VIRENDER SINGH DHAKA Vs. SIDHARATH BALUPURI & ORS

JUDGEMENT

(1.) By the present petition under Article 227 of the Constitution of India the petitioner/plaintiff impugns the order of the trial court dated 10.4.2012 by which the trial court has dismissed an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) filed by the petitioner/plaintiff for amendment of the plaint. The existing suit plaint was a suit for permanent and mandatory injunction wherein the petitioner/plaintiff claimed to be in possession of the suit land and sought injunction orders against his dispossession. The suit property is an area of 1300 sq. yds forming part of 4 bighas and 12 biswas of land in Khasra No. 32/19, Village Devli, Tehsil Mehrauli, known as Sainik Farm, New Delhi. By means of the amendment petitioner/plaintiff wants to add facts with respect to his illegal dispossession during the pendency of the suit and that the documentation which was got executed from him on 28.7.2008 bearing the dates of 29.7.2008 and 30.7.2008 are illegal and void documents having been executed by coercion and pressure etc.

(2.) (i). It is necessary at this stage to observe that if the subsequent documentation dated 29.7.2008 and 30.7.2008 are correct documents, then the suit itself was to be withdrawn, and for which purpose, an application under Order XXIII Rule 1 CPC was made, but, that application as per the statement made on behalf of the petitioner/plaintiff before me today has been allowed to be withdrawn, and it is because of this position that this Court is examining the issue as to whether the amendments as prayed for by the petitioner/plaintiff should or should not be allowed, and which would not be if the application under Order XXIII Rule 1 CPC was still pending.

(3.) I may note that in an application if filed under Order XXIII Rule 3 CPC, if one party disputes the compromise which has been entered into between the parties in writing and signed, then it is the court before whom the application under Order XXIII Rule 3 CPC has been moved which has to decide the issue as to whether or not there is a lawful compromise in writing and signed by the parties. In fact, filing of a suit is barred with respect to these issues of whether or not an agreement in writing and signed is or is not entered into between the parties lawfully, because such issues are to be decided in court before whom the application under Order XXIII Rule 3 CPC is filed and not by a separate suit vide Order XXIII Rule 3A. Similar principles will apply even to an application under Order XXIII Rule 1 CPC wherein the petitioner/plaintiff states that his consent was not voluntarily obtained to the documentation of transfer of rights in the suit property as also to the filed application under Order XXIII Rule 1 CPC, however, no trial was held on this aspect possibly because there was no such request made by the defendants in the suit, and consequently, the application under Order XXIII Rule 1 CPC alleged to have been filed by the petitioner/plaintiff was allowed to be withdrawn. As already stated above, once allegations of the petitioner/plaintiff with respect to the subsequent documentation and giving up rights in the properties are not to be examined before the trial court, it is then to be held that the petitioner/plaintiff denies transfer of rights pursuant to the documentation dated 29.7.2008 and 30.7.2008.