Partly allowed

Balbir Kaur v. Devinder Kumar and Others

Punjab & Haryana HC19 Sept 2013CR/3217/2012

Case brief

AI extract

What is this about?

Holding that the trial court committed a jurisdictional error by treating a promissory note as 58 instead of 68 in the agreement, the High Court set aside that specific part of the order while leaving the amendment of the plaint intact for trial.

What did the court decide?

The direction in the impugned order regarding the causality of khasra nos. in the agreement to sell is set aside; the question of rectification shall be decided during trial.

Balbir Kaur Vs Devinder Kumar and Others — Specific Performance | Punjab & Haryana HC (2013)

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CR No.3217 of 2012 (O&M) -1-

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CR No.3217 of 2012 (O&M) Date of decision: 19.09.2013

Balbir Kaur

...Petitioner

Versus

Devinder Kumar & others

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...Respondents

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CORAM: HON'BLE MR.JUSTICE L. N. MITTAL

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Present: Mr. Raman Mohinder Sharma, Advocate, for the petitioner.

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Mr. Amit Jhanji, Advocate for respondents No.1 & 2.

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L.N. MITTAL, J. (Oral)

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In this revision petition filed under Article 227 of the Constitution of India by defendant No.1, challenge is to order dated 11.02.2012 Annexure P-5, passed by the trial Court, thereby allowing application Annexure P-3, filed by respondents No.1 & 2/plaintiffs for amendment of their plaint Annexure P-1.

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Plaintiffs have filed suit for specific performance of agreement to sell. Amendment of plaint has been sought to correct the date of the agreement as 14.12.2005 instead of 14.11.2005 mentioned in the plaint by clerical or typographical error. Besides it, amendment in description of the suit land relating to one of the three khasra numbers is also claimed. It is alleged that khasra No. 68 was wrongly mentioned in the agreement to sell as well as in receipt and also consequently in the

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Sumit Kumar 2013.09.20 14:44 I attest to the accuracy and integrity of this document

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CR No.3217 of 2012 (O&M) -2-

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plaint. The same is sought corrected as khasra No.58. By amendment of plaint, the plaintiffs also want to seek rectification of the agreement in this regard by adding paragraph 10-A in the plaint and by making necessary prayer.

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Defendants by filing reply Annexure P-4, opposed the amendment application and denied the averments made therein.

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Learned trial Court vide impugned order Annexure P-5, has allowed the amendment application.

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Feeling aggrieved, defendant No.1 has filed this revision petition to challenge the said order.

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I have heard counsel for the parties and perused the case file.

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Since amendment application was moved before commencement of trial, the same has been rightly allowed by the trial Court. However, counsel for the petitioner contended that last part of the impugned order is untenable. There is considerable merit in the contention. Operative part of the impugned order is reproduced as under:-

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“Consequently, the present application for amendment/correction of the plaint stands, allowed and the plaintiffs are directed to file amended plaint by mentioned the correct khasra number as well as the date of the agreement to sell, whereas the khasra number in the agreement cannot be changed at this stage and therefore, in the agreement to sell the khasra number is ordered to be read as 58 instead of 68.”

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Sumit Kumar 2013.09.20 14:44 I attest to the accuracy and integrity of this document

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CR No.3217 of 2012 (O&M) -3-

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Perusal of the aforesaid part of the impugned order reveals that last part thereof is self contradictory. The trial Court has observed that khasra number in the agreement cannot be changed at this stage and has also observed that in the agreement to sell, the khasra number is ordered to be read as 58 instead of 68. Apparently, last part of the order is completely untenable and suffers from illegality and jurisdictional error. In fact, the plaintiffs by amending the plaint have also claimed the relief of rectification of the agreement in this regard. Consequently, whether rectification of the agreement is to be granted or not has to be adjudicated in the suit after trial on the basis of amended plaint. In other words, rectification of the agreement could not be allowed at this stage as rightly observed by the trial Court. Consequently, last part of the impugned order i.e. “therefore, in the agreement to sell the khasra number is ordered to be read as 58 instead of 68” has to be set aside.

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Resultantly, the instant revision petition is allowed partly and last part of impugned order Annexure P-5 i.e. “therefore, in the agreement to sell the khasra number is ordered to be read as 58 instead of 68”, is set aside without prejudice to merit of the suit and the question relating to rectification of the agreement regarding khasra number shall be adjudicated upon by the trial Court in the suit.

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Pending civil miscellaneous applications are disposed of as infructuous.

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19.09.2013

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sumit.k

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(L.N. MITTAL) JUDGE

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Sumit Kumar 2013.09.20 14:44 I attest to the accuracy and integrity of this document

Balbir Kaur v. Devinder Kumar and Others

Case brief

What is this about?

What did the court decide?

Balbir Kaur v. Devinder Kumar and Others

Case brief

What is this about?

What did the court decide?

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