Rizwan And Another vs Aftab Alam
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Allahabad High Court

Rizwan And Another vs Aftab Alam on 2 April, 2025

Author: Jaspreet Singh

Bench: Jaspreet Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:18136
 
Court No. - 8
 

 
Case :- CIVIL REVISION No. - 12 of 2025
 

 
Revisionist :- Rizwan And Another
 
Opposite Party :- Aftab Alam
 
Counsel for Revisionist :- Mohd.Ghayasuddin Khan,Mahmood Ahmad Khan
 
Counsel for Opposite Party :- Bhoopendra Pratap Singh
 
* * * * *
 
Hon'ble Jaspreet Singh,J.
 

1. Heard Shri Mohd. Ghayasuddin Khan along with Mahmood Ahmad Khan, learned counsel for the revisionists and Shri Rajesh Singh, learned counsel, who has put in appearance on behalf of the sole private-respondent.

2. The instant civil revision has been preferred under Section 115 CPC assailing the order dated 28.02.2025, whereby the first appellate Court in Regular Civil Appeal No.19/2024 [Rizwan & Anr. v. Aftab Alam] has rejected an application under Order VI Rule 17 CPC for amendment in the written statement.

3. The submission of the learned counsel for the revisionists is that the private-respondent instituted a suit for specific performance of a contract and permanent injunction, registered as Regular Suit No.640 of 2016. The mother of the revisionists, namely, Smt. Zameela, who was the original defendant and she contested the proceedings by filing her detailed written statement on 05.07.2018 (a copy of which has been brought on record as Annexure No.2).

4. It is urged that in additional pleas from Paragraph-20 till Paragraph-31, the defence as raised by Smt. Zameela was delineated. In Paragraphs-21, 22, 26, 27 and 30, it had clearly been indicated that the plaintiff (the private-respondent herein) was known to the mother i.e. Smt. Zameela and her sons, who are the present revisionists and by taking an advantage of their illiteracy, the agreement of which specific performance is prayed was entered.

5. Earlier, some part of the property had been purchased by the plaintiff, but later in the grab of the said agreement, the remaining property was also sought to be entirely transferred in their name by resorting to proceedings by filing a suit for specific performance.

6. It is further submitted that after due contest, the suit came to be decreed by the Additional Civil Judge (Senior Division), Room No.44, Lucknow, by means of the judgment and decree dated 05.01.2024 which was assailed by the revisionists by filing a regular civil appeal under Section 96 CPC on 08.02.2024.

7. At this stage, the revisionists preferred an application for amendment, wherein it was stated that to meet out the embargo contained in the proviso appended to Order VI Rule 17 CPC, in Paragraph-2 of the said application, it was stated that the plea sought to be projected by proposed amendment could not be taken earlier on account of fact that the revisionists were not advised appropriately by their erstwhile counsel.

8. It is further urged that the proposed amendment sought to be incorporated in the written statement as Paragraph-30-A relates to applicability of Section 20 of the Specific Relief Act, 1963 (for short, 'the Act of 1963') as the other foundational facts were already present in the written statement.

9. It is urged that since the trial Court did not advert to the discretionary powers as contained in Section 20 of the Act of 1963, hence, it was necessary to bring the same on record by filing an application for amendment to press it before the first appellate Court.

10. The first appellate Court, while dealing with the application for amendment has taken a hyper-technical view and rejected the application for amendment which is not in consonance with the provisions of law. Accordingly, the order impugned is bad and deserves to be set aside.

11. In support of his submission, learned counsel for the revisionists has relied upon the decisions of the Apex Court in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and others, (1957) SCR 595 SC; Harcharan v. State of Haryana, (1982) 3 SCC 408; State of A.P. and others v. M/s. Pioneer Builders, A.P., AIR 2007 SC 113 as well as the recent decision of the Apex Court in Dinesh Goyal @ Pappu v. Suman Agarwal (Bindal) and others, decided on 24.09.2024.

12. The thrust of the submission is that the Court while dealing with an application for amendment should apply liberal approach unless any irreparable loss is to be caused to other side.

13. It is submitted that in the dictum of the Apex Court, the principles applicable on an application for amendment has been culled out and if the same are applied to the present case, it would reveal that the first appellate Court committed an error in rejecting the application for amendment.

14. Per contra, learned counsel for the private-respondent has urged that first and foremost, the application for amendment has been moved as an afterthought and almost after one year of filing of appeal under Section 96 CPC.

