Delhi High Court
J.L. Gugnani vs Kamlender Sinh on 13 April, 2012
Author: Manmohan Singh
* HIGH COURT OF DELHI: NEW DELHI
% Judgment delivered on: 13.04.2012
+ I.A. No.12824/2010 in CS(OS) No.799/2010
J.L. Gugnani .......Plaintiff
Through Mr. Anil K. Kher, Sr. Adv. with
Mr. Ankur Bansal and Mr. Rajesh Pandit,
Advs.
Versus
KAMLENDER SINH ..... Defendant
Through Mr. Manoj Kumar Singh, Adv. with
Mr. Nilava Banerjee and Mr. Arpan Behl,
Advs.
CORAM:
HON'BLE MR JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. By this order, I propose to decide the pending application being
I.A. No.12824/2010 filed under Order VI, Rule 17 read with Section 151
CPC, by the plaintiff.
CASE OF THE PLAINTIFF AS PER PLAINT
2. The plaintiff Mr. Gugnani had entered into an agreement to sell
dated 28.8.2004 with the defendant Kamlendra Sinh for purchase of a
property bearing No. A-9/20 admeasuring 1069 sq yards, situated at Vasant
Vihar, New Delhi. The defendant agreed by virtue of the agreement, to sell
his rights, in the above property to the plaintiff on a sale consideration of
Rs.2,50,00,000/- (Rupees Two Crore Fifty Lac) out of which a sum of
Rs.10,00,000/- (Rupees Ten Lac) were paid.
2.1 The plaintiff alleged that defendant is trying to breach the terms
of the agreement to sell. The plaintiff averred in the plaint that he has paid a
consideration of Rs.10,00,000/- (rupees ten lac) as part of total
consideration or earnest money. The total consideration was fixed at
Rs.2,50,00,000/- (two crores fifty thousand). Part consideration was paid to
the defendants through a cheque bearing No. 269809 drawn on Vijaya
Bank, Barakhamba Branch. The same was acknowledged by the defendant.
2.2 It is stated in the plaint that the said property at Vasant Vihar,
New Delhi, was belonging to Maharaja Surendra Sinhji of Alirajpur,
Madhya Pradesh. The defendant became the owner of the said property by
virtue of a sub-lease dated 17.2.1969, executed by the Government Servant
Servant‟s Cooperative House Building Society Ltd. The said lease was
registered in the Office of the Sub-Registrar, New Delhi, vide document
No.1078 in Additional Book No.1, Vol.2124 pages 67-72 on 20.2.1969.
2.3 Defendant was claiming the ownership of the said property on
the basis of the Will dated 05.11.1984 of Late Sri Surendra Sinh, dated
5.11.1984. Surendra Sinh expired on 29.3.1996.
2.4 By virtue of the Will dated 5.11.1984 the suit property was
bequeathed in the name of defendant and the defendant was competent to
sell the suit property. As per Will of late Surendra Sinh/testator desired that
if the property is rented out or sold then the rental income/sale proceeds will
have to be shared/distributed as per clauses 5.3 and 5.5 of the Will dated
5.11.1984.
2.5 As per agreement dated 28.8.2004 the balance amount would be
payable in fixed mode. Rs.1,15,00,000/- was to be paid on grant of probate
by High Court of Madhya Pradesh, Indore Bench. Remaining amount of
Rs.1 crore was to be paid at the time of execution/registration of the sale
deed in favour of the buyer or his nominee.
2.6 By virtue of the agreement to sell dated 28.8.2004 the defendant
undertook to take all necessary steps for obtaining the probate/letter of
administration etc. The said clauses of the agreement are being reproduced
herein below for the sake of immediate reference:
Article III
3.01 The Seller shall make every effort to ensure that this
agreement is completed towards the logical and i.e.
upto the execution of document of conveyance and
shall take necessary steps to procure all possible
certificates, grants, probate, letter of administration or
sanctions required for the same.
3.02 The seller shall make available to Buyer all papers,
reports, surveys, studies and other information which
seller may have in his possession and which may assist
Buyer in connection with the proof of Will and or the
Probate case.
3.03 Unless and until the seller is prevented by complete
frustration, the seller shall try to effectuate this
agreement.
2.7 By virtue of clause 2.03 the plaintiff also agreed to pay in
addition to the settled consideration to (i) Jyoti Rathore (ii) Thakur
Rampratap Sinhji (iii) Kumar Motisinhji. By virtue of this clause, it was
agreed by the plaintiff and the proportionate amount of settled sale
consideration will be paid to these persons (in accordance with clause 5.5
of the Will dated 5.11.1984). As per plaintiff, in other words, the plaintiff
undertook to discharge the liability of defendant which was imposed by
clause 5.5 of the Will dated 5.11.1984.
3. The case of the plaintiff is that the plaintiff was compelled to file
the suit in reference, as the defendant turned dishonest and sent a letter
dated 08.04.2010 making false allegations and giving cause to the plaintiff
to believe that the defendant was attempting to wriggle out of his
contractual obligations.
4. DEFENDANT'S CASE AS PER WRITTEN STATEMENT
4.1 The defendant in the written statement stated that an agreement
to sell dated 28.08.2004 was executed between them after sometime the
plaintiff persuaded the defendant to cancel the said agreement, as the
plaintiff was facing some financial crunches and needed some money. The
plaintiff also asked for some loan to the defendant and hence the deal could
not be completed between them. The agreement was cancelled mutually on
20.7.2004.
4.2 The defendant states that, he got involved into many court cases
in Madhya Pradesh and as well as in Delhi. Plaintiff approached defendant
for some friendly loan and in return the plaintiff promised and assured that
defendant property would be managed and also promised to mutate the said
property at Vasant Vihar. The plaintiff also assured that the property taxes
would be paid at the concerned department time to time and the defendant
need not worry about anything. Defendant gave a loan of Rs. 40,00,000/- to
the plaintiff through cheque no.81211 dated 20.7.2004.
4.3 The defendant alleges that plaintiff portrayed that all the
litigation would end in 3-4 years. The plaintiff would pay taxes regularly
and for that he would require the original perpetual lease deed dated
17.2.1969 in favour of Surender Sinhji and the original Will dated
05.11.1984. Hence, the plaintiff willfully induced the defendant to hand
over the original documents and still is in illegal possession of the same.
4.4 After coming to know of the true evil intention of the plaintiff,
defendant requested plaintiff to hand over the original documents. But even
after persuasion the plaintiff did not hand over the original documents. Two
letters dated 8.4.2010 was sent by the defendants asking to return the
original documents.
