LAKHI RAM DEAD Vs. TRIKHA RAM

JUDGEMENT

(1.) The appellant is the original plaintiff who had filed a suit for specific performance of contract for sale of suit lands. The suit was filed against the original vendor i.e. respondent No. 2 and also against the subsequent purchasers, respondents Nos. 1 and 3 herein. We will refer to the appellant as the plaintiff and the respondents as defendants for the sake of convenience in the latter part of this judgment. The plaintiff has felt aggrieved by the decision of the High Court passed in miscellaneous appeal whereby the High Court has set aside the order of amendment of plaint as granted by the first appellate Court and dismissed the plaintiff's suit.

(2.) A few relevant facts leading to these proceedings deserve to be noted at the outset. Plaintiff's case is that defendant No. 1 was Bhumidar of 2/3 share in 9 plots situated in village chindori Khas, Meerut District of Uttar Pradesh. According to the plaintiff, defendant No. 1 agreed to sell his entire share on 30-6-1969 to the plaintiff for a consideration of Rs. 12,000/- (Rupees twelve thousand only). Rs. 2,000/- (Rupees two thousand only) was taken by him as earnest money from the plaintiff when he executed the said agreement on the same day in plaintiff's favour. According to the plaintiff, despite this agreement defendant No. 1 did not execute the sale deed and instead sold the property to defendants Nos. 2 and 3. He thereafter filed the aforesaid suit for specific performance. Defendant No. 1 remained ex parte in the trial Court. Defence was submitted by the subsequent purchasers namely, defendants Nos. 2 and 3. After hearing the contesting parties the trial Court took the view that it was proved that defendant No. 1 had agreed to sell the disputed property to the plaintiff on 30-6-1969 after accepting Rs. 2,000/- (Rupees two thousand only) as earnest money. It was also held that defendants Nos. 2 and 3 were not bona fide purchasers for value without notice, that the suit was not barred under Section 34 of the Specific Relief Act. In the result, the suit was decreed by the trial Court by order dated 18-4-1972. Defendants Nos. 2 and 3 carried the matter in appeal. In appeal it was contended amongst others that the suit was barred by Section 16(c) of the Specific Relief Act, 1963 as the plaintiff did not aver in the plaint that he was ready and willing to perform his part of the contract. When such a contention was raised amongst others at the stage of arguments, the plaintiff moved an application for amending the plaint under Order 6, Rule 17 of the Code of Civil Procedure seeking introduction of the averment regarding his readiness and willingness to perform his part of contract. That amendment was granted by the appellate Court and as a result, the decree of the trial Court was set aside and the proceedings were ordered to be remanded to the trial Court for framing appropriate issues in the light of the amended plaint subject to the plaintiff praying costs as indicated in the judgment of the appellate Court while granting amendment. The appeal was allowed, the judgment and decree of the trial Court were set aside, application for amendment of the plaint was allowed on payment of Rs. 3,000/- (Rupees three thousand only) as costs. The aforesaid decision of the appellate Court dated 13-7-1975 was brought in challenge by defendants Nos. 2 and 3 before the High Court in miscellaneous appeal as the appeal was directed against the remand order. The High Court took the view that such proposed amendment could not have been granted as it would displace the defence of the defendants and consequently, the order of the appellate Court allowing the amendment was set aside. Learned single Judge who decided the appeal followed an earlier decision of the Division Bench of the High Court and held that once such proposed amendment was refused, the suit would not survive and, therefore, the appeal was allowed, the order of the lower appellate Court was set aside and the plaintiff's suit was dismissed. It is this order of the High Court which is the subject-matter of this appeal after special leave was granted.

(3.) Learned counsel for the appellant raised two contentions in support of the case. He firstly submitted that the proposed amendment was rightly allowed by the lower appellate Court, that in a suit for specific performance of contract, the cause of action centered round inaction on the part of the vendor in complying with the agreement to sell the property, that if averment under Section 16(c) of the Specific Relief Act was not originally inserted due to oversight or otherwise by the plaintiff, he can always be permitted to amend the plaint. In support of his contention, he relied on the decision of this Court in the case of Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar reported in (1990) 1 SCC 166. A Bench of two learned Judges of this Court speaking through Kania, J. (as he then was) made the following observations in the case: