SUKHDEV SINGH Vs. PARAMJIT KAUR AND OTHERS

JUDGEMENT

(1.) When the suit for specific performance of an agreement to sell property was instituted, the petitioner was living abroad and did not know of the existence of a sale transaction between his vendor and a third party involving the suit property and therefore could not incorporate such facts in the plaint. The pre-suit sale deed is dated 6th May, 2008. The suit was instituted on 23rd May, 2008 bearing Civil Suit No. 164 of even date. The petitioner avers that he came to know of the sale deed in 2008 and on returning to India, he filed an application under Order 6 Rule 17 read with Order 1 Rule 10 CPC to implead the vendees as co-defendants in the suit. That application has been dismissed by the learned trial Court for the reason of delay in making the prayer for amendment of the pleadings. Mr. Malwai appearing for the petitioner points out that it took 4 1/2 years for the trial Court to adjudicate the application under order 1 Rule 10 read with Order 6 Rule 17 CPC and his client could not be entirely blamed of the delay in decision making on the application so long as the initial request was made as early as possible from the date of knowledge of the sale transaction.

(2.) The application was moved on 7th October, 2009 requesting amendment of the plaint as well as to the prayer clause for setting aside of the sale deed on the ground that agreement to sell the suit property was executed on 10th February, 2006 between the defendants and the petitioner and a sum of Rs. 16 lacs had been paid towards earnest money, the prayer for setting aside of the sale deed cannot be said to be time barred since the petitioner was diligently pursuing his available remedy and acted in a bona fide way to overhaul his suit in order to include a challenge to the sale deed. Having lost ground on the application declined for the wrong reasons he should not be punished because of the impugned order. Seen from this angle, it is not a case where the sale deed is sought to be challenged for the first time beyond period of limitation prescribed to bring a suit for possession by way of specific performance of an agreement to sell the suit property given that the agreement is prior to the impugned sale deed involving the same devious vendor, the original defendant. In such circumstances the right to sue subsists. In the circumstances, the petitioner appears to have a very valuable right to amend his pleadings to protect his direct interest by making the vendee a party so that the entire controversy between the parties can be resolved in one proceeding. To this end, the respondent would appear to have no valid right to oppose such a prayer. In any case, he would have a right to file a written statement to the amended plaint and to take all his pleas available to him in law including one of the limitation, if advised, having regard to such questions being mixed questions of fact and law. Therefore, this Court feels no necessity in issuing notice to the respondent only to hear him out on an apparent right vesting in the plaintiff so long as the prayer for amendment and consequential challenge to the sale deed was laid well in time though it took inordinate delay to pass final orders by the learned trial Court on the application. In the result, this petition is accepted and the impugned order dated 6th May, 2014 (P-1) is set aside. The amendment application stands allowed. The amendments as proposed are permitted to be incorporated in the plaint and be part of the record. The vendee be joined as a codefendant. Accordingly, both the vendor and the subsequent vendee of the sale deed would have a right to file written/amended written statements and to contest the case.