5. During the pendency of the suit proceedings, the plaintiff has
now filed the abovementioned application for amendment of the plaint.
6. It is stated by the plaintiff that in terms of the agreement to sell
that upon grant of probate in the proceedings being CS(OS) No.1/1998 by
the High Court of Madhya Pradesh, Indore Bench in respect of the Will
dated 05.11.1984 left behind by late Sh. Surendra Sinh, the defendant is
required to get the said property mutated in his name and also perform
various other obligations, which the defendant is not completing despite
notice from the plaintiff. The plaintiff, therefore, wishes to make
appropriate pleadings, which became necessary in view of events that had
taken place subsequent to the filing of the suit in reference, to seek
additional reliefs and also incorporate the relevant pleadings in respect
thereof. Therefore, consequential amendments are necessitated, the details
are given in paragraph 9 of the application.
7. The plaintiff submits that to fully and completely adjudicate upon
all the disputes and issues that have arisen between the plaintiff and the
defendant, the plaintiff wishes to bring on record these later events,
developments and facts and also elaborate on the submissions made in the
plaint, rectify the typographical errors and inadvertent mistakes and also
delete and/or amend the pleadings.
8. The plaintiff submits that the amendments sought by the plaintiff
to the suit are bonafide and are necessitated because of the subsequent
facts and developments that have come to the knowledge of the plaintiff in
respect of issues, which are subject matter of adjudication before this court
in the above suit. It is further submitted by the plaintiff that the above
amendments sought by the plaintiff do not change the nature of the reliefs
being sought by the plaintiff and no prejudice would be caused to the
defendant if the above amendments are allowed as these amendments are
being sought to bring on the facts and events, which are already within the
knowledge of the defendant.
9. The details mentioned in para 9 of the application for amendment
are given as under:
9.1 That as per agreements signed and the undertaking arrived at
between the parties, the plaintiff paid substantial amount of
consideration to one Mrs. Jyoti Rathore, who claimed to be a
beneficiary to the property in reference and also part-
consideration was payable in terms of agreement to sell
executed between the parties. It is submitted that Mrs. Jyoti
Rathore is, therefore, a necessary and property party to the
present proceedings to fully and effectually decide upon the
disputes. Accordingly, the plaintiff wishes to add the said Mrs.
Jyoti Rathore as defendant No.2 to the Memo of Parties,
whereas the defendant, Sh. Kamlendra Sinh is referred to as
defendant No.1. Accordingly, the plaintiff be permitted to
amend the Memo of Parties and the amended memo of parties
be read as under :
"J.L. Gugnani
S/o late Sh. Hari Chand Gugnani
r/o 3-B, Nyaya Marg
Chanakyapuri
New Delhi-1100 21 Plaintiff
Vs.
1. Kamlendra Sinh
S/o late Maharaj Fatehsinjhi
r/o Pratap Bhawan
ALIRAJPUR
District Jhabua
Madhya Pradesh
2. Jyoti Rathore
w/o Kamal Pratap Sinj Rathore
Ondwa House
ALIRAJPUR
District Jhabua
Madhya Pradesh Defendants
9.2 That in view of impleadment of Mrs. Jyoti Rathore as
defendant, the plaintiff wants to amend the plaint to refer the
defendant at all places in the plaint, as defendant No.1. accordingly,
the plaintiff be permitted to amend the plaint, at all places to refer the
defendant as defendant No.1.
9.3 That the suit was filed by the plaintiff for specific performance
and permanent injunction. The plaintiff wishes to seek a mandatory
injunction to the defendant No.1. Accordingly, the plaintiff wishes to
amend the heading of the suit and the amendment heading be read as
under :
"SUIT FOR SPECIFIC PERFORMANCE, PERMANENT AND
MANDATORY INJUNCTION"
9.4 That the plaintiff wishes to bring on record the true and
correct facts leading to the signing of the agreement to sell dated
28.08.2004 and the amount paid by the plaintiff towards
consideration to the defendant and other beneficiaries and also state
the facts in sequential order. Accordingly the plaintiff wishes to
replace paragraph 4 to 15 of the plaint as under and the modified
paragraphs be read as under :
"4. That a leasehold property, bearing No.A-9/29,
admeasuring 1069 sq. yards, situated in Vasant Vihar, New
Delhi (hereinafter referred to as „the said property‟), was
allotted on perpetual sub-lease to one Maharaja Surendra Sinh
of Alirajpur, Madhya Pradesh, vide Perpetual sub-lease dated
17.02.1969 duly executed by the Government Servants‟
Cooperative House Building Society Limited, which was duly
registered with the Office of Sub-Registrar, New Delhi, vide
document No.1078, in Addl. Book No.1, Volume No.2124, on
pages 67 to 73 on 20.02.1969.
"5. That in or around October/November 2003, it has been
brought to the notice and knowledge of the Plaintiff that the
Defendant No.1 was intending to sell the said property. During
the discussions/negotiations, it was stated by the Defendant
No.1 that the sub-lessee, Shri Surendra Sinh, died on
29.03.1996 and the Defendant No.1 inherited the said property,
by virtue of Will dated 05.11.1994 left behind by late Shri
Surendra Sinh and that he had already filed a petition for
probate of the said Will and the same, numbered as MCC 329
of 196 (and later on numbered as C.S. No.1 of 1998) was
pending before the High Court of Madhya Pradesh, Indore
Bench.
"6 That while making enquiries with regard to the title of the
Defendant No.1 to the said property, it came to light that the
Defendant No.2 herein had also made a claim to the said
property, by relying upon a Will dated 28th March 1996 of late
Shri Surendra Sinh and that she also filed an application for
grant of letters of administration, being Probate Case No.50 of
1996 before this Court and that the said petition was also
referred to the Indore Bench of the High Court of Madhya
Pradesh and is being heard with the probate petition filed by
the Defendant No.1 herein.
"7. That by virtue of Will dated 05.11.1994 of late Shri
Surendra Sinh, which was propounded and relied upon by the
Defendant No.1, the Defendant No.2 and some other persons
were to be given a share out of the total sale consideration, in
case the Defendant No.1 wishes to sell the said property.
"8. That in view of the above facts and circumstances, the
Plaintiff held a joint meeting with the Defendant Nos.1 and 2 at
Indore on 06th November 2003 and after extensive discussions
it was agreed that both the Defendant were agreeable to sell
their respective rights and interests in the said property and
since court cases have been pending with regard to the
respective claims of the Defendants, the Plaintiff can negotiate
with both the Defendants and enter into separate Agreements.
The terms agreed upon between the Plaintiff and the
Defendants herein were duly recorded vide Purchase
Agreement dated 06.11.2003.
"9. That pursuant to the terms agreed upon vide Purchase
Agreement dated 06.11.2003, the Plaintiff held separate
negotiations with the Defendants and it was agreed as under:
"a) The Plaintiff would purchase the rights, title, interest and
obligations of the Defendant no.1 in the said property and
under Will dated 05.11.1984 for a total consideration of
Rs.2,25,00,000/- and the terms and conditions agreed upon
were duly recorded vide Purchase Agreement dated
09.11.2003. Against this Agreement, the Plaintiff paid a sum of
Rs.10,00,000/- to the Defendant No.1, vide Bank Draft
No.765711 dated 06.11.2003 drawn on Vijaya Bank,
Barakhamba Road, New Delhi, which was duly acknowledged
by him.
b) The Plaintiff would purchase the rights, title and interests of
the Defendant No.2 under the Will dated 28.03.1996 or under
Will dated 05.11.1984, as the case may be, for a total
consideration of Rs.1,85,00,000/-, on the terms and conditions
that were duly recorded vide Agreement dated 23.11.2003.
The Plaintiff paid a sum of Rs.10,00,000/- to the Defendant
No.2 as earnest money at the time of signing this Agreement,
vide Bank Draft No.765712 dated 06.11.2003 drawn on Vijaya
Bank, New Delhi.
"10. That thereafter the Parties have held discussions and
negotiations with regard to finding an amicable solution or
compromise to the cases pending with regard to grant of
probate to the property left behind by late Shri Surendra Sinh.
During these discussions and negotiations, the Plaintiff was
asked to pay further consideration amount to the Defendants
and/or to the beneficiaries named under the Will dated
05.11.1984 by late Shri Surendra Sinh, which the Plaintiff
complied with to conclude the transaction expeditiously.
"11. That accordingly it was agreed that the Defendant No.2
would relinquish all her claims in the said property, such that
the probate petition being C.S. No.1 of 1998, filed by the
Defendant No.1, is decreed and probate is granted to the
Defendant No.1 herein. Upon such a broad settlement arrived
at between the Parties, the Parties hereto have signed further
Agreements as under:
"a) Plaintiff and the Defendant No.1 entered into an
Agreement dated 28.08.2004, whereby it was agreed that the
Plaintiff shall pay the consideration to the Defendant No.1 at
Rs.2,25,00,000/- and in addition the Plaintiff would also pay
the amounts to the beneficiaries named in the Will dated
05.11.1984 left behind by late Shri Surendra Sinh and such
consideration amount shall be settled by the Plaintiff with the
respective beneficiaries and in the absence of such settlement,
the Plaintiff shall pay to these beneficiaries at the rate(s)
mentioned in the Will dated 05.11.1984. These terms were
duly recorded vide Agreement to Sell dated 28.08.2004 signed
between the Plaintiff and the Defendant No.1 and in
confirmation thereof, the Plaintiff paid a sum of Rs.10,00,000/-
to the Defendant No.1, vide Cheque No.269809 dated
28.08.2004, drawn on Vijaya Bank, Barakhamba Road, New
Delhi, which was duly accepted and encashed by the
Defendant No.1. Vide said Agreement to Sell, the Plaintiff is
required to pay the balance consideration of Rs.2.15 crores to
the Defendant No.1, as under:
Rs.1,15,00,000/- on grant of probate by the High Court
at Indore; and
Balance Rs.1,00,00,000/- at the time of execution and
registration of the sale deed of the said property in
favour of the Plaintiff or his nominee before the Sub-
Registrar.
b) Thereafter, the Plaintiff also renegotiated the terms and
entered into another Agreement dated 09.09.2004 with the
Defendant No.2, whereby it was agreed that the Plaintiff shall
pay Rs.1,85,00,000/- to the Defendant for what whatever rights
accruable to her in the said property vide Will dated
05.11.1984 along with all improvements, hereditaments and
appurtenances thereto. The balance consideration agreed to be
paid in different installments, as provided in the said
Agreement.
"12. That it was also agreed amongst the Parties that the
amount paid vide Agreements executed in November, 2003
would be appropriately adjusted against the consideration
payable by the Plaintiff to the Defendants or to the
beneficiaries.
"13. That in confirmation of the above said agreement
between the Parties and in part performance of the Agreement
to Sell dated 28.8.2004, the Defendant No.1 delivered the
original Perpetual Sub-Lease of the said property; death
certificate of late Shri Surendra Sinh and original death
certificate of Princess Rohini Kumari to the Plaintiff, vide letter
dated 12.09.2004.
"14. That the plaintiff has thus paid to the defendants and/or to
the beneficiaries a sum of Rs.71,00,000/- as under :
i) Rs.20,00,000/- was paid to defendant No.1 as
under :
Rs.10,00,000/- vide cheque No.269809 dated
04.09.2003 drawn on Vijaya Bank;
Rs.10,00,000/- vide Demand Draft No.765712 dated
06.11.2003, issued by Vijaya Bank.
ii) Rs.43,00,000/- was paid to defendant no.2, as under :
Cheque/DD No. Date Amount/Rs.
DD 221765712-
83/2003 06.11.2003 10,00,000
Ch.105411 09.11.2003 10,00,000
Ch.121859 21.01.2004 3,00,000
Ch.246995 20.07.2004 3,00,000
Ch.269815 14.09.2005 10,00,000
Cash 7,00,000
iii) Rs.8,00,000/- was paid to Mr. Ram Pratap Singh, as
under :
Cheque/DD No. Date Amount/Rs.
Ch.164981 16.04.2004 2,00,000
Ch.287702 23.10.2004 1,00,000
Ch.287720 11.01.2005 5,00,000
The cheques/demand drafts mentioned above were
drawn on, or issued by, Vijaya Bank.
"15. That in view of Plaintiff paying Rs.43,00,000/- to the
Defendant No.2, it was agreed that the next installment of
Rs.50,00,000/- would be paid against grant of probate and
mutation of the property in the name of Defendant No.1 and
against filing an application by Defendant No.1 for conversion
of leasehold system into freehold."
9.5 That in view of facts stated in Clause 9.5, the Plaintiff wishes
to modify Paragraph 22 of the Plaint and the amended Paragraph 22
of the Plaint be read as under:
"22) That by virtue of Clause 2.03 the Plaintiff also agreed to
pay in addition to the settled consideration to (i) Jyoti Rathore
(ii) Thakur Rampratap Sinhji (ii) Kumar Motisinhji. As stated
above, the Plaintiff negotiated with these beneficiaries and
agreed to pay the consideration amount, in the manner stated in
the preceding paragraphs."
