PARMANAND Vs. BALRAM BAHRI

JUDGEMENT

(1.) By the impugned order dated 03.3.2011 while disallowing the amendment application filed by the respondent/defendant, the respondent/defendant was directed to file a subsequent pleading to incorporate subsequent events. The subsequent events pertain to the stand of the respondent/defendant that during the pendency of the suit, the possession of the suit property has been illegally taken away by three persons, namely Sh. Krishan Lal Dutta, Sh. Parveen Kumar and Sh. Bijender Kumar.

(2.) In a suit for specific performance, issues which arise are as to the existence of agreement to sell, breach of contract and readiness and willingness of the plaintiff/petitioner/purchaser. Since, admittedly the possession is stated to be lost by the defendant/respondent during the pendency of the suit, the plaintiff/petitioner will always have the benefit of the doctrine of lis pendens. I may however note that, whereas the defendant/respondent claims that possession of the suit property has been illegally taken from him, the plaintiff/petition claims that possession has not been taken away by the said Krishan Lal Dutta etc., and the new facts are being stated only to deny the relief of possession when the suit for specific performance is decreed.

(3.) Since the aspect of possession will be an aspect of lis pendens under Section 52 of the Transfer of Property Act, 1882 this aspect need not be brought in by means of subsequent pleading and hence the impugned order with consent is set aside with the observations that the facts as stated by the defendant/respondent in the application for amendment are brought to the knowledge of the plaintiff/petitioner, and with respect to the said facts, whatever rights the plaintiff/petitioner has, will be examined in the course of the suit.