RAJ PAUL Vs. OM PARKASH

JUDGEMENT

(1.) THE petitioner filed civil suit No. 112 of 1978 seeking specific performance of an oral contract of sale of a building situated in Raghunath Bazar, Jammu. According to the averments made in Plaint, the parties entered in to an oral agreement on 18th Feb. 1978. Whereby the defendant responded agreed to sell the suit property, consisting of one shop on the ground floor two rooms on the first floor and two rooms on the second floor including the staircase, the main enterance and the normal passage situate in Raghunath Bazar and fully described in the plaint. The sale price was fixed at Rs.85.000/ -. The defendant was paid Rs.20,000/ - as part consideration on 18 -2 -78 itself, by means of a cheque and the balance of the sale amount was agreed to be paid on or before 31st March 1978, at the time of the registration of the sale deed, before the sub -registrar. The sale was in fact agreed to be completed by executing two sale deeds, each of the value of Rs.42.500/ -. That the defendant was approached by the plaintiff for the registration of sale deeds on various occasions before and after 31 -3 -78. That the plaintiff also purchased the duty stamps on 2nd and 3rd of Sept, 1978, for having the sale deed prepared. That whereas the plaintiff was capable and willing at all times, to perform his part of the contract, the defendant failed to do so and hence the suit."

(2.) THE suit was resisted by the defendant, certain preliminary objection were raised in the written statement besides the challenge on merits. One of the objections raised was that no suit for specific performance, on the basis of an oral agreement, lay because such an oral agreement does not amount to a contract for sale of immovable property. On merits it was stated that there was no contract for sale entered into between the parties, though the plaintiff did initiate negotiations for the sale of the suit shop. Under his tenancy, for an amount of Rs.1,65,000/ - but these negotiations were between the plaintiff and Sh. Suraj Parkash, brother of the defendant. That there were no negotiations for the sale purchase of the building described in the plaint with the defendant at any state. On the pleadings of the parties, the following preliminary issue was framed on 20 -4 -79.

(3.) THE plaintiff petitioner on 12 -2 -80 filed the present application under order 6 rule 17 Code civil Procedure seeking permission to amend the plaint A copy of the amended plaint was also filed alongwith the application. The amendment which the petitioner now seeks incorporate in the plaint is to the effect that there was in fact a written agreement executed between the parties on 22 -2 -78 for the sale of the suit shop in which the sale price was fixed at Rs.1,65000/ -. Though it was on the request of the defendant that an amount of Rs.85000/ - only was to be cited as the consideration for sale That the agreement, executed on 22 -2 -78 had been misplaced by the plaintiff and on the advice of his counsel he field the suit for specific performance of the contract basing has claim on an oral contract and that since the said written agreement and now been found, the plaintiff wanted to base his suit for the specific performance of contract on the basis of that agreement. An affidavit of Mr. D. K. Khajuria, advocate, has also been filed in support of the application in which the averments made in the application have been supported.