9.6 That with respect to probate petition pending before the High
Court of Madhya Pradesh, Bench at Indore, the Petitioner wants to
elaborate the factual position and accordingly, the Plaintiff wishes to
amend Para 26 of the Plaint and the amended Paragraph be read as
under:
"26) That the Agreement to Sell dated 28.08.2004 signed
between the Plaintiff and the Defendant No.1 requires the
Plaintiff to pay the next installment of Rs.1,15,00,000/- on
grant of probate by the Hon‟ble High Court of Madhya
Pradesh, Indore Bench to the Defendant No.1.
"On the basis of the above said Agreements, the Plaintiff has
performed all his obligations till date and the remaining
obligations with respect to payment of part of the remaining
consideration were to commence only after the Defendant No.1
obtained the order of probate with respect to the Will dated
05.11.1984 of late Shri Surendra Sinh.
"The Defendants, however, delayed the proceedings before the
Hon‟ble High Court of Madhya Pradesh at Indore Bench, due
to various reasons including non-payment of property taxes
relating to the said property etc."
9.7 That the Plaintiff wants to amend Para 29 of the Plaint to
rectify a typographical error and accordingly modified Para 29 of the
Plaint be read as under:
"29) That the plaintiff is in a lawful possession of the above
said documents, which were handed over to the Plaintiff in part
performance of the Agreement to Sell dated 28.08.2004."
9.8 That Paragraphs 32 and 33 of the Plaint deal with the
Proceedings pending before the Madhya Pradesh High court, Indore
Bench, in CS No.1 of 1998. As submitted above the said proceedings
have since been decided by granting a decree in favour of the
Defendant No.1. Accordingly, the Plaintiff wants to amend the
paragraph Nos. 32 to 33 and the amended paragraphs be read as
under:
"32 That by the first week of April 2010, appropriate
steps were taken by the defendants with regard to filing of no
objection by the defendant No.2 for grant of probate to the
defendant No.1 in terms of petition filed by him before the
High Court of Madhya Pradesh, Bench at Indore and
appropriate orders/judgments was still to be passed in the said
proceedings bearing CS No.1 of 1998."
9.9 That in view of the above, paragraph No.34 be read as para 33
and the amended paragraph 33 be read as under :
"33 It is submitted that the plaintiff has duly fulfilled his
obligations arising out of the agreement to sell dated
28.8.2004 and has not defied the said terms in any manner. It
has been clearly stipulated in Clause No.‟1‟ of the agreement
to sell dated 28.8.2004 that the balance sale consideration is to
be paid only after the grant of the probate by the High Court
of Madhya Pradesh Bench at Indore. That stage had still not
arisen because the Probate Case No.CS-1/98 was still to be
adjudicated/decided by the High Court of Madhya Pradesh
Bench at Indore."
9.10 That in view of renumbering, paragraph 35 and 36 of the plaint
be read as paragraph 34 an 35 of the amended plaint.
9.11 That to correct the typographical errors and to elucidate the
facts in detail, the plaintiff wishes to amend para 37 to be read as
para 36 and 37, and the amended paragraph 36 and 37 be read as
under :
"36. That when the probate proceedings pending before
the High Court of Madhya Pradesh, Indore Bench were coming
to an end, the defendant No.1 became dishonest, as is evident
from his letter dated 08.04.2010, whereby the defendant No.1
made false and frivolous allegations by alleging that he
delivered the original will dated 05.11.1984 of late Sh.
Surendra Sinh and that the plaintiff did not take any steps to
return the same. It is pertinent to state that vide letter dated
12.09.1994 the plaintiff was given only the original perpetual
sub lease and the original will was never given to the plaintiff.
The defendant No.1 also made totally false and baseless
allegations with regard to not taking case of all pending
litigations on his behalf and for grant of necessary steps for
grant of probate.
"37. That it is pertinent to state under the agreement to sell
dated 28.8.2004, the plaintiff was not required to pursue any
matter in Delhi with respect to the said property or in respect
of grant of probate. In fact, the plaintiff did has best in having
an understanding between the defendants with regard to the
succession and on the basis of the terms agreed upon, the
defendant No.2 agreed to relinquish her claims and have the
probate granted to the defendant No.1 in terms of will dated
5.11.1984, as has been duly recorded vide purchase agreement
dated 09.09.2004 signed between the parties and in fact the
probate petition proceeded in terms of the said
understanding. It was, however, the defendant No.1, who
dragged on the matter by failing to pay the taxes and other dues
to the Municipal Authorities and various other parties."
9.12 That in view of clarifications provided hereinabove, the
plaintiff wishes to delete paragraphs 41 to 45 of the plaint and
accordingly the plaintiff seeks leave to delete these paragraphs.
9.13 That plaintiff wishes to add the following additional paragraphs
to the plaint to bring on record the events that have taken place
subsequent to the filing of the above suit and the plaintiff be permitted
to add the following paragraphs as paragraphs 41 to 45 of the
amended plaint.
"41. That it transpired that the defendant No.1 became
dishonest and was attempting to sell the said property to some
third parties for a hefty consideration, in total disregard to the
terms of the agreement dated 08.04.2004, as is evident from
his letter dated 08.04.2010, which incidentally coincided with
the application filed/statement given by defendant No.2 thereby
giving her no objection to the grant of probate to the defendant
No.1 in respect of Will dated 05.11.1984 of late Sh. Surendra
Sinh.
In these circumstances, the plaintiff was left with no option
but to initiate the present proceedings against the defendant
No.1, before this Court, being CS(OS) No.799/2010, for
specific performance and permanent injunction. It is submitted
that the defendant No.1 duly appeared in the said suit
No.799/2010 and has been well aware that the plaintiff has
been and is still ready and willing to perform his part of the
obligation to complete the sale transaction in terms of the
agreement to sell dated 28.08.2004.
