.3.2017.”

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Learned Counsel representing the respondent-plaintiff has produced the copy of agreement dated 8.12.2005 executed by deceased defendant Jagdish Chand with assignee of the respondent/petitioner i.e. M/S SMS Associates Private Limited in which the amount received in advance has been mentioned as `10,000/-.

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The copy of the agreement dated 8.12.2005 is Annexure P-1 to the petition, however, is not relevant for the purpose of present controversy being executed by said Jagdish Chand in favour of some other Company namely M/S Rogers World Wide Logistics Private Limited as well as pertains to some other land. The submissions made Mr. Dinesh Kumar, Advocate, learned Counsel that the agreement Ext.P1 not pertains to the suit land nor was it executed by deceased defendant Jagdish Chand in favour of M/S S.M.S. Associates Private Limited, therefore, carries substance. The fact, however, remains that as per the agreement produced by learned counsel representing the respondent-plaintiff also only a sum of `10,000/- was

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received in advance by deceased Jagdish Chand. The attested copy of this agreement has been taken on record.

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In view of the above, no case is made out that the earnest money as received by the petitioners-defendants was 25,000/- and not 10,000/-. Otherwise also, had it been so, such facts were required to be disclosed in the plaint and any such writing/agreement showing that `10,000/came to be incorporated therein at the time of seeking permission under Section 118 of the H.P. Tenancy and Land Reforms Act inadvertently or wrongly should have also been placed on the record of the suit at the time of its institution.

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It has been disputed that the agreement Ext.P1 was not with S.M.S. Associates and rather with some other company as according to Mr. Ashwani Kaundal, learned counsel representing the petitioners-defendants, M/S Rogers World Wide Logistics Company is none else but sister concern of M/S S.M.S. Company. Anyhow, this Court has not entered upon this controversy, particularly when this agreement does not pertain to the sale of the same land which is subject matter of dispute in the main suit. This aspect of the controversy can be taken care of by learned trial Court after affording the parties opportunity of being heard.

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In view of what has been said hereinabove, this petition is allowed. Consequently, the impugned order is

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quashed and set aside. Learned trial Judge to proceed further in the matter in accordance with un-amended pleadings of the parties. Pending application(s), if any, shall also stand disposed of.

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Parties through learned Counsel representing them are directed to appear before learned trial Court on 17.8.2017.

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(Dharam Chand Chaudhary), Judge.

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July 20, 2017, (vs)

Jagdish Chand (Deceased through legal Heirs) v. Datta Ram

Case brief

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What did the court decide?

Jagdish Chand (Deceased through legal Heirs) v. Datta Ram

Case brief

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What did the court decide?

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