DEVINDER DEV Vs. KRISHAN LAL

JUDGEMENT

(1.) THIS revision is directed against the order dated 9.2.95 of Additional District Judge, Jalandhar whereby he refused the plaintiff's prayer to amend the plaint under Order 6 Rule 17 CPC. It was suit for possession through specific performance filed by Devinder Dev against Krishan Lal with regard to agreement dated 19.6.90 for sale in respect of house detailed in the head note of the plaint situated in Mohalla Suffian Moti Bazar, Phagwara on payment of Rs. 10000/- i.e. Rs. 20,000/- minus Rs. 10,000/- already paid; in the alternative, suit for recovery and realization of Rs. 20000/- i.e. Rs. 10000/- paid as earnest money to the defendant and Rs. 10000/- as compensation for the non-performance by the defendant of the said agreement and the damage suffered by the plaintiff and for permanent injunction restraining the defendant from transferring or alienating the said house. It was alleged in the plaint that on 19.6.90 defendant entered into an agreement to sell his house as detailed in the heading of the plaint along with all rights appurtenant thereto for Rs. 20000/- and received Rs. 10000/- as part payment from him and duly executed agreement dated 19.6.90 which was signed by the plaintiff and the defendant and duty attested by the witnesses. Sale deed was to be registered on or before 19.12.90 before the Sub-Registrar on receipt of the remaining sale money. In case defendant defaulted he will pay double the amount to the plaintiff and in case plaintiff defaulted, the amount already paid by him would stand forfeited. Plaintiff has already been ready and willing to perform his part of agreement so much so a few days before 19.12.90, he approached the defendant along with certain respectables offered him Rs. 10000/- and called upon to executive sale deed and also that he will incur the expenses of stamp and registration charges and the defendant assured that he will do so on 19.12.90. On 19.12.90 he went to the office of Sub Registrar and remained present there from 9 a.m. to 5 p.m. ready with the amount of Rs. 10000/- and also the amount necessary to meet the expenses of stamp and registration but the defendant did not turn up. He swore an affidavit, got it attested from the Oath Commissioner as to his presence with the amount before the Sub-Registrar.

(2.) DURING the pendency of the suit, plaintiff made an application for amendment of plaint. By way of amendment, plaintiff wanted to plead that in fact the said agreement was entered into with defendant Krishan Lal and his mother Somawati by him. Krishan Lal signed agreement on his behalf and on behalf of his mother with full sense of responsibility. After execution of the agreement, Somawati had also reached the court compound where the agreement was written and she also thumb marked the agreement in dispute for which she earlier had directed Kirshan Lal to sign on her behalf. Somawati executed the agreement after fully understanding and hearing and after admitting the same to the correct, put her thumb and took the responsibility to fulfil her obligation as per terms and conditions of the agreement. She ratified the act and signatures done by Krishan Lal her son. Krishan Lal and Somawati thus became executants of the agreement and became equally liable to fulfil their obligations and perform their part of agreement. Said Somawati died in the year 1990 and the defendant became the sole and absolute owner of the suit property and fully liable to fulfil the entire terms and conditions of the agreement. Subsequently, Krishan Lal also died during the pendency of the suit and his LRs have been brought on record and have been impleaded as such being the LRs of defendant Krishan Lal.

(3.) LEARNED counsel for the petitioner submitted that amendment of plaint should have been allowed and no prejudice will be caused to the defendant if plaintiff is allowed to amend the plaint. In support of this submission, he drew my attention to Sqn. Ldr. Gurdail Singh (Retd.) v. Gurdev Singh and others, 1992(1) PLR 111 : 1992(1) RRR 397 (P&H). Proposed amendment if allowed would change the cause of action altogether whereas earlier cause of action is against Krishan Lal alone, now the cause of action is sought to be pleaded against Krishan Lal and his mother Somawati. Learned counsel for the petitioner submitted that proposed amendment should have been allowed when the plaintiff has adduced evidence on the facts set up in the amended plaint. Suffice it to say, if he has adduced evidence on the facts set up in the amended plaint, that evidence can be ignored when the proposed amendment was not allowed. Evidence can be adduced only on the facts pleaded and not on the facts which were not allowed to be incorporated through the proposed amendment. It is quite settled that no amendment can be allowed if some right has become accrued to the opposite party as right which has become accrued to the opposite party cannot be taken away in the garb of amendment. In September 1994, when application for proposed amendment was made, there was no limitation left for claiming specific performance against Somawati. For the reasons given above, this revision fails and is dismissed. Petition dismissed.