"42. However, though under an obligation to do so, the
defendant No.1 did not communicate anything about the
decision of the court in the probate petition pending before the
High Court of Madhya Pradesh, Indore Bench. As such, the
plaintiff made independent enquiries and it came to the notice
of the plaintiff that the High Court at Indore has granted
probate to the defendant No.1, in CS No.1 of 1998, vide
judgment dated 07.05.2010. The plaintiff thus applied for
certified copy of the said judgment and upon confirmation of
grant of probate to the defendant No.1, though the defendant
No.1 failed to inform the plaintiff about the said judgment,
the plaintiff, vide his letter dated 09.06.2010, addressed to the
defendant No.1;
a) Sent the payment of Rs.1,15,00,000/- to the defendant
No.1, vide cheque No.577902 dated 09.06.2010, drawn on
Vijaya Bank, in favour of the defendant No.1;
b) Informed the plaintiff that the sum of Rs.51,00,000/- paid to
the defendant No.2 and Mr. Ram Pratap Singh can be
adjusted against the consideration payable to them;
c) The plaintiff has performed his part of the obligation till
date and has always been and is still ready and willing to
perform remaining part of the obligations; and
d) Requested the defendant No.1 to cooperate with the
plaintiff in completing the transaction by having the said
property mutated in his name in the records of Delhi
Development Authority and inform the plaintiff, so that the
plaintiff can initiate steps to have the leasehold rights in
the said property converted to freehold, in terms of the
agreement to sell. The defendant No.1 duly received the
said letter and the part payment of Rs.1,15,00,000/-
"43. That in addition to paying the balance consideration to
the defendant No.1, the plaintiff will have to pay additional
consideration to the defendant No.2 and the beneficiaries
under the Will dated 05.11.1984, which the plaintiff agrees
and undertakes to pay to the respective parties, as and when
the said payment becomes due and payable to them.
"44. That the defendant No.1, who has since received the said
letter, has returned it back and has thus refused to perform his
part of the obligations under the said agreement to sell dated
28.8.2004.
"45. That seeing the past conduct of the defendant No.1, the
plaintiff apprehends that the defendant No.1 has no intention
to honour his contractual obligations by performing his part of
obligations under the agreement to sell dated 28.8.2004. As
such, the plaintiff is left with no option but to file the present
proceedings to seek specific performance of the agreement to
sell dated 28.8.2004.
9.14 That the plaintiff wants to amend paragraph 47 of the plaint to
elaborate the factual position and to bring on record the various
obligations the defendant No.1 is required to perform to complete
the sale transaction. Accordingly, the plaintiff be granted leave to
amend the paragraph 47 and the amended paragraph 47 be read as
under :
"47. It is submitted that as per the clause „8.01‟, the sale deed
in respect of the property in question can be executed only
after the grant of probate in the name of the defendant/after
mutation/after conversion of the property into freehold.
Therefore, the remaining terms of the agreement cannot be
completed till the probate is granted in the name of defendant.
Otherwise the plaintiff is always ready and willing to perform
his part of the contract.
To take forward and complete the sale transaction in terms of
the said agreement to sell, the defendant No.1 is required to
have the said property mutated in his name in the records of
Delhi Development Authority and thereafter have the
leasehold system of the property converted to freehold, for
which the plaintiff will have to move appropriate application
and deposit the requisite fee. Since the defendant No.1 is not
coming forward, the plaintiff seeks a decree of mandatory
injunction thereby requiring the defendant No.1 to perform
these obligations leading to execution of the sale deed in
favour of the plaintiff or his nominee, in terms of agreement to
sell dated 28.08.2004."
9.15 That the plaintiff wishes to place on record the breaches
committed by the defendant No.1 and also to highlight the dishonest
intentions of the defendant No.1 and accordingly the plaintiff be
granted permission to amend paragraph 48 of the plaint and the
amended paragraph 48 be read as under :
"48. That the plaintiff has the reasons to believe that the
defendant is trying to enter into some secret deal/secret
arrangement with some builder, otherwise there is no
reason/occasion for writing such kind of letter dated
08.04.2010 to the plaintiff. The defendant No.1 also did not
come forward to perform his part of the obligations even after
a letter was sent to the defendant No.1 together with a cheque
of Rs.1.15 cores towards part consideration by the plaintiff, in
part performance of his obligations under the agreement to sell
dated 28.08.2004."
9.16 That in view of subsequent events and additional cause of
action arisen, the plaintiff wishes to amend the para 50 relating to
cause of action and the amended paragraph 50 be read as under :
"50. That the cause of action for filing the present suit has
arisen in favour of the plaintiff and against the defendant.
The cause of action first arose in the month of August 2004
when the terms were negotiated and agreement to sell dated
28.8.2004 was entered into between the plaintiff and the
defendant and the plaintiff had also paid Rs.10,00,000/-
(Rupees Ten Lac Only) to the defendant as Earnest Money out
of the total agreed sale consideration of Rs.2,25,00,000/-.
The cause of action also arose on account of the fact that on
28.8.2004, the defendant also undertook/assured that after
disposal of the probate case No.CS-1/98 after mutation and
after conversion of property into freehold, the sale deed will
be executed in the name of plaintiff. The cause of action also
arisen on account of the fact that the defendant will take all
necessary steps for obtaining the probate/letter of
administration. That cause of action also arose when by the
letter dated 12.09.2004, the original lease deed and other
documents (mentioned therein) were given to the plaintiff by
the defendant through his attorney Major General M.S.
Sandhu (Retd.).
"The cause of action on all such dates as and when the
plaintiff enquired about the probate case and the defendant
always conveyed that the said probate case pending in the
High Court of Madhya Pradesh Bench at Indore is being
contested vigorously by the defendant and the defendant also
assured the plaintiff that as and when the probate case is
decided/adjudicated, the necessary intimation will be given to
the plaintiff and the needful will be done."
"That the cause of action to file a suit for specific
performance of the case arose in favour of the plaintiff when
the defendant No.1, instead of performing his part of the
obligations, sent a letter dated 08.04.2010 making false and
baseless allegations with a view to wriggle out of the
contractual obligations and in an attempt to create third party
interest or alienate the property in reference in violation of his
contractual obligations. The cause of action also arose on
09.06.2010 when the plaintiff sent the part payment of
Rs.1,15,00,000/- in part performing of his obligations and
informed the defendant No.1 that he is ready and willing to
perform his remaining obligations upon defendant No.1 getting
his name mutated in the records of the DDA. The cause of
action to file the suit for specific performance also arose on
the date when the defendant No.1 received the said letter dated
09.06.2010 with part payment, but failed to respond to the
same. The cause of action to seek specific performance of the
agreement to sell is still continuing in favour of the plaintiff and
against the defendant No.1. The cause of action to seek a
decree of mandatory injunction has arisen in favour of the
plaintiff and against the defendant No.1 when the plaintiff
called upon the defendant No.1, vide letter dated 09.06.2010,
to get the said property mutated in his name in the records of
Delhi Development Authority and inform the plaintiff; but the
defendant No.1 failed to respond and/or take any action in
respect thereof till date.
