TARSEM SINGH Vs. DALJIT KAUR AND OTHERS

JUDGEMENT

(1.) This revision petition is directed against the order, dated 15th November, 1984, of the learned Subordinate Judge, First Class, Jullundur, whereby he has rejected an application under Order 6 Rule 17, Civil Procedure Code, made by the petitioner. It has been filed in the following circumstances.

(2.) Tarsem Singh and his brothers filed a suit for the recovery of Rs. 20,000/- being an earnest money and damages fro the non-performance of the agreement for sale. The suit was contested by the defendants. The plaintiffs filed an application for amendment of the plaint and the same was allowed. They were permitted to plead two additional facts, namely, that defendant No. 2 had cancelled the power of attorney of defendant No. 1 and defendant No. 2 had gifted his land in favour of the grandson of defendant No.1. The plaintiffs filed another application seeking amendment to the plaint. They wanted to add that the plaintiffs and defendant No. 3 were always ready and willing to perform their part of the contract and were still ready and willing to perform that part, and that the transfer of land by defendant No. 2 in favour of defendant No. 4 was illegal and was hit by the principles of the lis pendence and the transfer had been made with the intention to commit a fraud on the plaintiffs and defendant No. 3. They also impleaded Sarabjit Singh, defendant. They wanted to amend the prayer clause while seeking the relief of specific performance of the agreement of sale by possession and in the alternative, for the recovery of Rs. 20,000/-. So this application was opposed by the defendants. They pleaded that the present amendment should not be allowed because the plaintiff never had the intention to seek specific performance of the agreement of sale and had in fact given up this relief, and set up inter alia a new case. This relief had not been claimed in the original suit and not even in the first amendment application. The plaintiffs had never pleaded that they had been ready and willing to perform their part of the agreement and were ready and willing to do so. Sarbjit Singh had not been pleaded through the first amendment even though the gift in his favour had been challenged.

(3.) The learned trial Judge was impressed by the stand taken by the defendants. He came to the conclusion that by omitting to mention in the plaint that the plaintiffs had been and were still ready and willing to perform their part of the contract for sale of immovable property and by this lapse, a valuable right had accrued to the defendants, and the amendment sought to bring about a new cause of action. In reaching this conclusion, the learned Judge sought sustenance from the decisions in Mahmood Khan and another v. Ayub Khan and others, 1978 AIR(All) 463, and Bhubaneswar Patel v. Janak Patel and others, 1976 AIR(Ori) 216.