Plaintiff sought specific performance and amendment of plaint to depict suit land as Khasra No.10/1 after partition. Trial court dismissed the amendment; the High Court held the amendment would impair defendants' defence that plaintiff had notice of partition, and dismissed the revision.
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2024:HHC:8208
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Civil Revision No.61 of 2024 Decided on: 5th September, 2024.
_________________________________________________________________ M/s Farm Estate Exotic Homes Pvt. Ltd. ....Petitioner Versus Leela Dutt & Anr. …Respondents ________________________________________________________________ Coram_
Ms. Justice Jyotsna Rewal Dua,
lWhether approved for reporting?
_________________________________________________________________ For the petitioner: Mr. Anirudh Sharma, Advocate. For the respondents: Mr. Mukesh Sharma and Mr. Ankit Kaloti, Advocates.
Jyotsna Rewal Dua, Judge
Petitioner was the plaintiff before the learned Trial Court. Its application moved under Order 6 Rule 17 read with Section 151 of Code of Civil Procedure (CPC in short), seeking amendment in the plaint was dismissed by the learned Trial Court on 16.01.2024. Feeling aggrieved, the plaintiff has assailed the aforesaid order.
The parties hereinafter shall be referred to according to their status before the learned Trial Court.
l Whether reporters of Local Papers may be allowed to see the judgment?
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2. Civil suit was instituted on 26.04.2022 by the petitioner-plaintiff against the respondents-defendants seeking Specific Performance of the Contract dated 06.07.1989 (sic 15.07.2021). Respondents-defendants filed their written statement on 09.01.2022. Noticing the defence, the petitioner-plaintiff moved an application under Order 6 Rule 17 Read with Section 151 CPC. The petitioner-plaintiff’s contention in the amendment application was that: -
2(i) Under the agreement to sell dated 15.07.2021, it was, inter-alia , agreed between the plaintiff and the defendants that the plaintiff would apply to the State Government seeking permission under Section 118 of the H.P. Tenancy and Land Reforms Act, 1972 (the Act in short) for purchase of the suit property; Such permission was to be obtained by the plaintiff after carving out a specific Tatima of the suit land. Defendants did not carve out Tatima of the
suit land despite repeated requests of the plaintiff; The defendants had not informed the plaintiff about any division of the land.
2(ii) It was only from the written statement filed by the defendants, the plaintiff noticed that a Tatima had indeed
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been carved out of the suit land. For the aforesaid reason, the plaintiff could not describe in the plaint that the suit land, after carving out of Tatima, was denoted by Khasra No. 10/1. The amendment, therefore, was necessitated to incorporate the suit land’s depiction by way of Khasra No. 10/1.
2(iii) Defendants opposed the application by submitting
that partition of land was effected during the month of October 2021. In terms of the partition, defendants were allotted Khasra No 10/1. Mutation No. 31 in this regard was sanctioned and attested in faovur of the defendants on 28.10.2021. The plaintiff had knowledge about the partition of the land as the defendants had sent a legal notice to the plaintiff on 23.02.2022, clearly pointing out that the partition had taken place and the land comprised in Khasra No. 10/1 had been allotted to the defendants. Despite this knowledge, the plaintiff did not obtain requisite permission under Section 118 of the Act.
Defendants also pleaded that in terms of agreement dated 15.07.2021, sale deed was to be executed and registered after obtaining permission under Section of the Act. The permission was to be applied by the plaintiff
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after carving of the Tatima. Sale deed was to be executed and registered within six months i.e. 15.01.2022. After attestation of the mutation, defendants had brought the factum of partition of land and allotment of Khasra No.10/1 and carving of Tatima in their favour to the plaintiff in terms of legal notice dated 23.02.2022. Despite this, the plaintiff did not discharge its obligations under the agreement wherein time was essence of the agreement, hence, prayer was made for dismissing the application.
On considering the submissions of the learned counsel for the parties, learned Trial Court vide order dated 16.01.2024, dismissed the application to the extent the plaintiff had prayed for denoting the suit land by way of Khasra No.10/1 and allowed it for correcting date of the agreement as 15.07.2021 instead of 06.07.1989 as typed out in the plaint.
3. Learned counsel for the petitioner-plaintiff submitted that amendment sought for was only clarificatory in nature and it would not have changed the nature of the suit at all, hence, it ought to have been allowed.