"The cause of action is recurring and continuing unless and
until the defendant performs his part of the contract under the
agreement to sell dated 28.8.2004 executed between the
parties and unless and until the defendant is not permanently
restrained from entering into any deal/secret deal or
arrangement with some builder/person and from creating 3rd
party interest in favour of any other person except the plaintiff.
"The cause of action is continuing as the plaintiff is always
ready and willing to perform his part of the contract. The
cause of action is continuing as the defendant is trying to defy
the agreement dated 28.8.2004. The cause of action is
continuing as the defendant wrote letter dated 8.4.2010 with a
dishonest intention."
9.17 That as submitted above the consideration payable to the other
beneficiaries under the said agreement to sell was not taken into
account while calculating the value for court fee and jurisdiction
and also the plaintiff needs to pay the court fee for the additional
relief of mandatory injunction. Accordingly, the plaintiff wishes to
amend the paragraph 52 and the amended para be read as under :
"52. That the plaintiff states that the agreement to sell dated
28.8.2004, the plaintiff has agreed to pay Rs.2,25,00,000/- to
the defendant no.1; Rs.22,50,000/- (being 10% of
consideration) to one Thakur Rampratap Sinh of Kod;
Rs.22,50,00,000/- to one Kumr Motisinh of Kathiwada; and
Rs.1,85,00,000/- to the defendant No.2 herein. Thus the total
consideration payable in respect of the sale transaction to the
defendants and the beneficiaries named in the said agreement
to sell comes to Rs.4,55,00,000/-.
That the plaintiff values the present suit for purpose of court
fee and jurisdiction as under:
a) for decree of specific Rs.4,55,00,000/-
performance to direct the
defendants to perform his
obligations under
agreement to sell dated
28.08.2004 :
b) for decree of mandatory Rs. 200/-
injunction to directions to
defendant No.1 :
c) for decree of permanent Rs. 200/-
injunction to restrain
defendant No.1 :
The plaintiff is affixing appropriate court fee on the relief of
specific performance. The value of suit for purpose of jurisdiction is
Rs.4,55,00,400/-.
9.18 That the plaintiff wants to amend prayer clause by adding a
new prayer relating to mandatory injunction and accordingly the
plaintiff be permitted to add Clause II(a) to the prayer clause as
under:
"II(a) pass a decree of mandatory injunction against the
defendant No.1, thereby directing him to get the said property
bearing No.A-9/29, plot of land admeasuring approx. 1069 sq.
yards and the building constructed thereon, situated at Vasant
Vihar, New Delhi, mutated in his name in the records of the
Delhi Development Authority and further to cooperate with the
plaintiff in having the leasehold rights in the said property
converted to freehold by signing the necessary application and
other relevant documents etc. as may be required by Delhi
Development Authority from time to time."
10. The plaintiff submits that according to Will dated 5.11.1984 by
Late Surender Sinhji, the defendant was required to get the said property
mutated in his name and do various other obligations. The defendant is not
complying with the same despite notice from the plaintiff. As per agreement
signed/ undertaking arrived at between the parties, Mrs. Jyoti Rathore who
claims to be a beneficiary, hence the plaintiff wishes to implead Mrs. Jyoti
Rathore as party to the suit, as defendant no. 2 and accordingly the cause
title of the suit shall be amended by the plaintiff. The plaintiff wants to
amend the heading of the suit as "suit for specific performance permanent
and mandatory injunction.
11. The plaintiff submits that no prejudice would be caused to the
defendant if he above amendments are allowed by this Court as these
amendments are being sought to bring on the facts and events, which are
already within the knowledge of the defendant. Therefore, the plaintiff be
granted the permission to place on record the amended plaint, incorporating
the above amendments, court fee and the amended memo of parties.
12. Defendant has strongly opposed the prayer made in the
application and submits that the plaintiff moved an application under Order
6 Rule 17 only after defendant have filed their written statement wherein the
defendant has given true facts and real picture of the case. As per
defendant, the plaintiff filed Order 6 Rule 17 CPC in order to change the
facts of entire case by virtue of present application. The defendant submits
that the plaintiff has taken totally inconsistent facts which were contained in
earlier plaint. The amendment sought by the plaintiff if allowed would also
prejudiced the case of the defendant.
13. Defendant denies that any agreement was ever entered or any
consideration against the sale of suit property was given for the same. It is
submitted that the amount of Rs. 71,00,000/- (as alleged by the plaintiff) is
paid by the plaintiff. It is rather submitted by the defendant that a sum of
Rs.40,00,000/- was given to the plaintiff which plaintiff has not returned till
date and in return plaintiff is trying to usurp the property of the defendant.
The alleged agreement as well as in the original plaint, as per the case of the
plaintiff himself merely Rs. 10 lacs in advance payment was made by the
plaintiff but in the present application, the plaintiff has totally changed his
stand.
14. Defendant submits that as plaintiff omits to sue in respect of
mandatory injunction and if he relinquishes any portion of his claim under
Order II Rule 2 CPC he shall not be afterwards allowed to sue in that
respect of that portion so omitted or relinquished. Sub-rule (3) further
provides that a person entitled to one or more reliefs shall not afterwards sue
for any reliefs so omitted. Hence defendant objects to the application moved
by the plaintiff under Order 6 Rule 17 of the Code by adding the prayer of
mandatory injunction.
15. The defendant submits that the plaintiff by this present
application wants to implead Ms. Jyoti Rathore as defendant No.2 which is
not possible as Ms. Jyoti Rathore is not the owner of the property and is
also not a party to the alleged agreement. Defendant No.1 is the sole owner
is the property. Ms. Jyoti Rathore is merely one of the beneficiary of the
Will dated 5.11.1984. Ms. Jyoti Rathore indeed had produced a Will but
later on she recused herself from the probate proceeding before the Hon‟ble
High Court of Madhya Pradesh. Jyoti Rathore has no locus to be a party in
this present suit. The fact of grant of probate is already mentioned in the
written statement.
16. The defendant has placed reliance on two judgments Revajeetu
Builders & Developers Vs. Narayanaswamy (2009) 10 SCC 84 wherein it
was held by the Supreme Court " in our considered view, Order 6 Rule 17
is one of the important provisions of the CPC, but we have no hesitation in
also observing that this is one of the most misused provision of the Code
for dragging the proceedings indefinitely, particularly in the Indian courts
which are otherwise heavily over burdened with the pending cases. All civil
courts ordinarily have a long list of cases, therefore the Courts are
compelled to grant long dates which causes delay in disposal of the cases.
