SIRI CHAND Vs. NAHAR SINGH

JUDGEMENT

(1.) THIS revision is directed against the order dated 9.9.1993 of the trial court whereby an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint moved by the plaintiff-petitioner has been dismissed.

(2.) PLAINTIFF -petitioner filed a suit for possession by way of specific performance against the defendant-respondents. During the pendency of the suit the plaintiff moved an application for amendment of the plaint and prayed for addition of para 5(a) in the plaint. The averments which were sought to be made in the plaint in the shape of para 5(a) by way of amendment of the plaint read thus :-

(3.) AFTER hearing learned counsel for the parties and going through the record, I am of the opinion that this petition deserves to succeed. During the course of hearing, copy of the plaint, copies of written statement filed separately by defendant 1 to 9, and defendant No. 10 and the application for amendment of plaint were shown to me by the learned counsel for the parties. As per the averments contained in the plaint, defendants 1 to 9 are owners in possession of the property as per their respective shares as detailed in para 1 of the plaint. Defendants 1 to 9 agreed to sell the property in question with all rights appurtenant to it to the plaintiff for a total consideration of Rs. 5,90,625/- and they got an agreement of sale written on 7.6.1985 in favour of the plaintiff. A sum of Rs. 10,500/- was paid by the plaintiff to defendant No. 1 as earnest money at the time of execution of the agreement but the agreement of sale was only signed by defendant No. 1 and defendants 2 to 9 slipped away and did not sign the same. Defendant No. 1 made an endorsement on the agreement in token of having received a sum of Rs. 10,500/-. As per the terms of the agreement, defendants Nos. 1 to 9 were required to obtain a Clearance Certificate from the Income-Tax Department and the sale deed was agreed to be executed by 30.12.1985 on payment of the balance sale consideration and in the case of any delay in obtaining the Clearance Certificate the date for execution and registration of the sale deed was to be treated as extended. The expenses for stamp and registration were agreed to be borne by the plaintiff-purchaser. The plaintiff was also given an authority to get the sale deed registered through court in case of breach of the terms of the agreement on the part of the vendors. The plaintiff paid a further sum of Rs. 2000/- vide cheque dated 6.7.1985 to defendant No. 9. The plaintiff had been insisting upon the defendants to get the Clearance Certificate from the Income-Tax Department and registered the sale deed. The plaintiff further paid a sum of Rs. 73,875/- for the purchase of stamp paper required for registration of the sale deed and defendant No. 1 purchased the stamp paper and handed over the same to the plaintiff. Case of the plaintiff further goes that later on, the vendors became dishonest on account of an offer of higher price by defendants 10 and 11. But since the defendants- vendors did not perform their part of the contract/agreement despite repeated requests made by the plaintiff and a registered notice issued to them, the present suit was filed for possession by way of specific performance and a further direction to defendants 1 to 9 to execute the sale deed. The defendants in their written statement denied the allegations as contained in the plaint. They even denied the execution of the agreement of sale of the property in dispute. The defendants have pleaded a quite different story and alleged that they had agreed to sell the property in question in favour of defendant No. 11 vide agreement of sale dated 11.5.1985 for a sale consideration of Rs. nine lacs and the said agreement was in possession of defendant No. 11.