Learned counsel for the respondents-defendants
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defended the impugned order and submitted that prayer for amendment would cause great injustice to the defendants as their pleaded defence would be materially affected.
4. Having heard learned counsel on both sides and
on considering the case record, I am of the considered view that no interference is required in the impugned order. This is for the following reasons: -
4(i) Civil suit was instituted by the plaintiff seeking specific performance of the agreement dated 15.07.2021. It is the admitted case of both the parties that said agreement contained recital of procuring permission by the plaintiff under Section 118 of the Act after carving out of Tatima in favour of the respondents-defendants. According to the defendants, sale deed was to be executed and registered within six months i.e. by 15.01.2022.
4(ii) In the plaint, the plaintiff pleaded that defendants had not informed it about the partition having been carried out of the suit land or that any Tatima had been carved of the suit land. It is plaintiff’s case that for this reason, the plaintiff did not apply for permission of the State Government under Section 118 of the Act.
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4(iii) Not only above, even in the application seeking amendment of the plaint, plaintiff had specifically taken the plea that prior to the filing of the written statement, defendants had never intimated it about carving out of Tatima in any manner, which was required for applying for permission under Section 118 of the Act.
4(iv) As against above, the defence taken was that partition of the suit land had been carried out during the month of October 2021. Mutation No.31 was attested on 28.10.2022 in favour of the defendants in respect of Khasra No.10/1. The defendants have specifically pleaded that they had sent a legal notice dated 23.02.2022 to the plaintiff intimating about partition of the land and allotment of Khasra no.10/1 to them during partition. According to the defendants, time was the essence of the agreement and plaintiff failed to perform his part of the agreement, therefore, suit is not maintainable.
4(v) Plaintiff seeks to incorporate following
amendments in the plaint: -
“which later on separated by the defendants from the above land vide Khasra No.10/1 measuring 0-13-19 bighas, Khata/Khatauni No. 48/37 through mutation No.31 dated 28.10.2021”
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“which later on has been separated by the defendants from the above land vide Khasra No.10/1 measuring 0- 13-19 bighas, Khata/Khatauni No. 48/37” through mutation No.31 dated 28.10.2021”
4(vi) In view of the defence, learned Trial Court
correctly observed in the impugned order that there were wrong averments made, not only in the plaint, but also in the application moved by the plaintiff under Order 6 Rule 17 CPC that the defendants had neither carved out Tatima nor had intimated it about partition of the land. The application for amendment moved by the plaintiff on the face of it though appears to be innocuous inasmuch as prayer has been made
for depicting the suit land by Khasra No.10/1, however, the fact remains that allowing of this amendment would cause material impairment to the defence of the defendants. As per the stand taken by the defendants, plaintiff had been timely intimated about the partition and carving out of Tatima but took no steps in furtherance of the agreement to sell viz applying for permission under Section 118 of the Act for execution and registration of the sale deed. Defendants have stressed that time was the essence of the agreement. The amendment, in the given facts, cannot be said to be mere
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clarificatory in nature.
4(vii) In Ganesh Prasad Vs. Rajeshwar Prasad and
others1 , Hon’ble Apex Court held that plaintiffs and defendants are entitled to amend the plaint, written statement or file an additional written statement. This is, however, subject to an exception that by proposed amendment, the opposite party should not be subjected to injustice and that any admission made in favour of the other party is not withdrawn. All amendments of the pleadings should be allowed liberally which are necessary for determination of the real controversies in the suit provided that the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings.
5. For the forgoing reasons, no interference is called for with the impugned order dated 16.01.2024, passed by the learned Trial Court. Accordingly, the present petition is
1 (2023) 2 CurCC (SC) 275
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dismissed.
Pending miscellaneous application(s), if any, also
to stand disposed of.
Jyotsna Rewal Dua Judge
September 5, 2024 R.Atal
1 issue framed by the court
Whether the trial court erred in dismissing the plaintiff's application under Order 6 Rule 17 CPC to amend the plaint to describe the suit land by Khasra No.10/1.
Colour shows how this judgement treated each authority
Ganesh Prasad Vs. Rajeshwar Prasad and othersRelied on¶4
(2023) 2 CurCC (SC) 275
3 provisions across 2 enactments
M/s Farm Estate Exotic Homes Pvt. Ltd.
Leela Dutt
Anr.
Jyotsna Rewal Dua
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