15. It is further urged that the plea as sought to be raised is relating to Section 20 of the Act of 1963 which is clearly a legal plea and if advanced, the revisionists could incorporate the same in the memo of appeal as a ground rather than to amend the written statement inasmuch as Section 20 of the Act of 1963 is the discretion which the Court even otherwise have to keep in mind while deciding a suit for specific performance.

16. It is also submitted that it is a case where the revisionists are trying to delay the matter and in such circumstances, the dismissal of the application for amendment is appropriate and the order passed by the first appellate Court cannot be faulted. Thus, the revision deserves to be dismissed.

17. Learned counsel for the private-respondent has relied upon a decision of the Coordinate Bench of this Court in S.C.C. Revision Defective No.49 of 2019 [Hari Narayan v. Shanti Devi], decided on 28.05.2019.

18. The Court has heard learned counsel for the parties and also perused the material on record.

19. It is not disputed between the parties that Smt. Zameela, the predecessor-in-interest of the present revisionists had filed her written statement and contested the proceedings on all pleas which may have been available to her in law. The suit came to be decreed in favour of the private-respondent on 05.01.2024, whereafter, the first appeal was filed on 08.02.2024. While the said appeal was pending, revisionists moved an application for amendment on 03.02.2025, wherein in Paragraph-30A was sought to be incorporated in the written statement that the plea of Section 20 of the Act of 1963 be raised.

20. Having considered the aforesaid and looking into the material available on record, it is pertinent to point out that Section 20 of the Act of 1963 is a discretionary power which is vested in the Court. It is for the Court to consider and take note of while either allowing or dismissing the suit for specific performance. Even though if no plea in respect of Section 20 of the Act of 1963 is pleaded by the defendant of the suit yet it will not lead to the conclusion that the trial Court or the first appellate Court will not take note of it while deciding the suit or appeal, as the case may be.

21. Since, the suit was already decreed and the plea is sought to be raised in the first appellate proceedings, however, there is no clear averment except for a vague assertion in the application for amendment indicating that the erstwhile counsel had not taken the proposed plea of Section 20 of the Act of 1963 while filing the written statement. Moreover, there is a clear embargo appended under Order VI Rule 17 CPC which came into effect with the amending Act of 2002. Admittedly, the suit is subsequent thereto and the said proviso appended to Order VI Rule 17 CPC squarely apply in the instant case. A vague assertion in Paragraph-2 of the application for amendment will not permit the revisionists/defendant to overcome the legal hurdle without meeting the said criteria.

22. The first appellate Court having taken note of the aforesaid circumstances has found that neither there was any proper explanation in terms of proviso given by the revisoinists nor there is any explanation as to why the said plea was not taken while the trial was being conducted. More so, when Smt. Zameela had died during trial and the present revisionists were the ones who had contested the proceedings in the trial Court and thereafter and also filed the first appeal.

23. In the aforesaid facts and circumstances, this Court does not find that there is any merit in the submissions advanced by the learned counsel for the revisionists for the two reasons (i) there is no adequate explanation to overcome the rigorous as provided in the proviso appended to Order VI Rule 17 CPC and (ii) moreover the submissions that it was necessary to plead the applicability of Section 20 of the Act of 1963 and in absence of any pleadings, the said requirement of Section 20 of the Act of 1963 cannot be raised is also not correct. Section 20 of the Act of 1963 is invested in the Court and irrespective of a pleading to the effect and relating to Section 20 of the Act of 1963, the Court will have to keep in mind while deciding a matter relating to specific performance of contract.

24. The propositions as mentioned in the decisions cited by the learned counsel for the revisionists in Pirgonda Hongonda Patil (supra), M/s. Pioneer Builders (supra), Harcharan (supra), Dinesh Goyal @ Pappu (supra) cannot be disputed, however, the redeeming facts are that the decisions in Pirgonda Hongonda Patil (supra) and Harcharan (supra) are prior to amendment incorporated in Civil Procedure Code in 2002.

So far as the decisions in Dinesh Goyal @ Pappu (supra) and M/s. Pioneer Builders (supra) are concerned that also do not apply to the instant case.

25. In absence of any cogent explanation given as to why the said plea could not be taken earlier and that the said plea is legal in nature then the same can be pressed in appeal by raising a ground. However, amendment in the written statement after 9 years does not seem correct. This Court does not find any jurisdictional error committed by the first appellate Court nor this Court finds that any irreparable injury will be caused leading to consequent failure of justice if the impugned order is allowed to stand.

26. For all the aforesaid reasons, the revision is misconceived, hence, the instant revision is dismissed at the admission stage itself.

Order Date :- 02.04.2025

Rakesh/-