Kiran Singh vs Pritam Singh & Anr.
2014 Latest Caselaw 1829 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+                              C.S. (OS) No.1387/2011

                                             Decided on: 3rd April, 2014

KIRAN SINGH                                          ...... Plaintiff
                         Through:   Mr. Puneet Agrawal, Advocate.

                           Versus

PRITAM SINGH & ANR.                                    ...... Defendants
             Through:               Mr. J.P. Sengh, Senior Advocate with
                                    Mr. Mayank Yadav, Mr. Sumit &
                                    Ms. Ankita, Advocates.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

I.A. No.6275/2014

1. This is an application filed by the plaintiff under Order VI Rule 17 CPC, seeking permission of the Court to amend the suit from a suit for declaration, permanent injunction and recovery of possession to suit for specific performance.

2. I have heard the learned counsel for the plaintiff and also gone through the record.

3. The plaintiff, an agriculturist, has filed the present suit for declaration, permanent injunction and recovery of possession on the allegation that the plaintiff is a resident of A-5, Asola, Fatehpur Beri, New Delhi. The plaintiff had allegedly entered into an Agreement to Sell with the defendant in respect of agricultural land measuring 2 bighas and

2 biswas bearing khewat No.473/20, khatuani No.873, khasra No.597 (2-

2) situated in the revenue estate of Village-Chattarpur, Tehsil Hauz Khas, Mehrauli, New Delhi, for a total consideration of Rs.22 lacs. It is further stated that documents like, General Power of Attorney, Agreement to Sell, Special Power of Attorney, Deed of Sale, Indemnity Bond, etc. dated 5.4.2011 were executed between the parties. It has been stated that the plaintiff approached the defendant for handing over the suit land but the defendant refused to oblige the plaintiff; consequently, the plaintiff has been constrained to file the present suit. It is alleged by the plaintiff that the defendant has received the entire sale consideration and yet is not handing over the suit property on account of dishonest intention that he wanted an additional amount of Rs.20 lacs. On the basis of aforesaid allegations, the following reliefs are prayed:

i) A decree of recovery of possession in favour of plaintiff and against the defendants and physical possession may be handed over to the plaintiff by the defendants OR

If defendants fail to comply with Hon'ble court order, the court commissioner may be appointed and directed to deliver the physical possession of suit property to the plaintiff.

ii) A decree of declaration in favour of the plaintiff and against the defendants as owner of suit property Agricultural Land measuring 2 bigha and 2 biswas bearing Khewat No.473/20, Khatoni No.873, Khasra No.597 (2-2), situated in the Revenue Estate of Village

Chhattarpur, Tehsil Huaz Khas, (Mehrauli), New Delhi

- 74.

OR

In the alternative, if the court comes to the conclusion that the plaintiff is not entitled to the declaration, permanent injunction and recovery of possession of aforesaid suit property then the amount of Rs.22,00,000/- (Rupees Twenty Two Lakhs Only) along with the cost of the suit with interest @ 18% p.a. from the date of agreement may be awarded to the plaintiff.

iii) A decree of permanent injunction in favour of the plaintiff and against the defendant or their agent/servant/employee from restraining to interfere in the peaceful possession of plaintiff's aforesaid property.

iv) To declare null and void any Agreement to Sell/Sale Deed/Mortgage Deed/Transfer Deed/Gift Deed/Will Deed, which may lead to any damage/violation of terms and conditions of the aforesaid agreement to sell on the aforesaid land in question, retrospectively from the date of Agreement to Sell i.e. form 05.04.2011.

v) cost of the suit."

4. My learned predecessor, vide order dated 4.9.2013 framed the following 15 issues, on the basis of pleadings of the parties:

"1. Whether the suit has been properly valued and appropriate court fee paid thereon? OPP

2. Whether the suit of the plaintiff is maintainable in view of the judicial pronouncement in the matter of "Suraj

Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr." Reported as AIR 2012 SC 206? OPP

3. Whether the plaintiff is entitled to the decree of declaration as prayed for ? OPP

4. Whether the plaintiff is entitled to the decree of possession as prayed for ? OPP

5. Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP

6. Whether the suit of the plaintiff is not maintainable as the defendant No.2 is the owner and in possession of the suit property? OPD

7. Whether the suit of the plaintiff is not maintainable in terms of Section 3 of the Transfer of Property Act?OPD

8. Whether the alleged transaction of the plaintiff is fraudulent and bogus and is made with mala fide motives to usurp the property of the defendant No.2?OPD

9. Whether the plaintiff is guilty of suppression veri and suggestio falsi? OPD

10. Whether there is no privity of contract between plaintiff and defendant No.2? OPD

11. Whether the alleged transaction of the plaintiff is in contravention with the provisions of Delhi Land (Restriction of Transfer) Act? OPD

12. Whether the suit is bad for misjoinder and non-joinder of necessary parties? OPD

13. Whether the suit is barred under the doctrine of ex dolo malo non ortur actio or ex turpi causa non oritur action which means that right of action cannot arise out of fraud or transgression of law? OPD

14. Whether the transaction of the plaintiff is bad as there is no transfer of possession? OPD

15. Relief."

5. However, after perusal of the file, the Court had posed a question to the plaintiff that as one of his main relief is the recovery of sum of Rs.22 Lacs purported to be paid by him to the defendant; whether he would like his relief to be confined only to the recovery of Rs.22 lacs. However, he has informed the court that he would not like his relief to be confined to the relief of recovery. The Court has already framed an issue "Whether the suit as framed is maintainable in view of the Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr.; AIR 2012 SC 206, wherein the Apex Court had held that immovable property cannot be alienated or transferred or conveyed by General Power of Attorney or Agreement to Sell, Will, etc. as was sought to be done normally by the parties. Now, the plaintiff seeks to amend the plaint so as to incorporate the relief of specific performance. I am not purposely referring to the averments which the plaintiff has made in the amendment application or the amended plaint.

6. By permitting the plaintiff to change the suit for possession or declaration to a suit for specific performance, the very nature of the suit

will be changed. One of the fundamental principles of amendment is that in case amendment changes the very basic nature of the suit then such an amendment and the pleading cannot be permitted to be done. Reliance in this regard can be placed on the Division Bench judgment of the Andhra Pradesh High Court in the State of Andhra Pradesh, Rep. by the District Collector, Ranga Reddy District Vs. Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad, and Others; (2013) 1 ALT 653.

7. I, therefore, feel that the application for amendment of the plaint, so as to seek relief of specific performance, cannot be permitted to be done. On the contrary, I feel that the issues, which have been framed by my learned predecessor on the basis of the agreement to sell dated 5.4.2011 are quite exhaustive including the one with regard to the maintainability of the suit itself. I, therefore, disallow the application of the plaintiff.

8. List before the Joint Registrar for fixing up the dates of trial on 27.05.2014, the date already fixed. In the meantime, one last opportunity is granted to file the affidavit.

V.K. SHALI, J.

APRIL 03, 2014 ss