SUBHASH KHANNA Vs. GAURI DEVI RATHOD

JUDGEMENT

(1.) HEARD respective counsels for the plaintiff -petitioner and the defendants -respondents. Pleadings have been exchanged and as agreed between the parties, this writ petition is being decided finally at the stage of admission itself.

(2.) THE instant writ petition has been preferred by the petitioner challenging the order dated 23rd August, 2010 (Annexure 3) passed by the Subordinate Judge -XI, Ranchi in Title Suit No. 151 of 1993. Original Title Suit No. 151 of 1993 was instituted for specific performance of an agreement of sale dated 7th September, 1990 in respect of the suit property for a total amount of Rs. 4,01,000.00 and earnest money of Rs. 2,70,000.00 was deposited. There was another agreement of sale dated 9th September, 1990 and the plaintiff -petitioner instituted a second suit being Title Suit No. 176 of 1993 for specific performance of the agreement of sale. Title Suit No. 176 of 1993 was contested by respondent no. 9 on the ground that he was a minor on the date of execution of the agreement and, therefore, the agreement is not enforceable under the Contract Act and Title Suit No. 176 of 1993 was dismissed on this basis. The plaintiff -appellant filed appeal being Title Appeal No. 28 of 2002 which was allowed on the ground that that Pawan Kumar Rathod was major on the date of agreement. Consequent to allowing of the appeal, an amendment application was preferred by the plaintiffpetitioner for amending and adding paragraph 12 (a) in the plaint. This amendment application was accompanied with a decree passed in Title Appeal No. 28 of 2002. The court below rejected the amendment application vide Annexure 1 on the ground that second appeal is still pending and the finding had not attained finality. This order refusing amendment is challenged in the instant writ petition.

(3.) MR . Rajan Raj, learned counsel appearing on behalf of the respondents objected to the amendment. However, the objection is primarily on the ground that the alleged agreement is forged and fabricated document. The respondents have disputed the fact that Title Suit No. 151 of 1993 was instituted only between the plaintiff and defendant no. 9 -Pawan Rathod. It has specifically been contended that the petitioner concealed the fact that the judgment dated 22nd June, 2004 passed in Title Appeal No. 28 of 2002 has been stayed by the High Court and, therefore, the amendment sought in the plaint is uncalled for as the matter is still subjudice and it will have a far reaching effect on the merits of the case which are to be decided on the facts pleaded. Any addition on the basis of a judgment in another suit, may be on the same issue, as to whether defendant no. 9 was a major or not on the relevant date, cannot be allowed since the second appeal is still pending and the amendment sought has not attained finality, since the appellate order has been stayed. The decision cited by the learned senior counsel for the petitioner in Rajesh Kumar Aggarwal (Supra) relates to an amendment under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure seeking leave of the court to amend the plaint, but the facts are altogether different.