T S PANNU Vs. VIJAY SHANKAR

JUDGEMENT

(1.) THIS petition is directed against the order dated 15.11.2013, dismissing the application filed by the plaintiff/petitioner under Order 6 Rule 17 to amend the plaint.

(2.) THE facts given to me are that the petitioner entered into an agreement to purchase the disputed property from Vijay Shankar/respondent No.1 on 3.11.2000. According to the petitioner, the entire sale consideration was paid and in lieu thereof Vijay Shankar executed General Power of Attorney, affidavit and Will in favour of the petitioner, which was submitted by the petitioner to the Estate Officer, PUDA at that time. It is also submitted that the possession was also delivered at the time when the agreement to sell was entered into between the parties. Respondent No.2 -Kulwant Kaur filed a suit for specific performance against respondent No.1 in the year 2005 on the strength of an agreement to sell between the parties in respect of the house in dispute. The petitioner tried to become a party in that suit but his application was dismissed and under a wrong advice, civil revision was filed before the District Judge, which remained pending for some time. Vijay Shankar/respondent No.1 did not contest the suit as he was proceeded against ex parte resulting into an ex parte decree dated 24.11.2009 passed in favour of Kulwant Kaur. The petitioner then filed a suit for specific performance in the year 2011 on the basis of agreement dated 3.11.2000 against Vijay Shankar and in that suit Kulwant Kaur filed an application under order 1 Rule 10 of the Code of Civil Procedure, 1908 [for short 'the CPC] to become a party. The said application was allowed. The petitioner filed an amended plaint on the ground that he did not specifically mention about the amendment which was sought by him except mentioning defendant No.2 in the plaint. Later on, the petitioner realized that the specific averments have to be made in the plaint so that the defendants may give specific relief and in view thereof filed another application under Order 6 Rule 17 of the CPC for amendment, which was contested by Kulwant Kaur and resulted into dismissal on 15.11.2013 against which the present revision petition has been preferred.

(3.) THE petitioner has argued that the trial Court has erred in dismissing the application on the ground that since the issues have been framed and the case has been fixed for evidence, therefore, the trial has commenced and in view of proviso to Order 6 Rule 17 of the CPC, the plaintiff has failed to show due diligence for the purpose of seeking amendment. It is submitted that the petitioner was allowed to amend the plaint but due to oversight and inadvertence on his part, facts regarding decree in favour of Kulwant Kaur could not be pleaded and even the said decree could not be challenged having obtained by way of fraud etc. Learned counsel for respondent No.2 has submitted that the amendment, at this stage, cannot be allowed and the application has been rightly dismissed by the trial Court because the amendment would change the entire cause of action of the plaintiff as earlier it was only a suit for specific performance of the agreement to sell but now the petitioner is also challenging the decree passed in favour of Kulwant Kaur against Vijay Shankar in respect of the property in dispute of which she has become the owner as the sale deed has already been executed. It is also submitted that even the petitioner was not permitted to become the party in the suit filed by Kulwant Kaur as his application under Order 1 Rule 10 of the CPC was dismissed.