AJIT PRASAD JAIN Vs. N K WIDHANI

JUDGEMENT

(1.) Plaintiff seeks a decree of specific performance in respect of property No. 59, Babar Road, Bengali Market, New Delhi, owned by defendants I to 5, who are the sons of Defendant No. 6. The case of the plaintiff is that the defendants entered into an agreement for sale of the suit property with the plaintiff on 19.12.1976. The agreement was signed by defendant No. 6 as attorney of defendant No. 2 as well as on his own behalf. It was also signed by defendants 1, 3 to 5. A sum of Rs.10,000.00 in cash was paid as earnest money The sale price of the suit property was settled at Rs. 2,65,000.00 . The defendants had undertaken to give vacant possession of the. suit property to plaintiff soon after the payment of Rs. 1,65,000.00 to defendant No. 6 on behalf of the defendants. Another sum of Rs. 35,000/ was payable within 15 days of the date on which the permission of Land and Development Officer, New Delhi, is communicated to the plaintiff by defendant No. 6. he balance amount of Rs.55,000.00 was payable at the time of registration of the sale deed before the Sub Registrar, Delhi/New Delhi. It is common case of the parties that a sum of Rs. 10,000.00 was paid by plaintiff to defendants as recorded in agreement dated 19.12.1976. The further case of the plaintiff is that he approached defendant No. 6 and requested him to fix time and date for payment of Rs. l,65,000.00 and for delivery of possession by defendants to the plaintiff but inspite of promising to do so defendant No. 6 has been putting of the plaintiff on one pretext or the other. Plaintiff also says that he approached defendant No. 6 personally at Jaipur and requested him to fix date and time for receiving payment and delivery of possession but defendant No. 6 failed to do so though he had promised that he will do it in the near future. Thereupon, plaintiff served a telegraphic notice through his advocate on defendant No. 6 calling upon him to receive sum of Rs. 1,65,000.00 and deliver vacant possession of the property to him within three days next of the said telegram dated 4th May 1977 but the defendants failed to do so. Plaintiff had also served on defendants notice dated 6.5.77 calling upon defendants not to negotiate sale with anyone else and to deliver the vacant possession of the premises to the plaintiff against receipt of Rs. l,65,000.00 within three days of the receipt of the said notice but the defendants failed to comply with the said notice. Plaintiff further claims that he contacted defendant No. 6 who promised to come to Delhi on 13.5.77 for the purpose and asked the plaintiff to get a bank draft prepared for Rs. l,65,000.00 in the meanwhile which bank draft was got prepared by the plaintiff in favour of defendant No. 6 from Andhra Bank Ltd. but the said defendant again failed to turn up on 13.5.77. On being contacted again defendant No. 6 informed the plaintiff that he was not prepared to receive the amount and deliver possession to him. In plaint as originally filed the plaintiff stated that the cause of action for the remaining part of the agreement ie. for payment of Rs. 35,000.00 on intimation of permission to sell by Land and Development Office and registration of the sale deed has not arisen as permission by Land and Development Office bad not so far been communicated by defendant No. 6 to him and stated that he reserves his right to claim specific performance of the remaining part of the agreement as and when such permissions are obtained. On 17.5.77 this suit was filed, inter-alia, praying for decree for vacant possession of the suit property subject to payment or deposit in court of Rs. l,65,000.00 by the plaintiff.

(2.) A joint written statement dated 12.8.77 was filed by defendants. Various pleas were raised to which reference will be made in later part of the judgment. An application dated 23.7.79 (1.A. 2791/79) was filed by defendants seeking amendment of the written statement. The defendants sought leave to incorporate, by amendment of the written statement, preliminary objections No. 2 to 7 after existing preliminary objection No. 4. The defendants also sought leave to add certain words in Para 8 of the written statement on merits. The application for amendment was decided on October 26, 1979 by D.K. Kapur J. Leave to incorporate Para 5 in the preliminary objections was granted to the defendants and to that extent the proposed amendment was allowed. The Court disallowed the amendement proposed in Paras 6 and 7 of the proposed amendment. The said proposed paragraphs 6 7 read as under :-

(3.) The plaintiff by 1.A. 3582/79 sought leave of the court to amend the plaint. The amendment sought for was allowed by orders made on 3rd December 1979. ID the order dated 3.12.79 it is noticed that initially the suit was for possession with permission to apply for specific performance as and when certain pre-requisites were satisfied. Now the plaintiff wanted to sue for all the reliefs at once. The court allowed the amendment and observed that the proposed amendment was concerned with the rights already propounded in the plaint. The amended plaint was filed by the plaintiff. The written statement dated 12.2.80 was filed by defendants to the aforesaid amended plaint. In the written statement now filed the facts incorporated in the aforesaid paras 6 of the proposed amendment of the written statement which had been disallowed on October 26, 1979 were incorporated in Para9oftbis written statement. Para7 of the proposed amendment which had been disallowed was added in Para 19 of the written statement dated 12.2.80. The plaintiff objected to the additions made in Para 9 and 19 of the written statement dated 12.2.80. However, plaintiff's application (1.A. 30/86) directing defendants I to 9 to delete these portions from the written statement dated 12.2.80 was dismissed by H.C. Goel J. on March 11,1986. It was observed in this order that complextion of the suit had changed after the amendment of the plaint which had been allowed on 3.12.79 by O.K. Kapur J. and under such a situation defendants were entitled to make further averments in the written statement which were relevant to the newly added claim of the plaintiff, that is, one for a decree for specific performance of the contract and accordingly it was held that defendants were entitled to retain Para 9 and 19 of the written statement as filed by them in reply to the amended plaint.