The applications for amendment lead to further delay in disposal of the
cases". The defendant also relied on Kisandas Vs. Rachappa Vithoba
reported in (1909) 33 Bom 644. It was observed by Batchelor J. that "from
the imperative character of the last sentence of the rule it seems to me
clear that, at any stage of the proceedings, all amendments ought to be
allowed which satisfy the two conditions (a) of not working in justice to the
other side and (b) of being necessary for the purpose of determining the
real questions in controversy between the parties."
17. In nut-shell, by means of amendment, the plaintiff has broadly
sought the following amendments :
I
a) The plaintiff claims that he paid to defendant a sum of Rs.
71,00,000/- however it was mentioned in the plaint that only Rs. 10,00,000/-
was paid towards consideration or part payment.
b) The plaintiff valued the suit at Rs. 2,25,00,000/- being agreed to
pay the defendant. The plaintiff also submitted that plaintiff agreed to pay
some additional consideration to the beneficiaries of the defendant.
c) There are typographical errors in the plaint. At Page 37 the read
should read as 8.4.2010 instead of 8.10.2004. At para 38 the "duly" should
be read as "duty"
d) The plaintiff wishes to delete the pleadings relating to the
Probate Case baring CS 1/98 pending before the High Court Madhya
Pradesh Indore Bench. The plaintiff wishes to delete the superfluous
pleadings and wishes to replace the same with the present status of the case.
II
i) The change made in para 5 of the plaint - around October-
November 2003 to the notice and knowledge that the defendant
was intending to sell the property. Sri Surendra Sinhji expired on
29.3.1986 and defendant no.1 inherited the property by virtue of
Will dated 5.11.94 and defendant no.1 filed a probate case before
the High Court of Madhya Pradesh, Indore Bench.
ii) Para 6- while making enquires with regard to title of Defendant
no. 1 it came to light of the plaintiff that the defendant no.2 also
claimed exclusive rights over the property relying upon a Will
dated 28th March 1996.
iii) Para 7- by virtue of the Will dated 5.11.1994 which was relied
upon by defendant no.1, defendant no. 2 and some other persons
were to be given a share out of the total sale consideration.
iv) Para 8 - plaintiff had joint a meeting with defendant no. 1 & 2 at
Indore on 6th November 2003. After extensive meeting, it was
agreed by both the parties, that both defendant could sell their
respective rights and interest in the said property since court cases
were pending.
v) Para 9- apart from the above purchase agreement dated 6.11.2003
plaintiff held separate negotiations with defendants. They are:-
a. Plaintiff would purchase rights, title, interest and obligations of
defendant no. 1 for total consideration of Rs. 2, 25,00,000/-
terms and conditions were recorded vide agreement dated
9.11.2003. Plaintiff paid a sum of Rs. 10,00,000/- vide Bank
Draft No. 765711 dated 6.11.2003 drawn on Vijaya Bank,
Barakhamba Road.
b. Plaintiff would purchase the share of defendant no.2 for a total
consideration of Rs. 1,85,00,000/- which under Will dated
5.11.1984. Terms and considerations vide agreement dated
23.11.2003. Plaintiff paid 10lacs vide draft no. 765712 dated
6.11.2003 drawn on Vijaya Bank.
vi) Para 10- Parties held discussions and negotiations for amicable
solution/compromise to case pending (probate case). Plaintiff
asked to pay further consideration.
vii) Para 11- it was agreed that defendant no.2 would relinquish all
her rights in the said property. Probate case was decreed and
probate granted to defendant no. 1. Parties further signed
agreements.
Plaintiff and defendant entered into agreement dated
28.8.2004 plaintiff shall pay consideration to defendant no. 1 Rs.
2,25,00,000/- and also pay in addition the beneficiaries named in
the Will dated 5.11.1984. Plaintiff paid 10,00,000/- to defendant
dated 28.8.2004 vide cheque no. 269809 drawn on Vijaya Bank.
Remaining amount to be paid of Rs. 1,15,00,000/- grant of probate
by High Court, Indore Bench and balance of Rs. 1,00,00,000/- at
the time of registration/ execution of sale deed of the said property
in favour of the plaintiff.
viii) Para 12- it was agreed that agreement dated November 2003
would be adjusted against consideration payable.
ix) Para 13- defendant no.1 delivered original perpetual sub-lease of
the said property. Death certificate of Sri Surendra Sinhji and
Princess Rohini Kumari vide letter dated 12.9.2004 to the plaintiff.
x) Para 14- payments made defendant/beneficiaries a sum of
(i) Rs. 71,00,000/-. Rs. 20,00,000/- paid to defendant no. 1. Rs.
10,00,000/- by way of cheque no. 269809 dated 4.9.2003. Rs.
10,00,000/- vide DD No. 76571 dated 6.11.2003.
(ii) Rs. 43,00,000 to defendant no.2
(iii) Rs. 8,00,000/-to Ram Pratap Sinhji
xi) Para 15- plaintiff paid Rs. 43,00,000/- to defendant no.2 and it
was agreed that next installment of Rs. 50,00,000/- would be paid
against filing application by defendant no. 1 for conversion of the
said property from leasehold to freehold.
III It appears from the application that the plaintiff also wishes to
bring on record the facts leading to the agreement to sell dated 28.8.2004
and the amount paid by plaintiff to the defendant/beneficiaries. Hence
plaintiff wishes to replace para 4 to 15 of the plaint.
Correction of facts in various paras of plaint
i) Para 22- by virtue of Cl. 2.03, the plaintiff also agreed to pay in
addition to the settled consideration to Mrs. Jyoti Rathore, Thakur
Ram Pratap Sinhjiji and Kuamr Motinshinji.
ii) Para 26- agreement to sell dated 28.8.2004 signed between plaintiff
and defendant no.1, plaintiff requires to pay installments of Rs.
1,15,00,000/-. Apart from these mentioned paragraphs the plaintiff
also seeks to amend para 29,32,33.
iii) Para 32- the defendant took appropriate steps on April 2010 with
regards to filing of no objection by defendant no. 2 for grant of
probate in Probate Case No. 1/98.
iv) Para 41 to 45 of the plaint is deleted and in its place following new
paras have been added.
Para 41- defendant no. 1 was dishonest and was planning to sell
the said property to some third party for a hefty consideration with
disregard to the agreement dated 28.8.2004. The plaintiff was left
with no option but to file this instant suit CS (OS) No. 799 of 2010
for specific performance. Plaintiff states that he is still willing to
perform all his obligations.
