RAJ DEVI Vs. MOHAMMAD SALIM SIDDIQUE

JUDGEMENT

(1.) This revision petition is directed against the order dated 10th December, 1990 passed by Shri B.S. Chaudhary, Additional District Judge, Delhi whereby he has disallowed the application of the petitioner-defendant No. I under Order 6 Rule 17 of the- Code of Civil Procedure for amendment of the written statement.

(2.) The case set up by the plaintiffs respondents in the suit is that he has filed a suit for specific performance on the basis of an agreement to sell and possession of house No A-1/5, East Krishna Nagar, West Shahdara, Delhi. According to him, it was agreed to be sold for a consideration of Rs. 90,000.00 already paid to the petitioner defendant No. I by the plaintiffs- respondents. In the written statement the stand taken by the petitioner-defendant No. I, in substance, was that she was in possession of the suit property throughout as owner.and that she was residing in the suit property as owner. In the amendment application, the petitioner-defendant No. I wants, in substance, to add additional pleas in as much as that although she claims to be the owner and in possession of the property in dispute but as yet she has not obtained the sale deed in her favour and she had obtained only power of attorney and agreement to sell dated 17 8.1979 from one Shri Devi Dayal Bhasin. It appears that Shri Devi Dayal Bhasin purported to have issued a power of attorney in favour of Shri Subhash Chander of the property in dispute and Shri Subhash Chander has again issued a power of attorney in favour of the present petitioner-defendant No. 1. The second plea which is sought for in the amendment application is that the plaintiffs- respondents have played fraud on her in getting such agreement to sell dated 17.8.1979 executed from her as she is an illiterate lady and could not know the contents of the documents so got thumb marked from her. Such agreement of sale is the result of such fraud and she has never executed the power of attorney in favour of the respondents-plaintiffs.

(3.) After hearing the parties at some length, I am of the view that the amendments sought for by the petitioner-defendant No. I are necessary to determine the point in controversy and should have been allowed by the trial Court. Counsel for the respondents-plaintiffs, however, contended that such amendments, if allowed will take away the admission made by the petitioner. defendant No I in the written statement earlier that she is the owner and in possession of the property in dispute. In my view the amendment sought for cannot take away the admission made by the petitioner-defendant No. I as she only wants to incorporate that although she is the owner and in possession of the property in dispute but she has not got the sale deed executed and she has got in possession the property only on the basis of power of attorney and agreement to sell. Certainly the allegation of fraud sought to be added in the additional pleas also does not in any way change the complexion of the case.