Smt. Saroj W/O Late Sh. Devicharan Vs Smt. Sitarani W/O Sh. Rajendra Pal

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

S.B. Civil Writ Petition No. 27488/2018

Smt. Saroj W/o Late Sh. Devicharan, Aged About 61 Years, By Caste Brahmin, R/o Untkhana Kothi, Dholpur, Presently Resides At Sitaram Colony, Dholpur (Rajasthan).

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----Petitioner

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Versus

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Smt. Sitarani W/o Sh. Rajendra Pal, Aged About 75 Years, Resident Of Radhabihari Road, Dholpur (Rajasthan) (Since Deceased)

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Bhupendra S/o Sh. Rajendra Pal, Aged About 55 Years, Resident Of Radhabihari Road, Dholpur (Rajasthan)

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Harendra Alias Gopal S/o Sh. Rajendra Pal, Aged About 45 Years, Resident Of Radhabihari Road, Dholpur (Rajasthan)

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Smt. Kiran Khosla W/o Late Sh. Narendra Khosla, Aged About 48 Years, Resident Of Radhabihari Road, Dholpur (Rajasthan)

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Bharat Khosla S/o Late Sh. Narendra Khosla, Aged About 23 Years, Resident Of Radhabihari Road, Dholpur (Rajasthan)

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Vikas S/o Late Sh. Narendra Khosla, Aged About 17 Years, Resident Of Radhabihari Road, Dholpur (Rajasthan)

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Ku. Gautmi D/o Late Sh. Narendra Khosla, Aged About 14 Years, Minor Through Their Natural Guardian Mother Smt. Kiran Khosla, By Caste Khatri, Resident Of Radhabihari Road, Dholpur (Rajasthan)

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----Respondents

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For Petitioner(s) : Mr. Vivek Goyal, Adv. For Respondent(s) : Mr. Sumit Kumar Jain, Adv.

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: Mr. Sumit Kumar Jain, Adv.

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HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA

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Order

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21/01/2025

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(2 of 4) [CW-27488/2018]

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Matter comes up on an application (I.A. No.1/2024) under Order 22 Rule 2 CPC for inserting word “Deceased” as against the name of respondent No.1 in the cause title.

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For the reasons mentioned therein, the application is allowed. Word “Deceased” is inserted against the name of respondent No.1-Smt. Sitarani. Amended cause title which is filed with the application is taken on record.

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The Civil Writ Petition has been filed by the plaintiffpetitioner(for short ‘the plaintiff’) against the order dated 16.11.2018 passed by the District Judge, Dholpur (for short ‘the trial court’) in Civil Suit No.78/2012 (CIS No.121/2014) titled as “Saroj Vs. Sitarani & Ors.”, whereby the trial court dismissed the application filed by the plaintiff under Order 6 Rule 17 CPC.

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Learned counsel for the plaintiff submits that the plaintiff had filed a suit for specific performance of the contract in which respondents-defendants (for short ‘the defendants’) filed written statement to the effect that they have sold 90% of the total disputed land to other persons. He further submits that the plaintiff filed an application under Order 6 Rule 17 CPC before the trial court for adding additional para No.15-A in the plaint mentioning that the defendants have sold the plots/disputed land to other persons. So, in this condition, plaintiff is entitled to get Rs.40 lacs with interest but the trial court vide order dated 16.11.2018 wrongly dismissed the said application filed by the plaintiff. Learned counsel for the plaintiff also submits that the trial court has committed an error in dismissing the amendment application filed by the plaintiff because the defendants had sold 90% of the disputed property to other persons. If the suit for

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(3 of 4) [CW-27488/2018]

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specific performance of the contract is not decreed, then, the plaintiff is entitled to get advance money given by him as per the agreement i.e. Rs. 40 lacs with interest. On this ground, nature of the suit would not be amended. So, the order dated 16.11.2018 passed by the trial court be set-aside and the amendment application filed by the plaintiff be allowed.

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Learned counsel for the plaintiff has placed reliance upon the judgment passed by the Hon’ble Supreme Court in the case of Universal Petro Chemicals Limited Vs. B.P.PLC & Ors. passed in Civil Appeal No.3127/2009 and 3128/2009 decided on 18.02.2022 .

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Learned counsel for the defendant(s) has opposed the arguments advanced by learned counsel for the plaintiff and submitted that the trial court rightly dismissed the amendment application filed by the plaintiff because the plaintiff filed the said application after a lapse of 6 years from the date of filing the present suit. The defendants had also filed written statement in the year 2012. So, the amendment sought filed by the plaintiff would change the nature of the suit. So, the present petition filed by the plaintiff be dismissed.

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I have considered the arguments advanced by learned counsel for the plaintiff as well as learned counsel for the defendant.

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It is an admitted position that the defendants in their written statement mentioned that they had sold 90% part of the disputed land. It is also admitted position that the plaintiff sought the present amendment after a lapse of a long period. In my

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[CW-27488/2018]

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(4 of 4)

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considered opinion, delay can be compensated with cost. So, the present petition deserves to be allowed.

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Accordingly, civil writ petition filed by the plaintiff is allowed. The order dated 16.11.2018 passed by the trial court is set-aside. The trial court is directed to take the amendment as sought by the plaintiff on record subject to payment of cost of Rs.10,000/- by the plaintiff to the defendant on or before next date of hearing.

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Pending application(s), if any, also stand(s), disposed of.

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(NARENDRA SINGH DHADDHA),J

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Gourav/78

Smt. Saroj W/O Late Sh. Devicharan v. Smt. Sitarani W/O Sh. Rajendra Pal

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Smt. Saroj W/O Late Sh. Devicharan v. Smt. Sitarani W/O Sh. Rajendra Pal

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