Para 42- the defendant did not inform plaintiff about the probate
case. The plaintiff on enquiry that probate has been granted on
favour of defendant no. 1 vide judgment dated 7.5.2010. Plaintiff
applied for certified copy. Plaintiff through his letter dated
9.6.2010 addressed to the defendant requesting him to perform his
contractual obligations and also enclosed along with that letter a
cheque of Rs. 1,15,00,000/- vide cheque no. 577902 dated
9.6.2010.
Para 43, 44 and 45 have been deleted.
v) Para 47- the plaintiff wants to bring on record factual position the
various obligations of defendant no. 1 as per cl. 8.01. Sale deed can
only be executed only after grant of probate in name of defendant
after mutation and conversion of the property to freehold. Hence
remaining parts of the contract cannot be completed in obligation.
vi) Defendant no. 1 is not coming forward to mutate the said property.
Therefore plaintiff seeks decree of mandatory injunction against
defendant no. 1 to perform all obligations.
vii) Para 50- the cause of action arose on August 2004 when the terms
were negotiated and agreement to sell dated 28.8.2004 was entered
into between plaintiff and defendant.
viii) Cause of action arose on account of the fact that on 28.8.2004,
defendant undertook/ assured that after disposal of the probate case
mutation/conversion of the property would be done by him and sale
deed will be executed in the name of plaintiff. Cause action arose
when defendant undertook to obtain probate and Letter of
Administration. Cause of action also arose on when letter dated
12.9.2004 and original lease deed and other documents were given by
authority of defendant through his attorney Major General M.S.
Sandhu (Retd).
ix) Cause of action arose for suit for specific performance when
defendant no. 1 sent a letter dated 8.4.2010 making false and baseless
allegations. The plaintiff also states that cause of action also arose on
9th of June 2010 when plaintiff sent the part payment of Rs.
1,15,00,000/- and no reply was sent by defendant No.1.
18. The Supreme Court has laid down principles that while allowing
or rejecting the application like whether the amendment like whether the
amendment sought is imperative for proper and effective adjudication of the
case or whether the application for amendment is bonafide or malafide or
the amendment should no cause such prejudice to the other side which
cannot be compensated adequately in terms of money or whether the
proposed amendment or constitutionally or fundamentally changes the
nature or character of the case or as a general rule, the court should decline
amends if a fresh suit on the amend claim would be barred by limitation on
the date of application. Hence it is clear that plaintiff want to get rid of the
facts and admission which plaintiff has stated already in the plaint.
19. Code of Civil Procedure provides Order 1 Rule 10 which states
that if any plaintiff wants to implead any new party he will have to move an
application under the said provision. But in the present case, the plaintiff has
not moved any application as required under the said provision to implead
Ms. Jyoti Rathore as a new party in his application under Order 6 Rule 17.
Admittedly, she is not a party to the agreement to sell as she has not signed
the said agreement. She is merely one of the beneficiary to the Will. As
far as this case is concerned, she is only a stranger to the contract, hence,
she cannot be impleaded as party to the suit for specific performance who is
not a signatory to the agreement or confirming party. Thus, the prayer of
the plaintiff to add her as defendant No.2 cannot be granted.
20. In the case of Bharat Karsondas Thakkar Vs. Kiran
Construction Co & Ors. AIR 2008 SC 2134 it was held by the Supreme
Court that amendment of plaint cannot be allowed if it completely changes
the nature and character of the suit i.e. suit for specific performance of an
agreement to declaration of title and possession followed by prayer for
specific performance of an agreement for sale. The Supreme Court further
held that a third party to a contract could not be added so as to convert the
suit of one character into a suit of a different character.
21. In the present case if both plaints i.e. original plaint and
proposed plaint filed by the plaintiff are read together, it is clear that plaint
wants to completely change the nature and character of the suit. By means
of amendment the plaintiff wishes to change, alter and add the facts which
would amount to change almost the entire plaint. The details of the same
are given as under :
(a) The plaintiff wants to add third party who was not the signatory to the
agreement.
(b) The plaintiff wants to change the amount of consideration from
Rs.10 lac to Rs.71 lac , the said statement is completely contrary to
para 1 of the plaint and agreement dated 28.8.2004 itself.
(c) The plaintiff wants to bring facts towards purchase agreement dated
06.11.2003 which were not pleaded in the original plaint.
(d) The plaintiff wants to bring the facts about the payment made by the
plaintiff prior to the agreement dated 28.8.2004 to the beneficiaries.
(e) The plaintiff wishes to bring additional prayer of mandatory
injunction and also wants to change the date of cause of action.
22. As far as the amendment of typographical errors or deletion of
facts about the pendency of probate and superfluous pleading are
concerned, the same are allowed as amendment of such nature can be
granted at any stage before framing of issues.
23. As far as other amendments sought by the plaintiff are
concerned, as already mentioned, in my view, it would fundamentally
changes the nature and character of the matter and would definitely
prejudice the case of the defendant for the purpose of determining the real
controversy between the parties. No party can be allowed to misuse the
said provision.
24. In the present case, admittedly earlier the plaintiff filed the
application being I.A. No.9430/2010 under Order XXIII Rule 1 (3) read
with Section 151 Code of Civil Procedure, 1908 for withdrawal the present
suit with liberty to institute a fresh suit in respect of issues and disputes
that have arisen in connection with the suit property at the subsequent stage.
However, the said application was withdrawn by the plaintiff. It was so
recorded in the order dated 21.07.2010. I feel, still in case the claims of
plaintiff on subsequent events are not barred by law, he may take necessary
steps in accordance with law. Such action if taken would have to be
considered as per its own merit.
25. Under these circumstances, I am of the considered view that the
plaintiff‟s application for amendment cannot be allowed except he is
allowed to amend the typographical errors, deletion of facts about the
pendency of probate proceedings and to add the factum of grant of probate
in CS(OS) No.1/1998 on Will dated 05.11.1984 and the fact about the
defendant who is, according to plaintiff, not fulfilling his obligations as per
agreement despite of notice issued by the plaintiff as well as superfluous
pleadings as alleged by the plaintiff. Rests of the amendments sought by
the plaintiff are disallowed as to my mind it would change the nature and
character of the suit.
26. The application being I.A. No.12824/2010 is accordingly
disposed of under these observations. Only limited prayer made in the
application is allowed.
CS(OS) No.799/2010
27. Let the amended plaint be filed within two weeks. Written
statement thereto be filed within four weeks thereafter. Replication, if any,
be filed within three weeks thereafter. List before the Joint Registrar on
18.07.2012 for admission/denial of the documents.
MANMOHAN SINGH, J.
APRIL 13, 2012
