AMRIT LAL TAYA Vs. VISHWA NATH

JUDGEMENT

(1.) HEARD learned Counsel for the parties on application filed by respondent No. 2 under Article 226(3) of the Constitution of India for vacating the interim order granted by this Court dated 12.2.2007.

(2.) BRIEF facts of the case are that plaintiff -petitioner filed the suit for specific performance of contract dated 2nd April, 1978 in the trial court on 23rd Jan., 1982. The petitioner -plaintiff sought amendment of the plaint twice before present application for amendment of plaint third time was filed in the trial court on 22nd Dec., 2006, i.e., after about more than 24 years. The plaintiff's original suit contained specific pleading of the plaintiff that the plaintiff entered into contract for purchase of the property on 2nd April, 1978 and this agreement is oral one. Apart from above pleadings, the plaintiff's case is that despite plaintiff's insistence, the defendants did not agree to execute the written agreement. After 24 years from the time of filing of the suit, on 22nd Dec., 2006 the plaintiff submitted an application for amendment of the plaint stating therein that oral agreement was entered into on 2nd April, 1978 and the plaintiff paid Rs. 10,001/ - to the defendants -vendor on the same day i.e., 2nd April, 1978. Self -contradicting his own specific admission in the plaint, in the application, the plaintiff stated that the agreement dated 2nd April, 1978 was reduced in writing on 21st Feb., 1980. In the application, only reason given for not mentioning the fact in original or amended plaints is that out of mistake ¼lgou 1/2 and due to over site the plaintiff could not mention this fact of written agreement dated 21nd Feb., 1980 in the plaint. Therefore, plaintiff prayed that plaintiff be permitted to incorporate the plea that after 2nd April, 1978, one of the trustees of the alleged vendor trust confirming the alleged oral agreement dated 2nd April, 1978 executed a written agreement on 21st Feb., 1980 in favour of the plaintiff, therefore, defendants are bound to follow the agreement dated 2nd April, 1978 and its writing dated 21st Feb., 1980.

(3.) THE trial court dismissed the petitioner's -plaintiff's application for amendment of the plaint filed under Order 6 Rule 17 CPC on the ground that by this amendment, two contradicting plea will come in the plaint and therefore, that cannot be allowed. The trial court was of the view that plaintiff cannot withdraw his admission in plaint by amendment. Further, the trial court held that the application has been filed after delay of 25 years from the time of filing of the suit. Substantially, on these grounds, the plaintiff's application was dismissed with cost of Rs. 2,000/ -. The petitioner has challenged the said order of the trial court dated 10.1.2007 by preferring this writ petition wherein the interim order was passed by this Court on 12th Feb., 2007.