Ms. Prabha Nandi vs Mrs. Gopa Gupta & Anr.
2014 Latest Caselaw 3628 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 CRP No.153/2010 & C.M.No.14772/2010(stay)

%                                                    AUGUST 11, 2014

MS. PRABHA NANDI                                          ......Petitioner
                          Through:       Mr.Avneesh Garg, Advocate.

                          VERSUS

MRS. GOPA GUPTA & ANR.                                    ...... Respondents

                  Through:               Mr.Shayam Dutt, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. Challenge by means of this petition under Article 227 of the

Constitution of India is to the impugned order of the trial court dated

07.5.2010 which has dismissed the amendment application filed by the

petitioner/plaintiff for amendment of the plaint.

2. Ordinarily, the courts would not refuse amendments, however, the

court below has found, and to which aspect I would also agree, that the

effect of seeking the amendments as prayed for will result in the plaintiff

completely changing the nature of the suit as also the reliefs which are

claimed. In addition to the observations of the trial court, I find that the

petitioner/plaintiff is trying to be clever by half by using confusion of words

that amendments pertain to facts already stated, when in fact the total nature

of the suit was sought to be changed through the amendments in the plaint

and which amendments have been rightly declined. I would like to observe

that if amendments are with respect to facts and reliefs already pleaded as is

sought to be argued by the petitioner/plaintiff then why seek amendments at

all.

3. A reading of the plaint which exists before the filing of the

amendment application shows that the plaintiff, who was the owner of the

suit property bearing no.H-1594, C.R.Park, New Delhi essentially pleaded

that the defendants/respondents had failed to pay the sale consideration of

Rs.4,96,000/-, qua the sale deed dated 29.11.2004 which had been executed

by the petitioner/plaintiff in favour of the respondents/defendants, and

therefore either the sale consideration should be paid or the sale deed should

be cancelled. The specific case pleaded is that the defendants/respondents

had failed to pay the sale consideration and because of this reason the

cancellation of the sale deed was sought and not for any other reason. Also,

the existing plaint shows that since only part of the property was sold, the

defendants/respondents had to make an independent entrance to that portion

of the property which was sold to them. In view of the cause of action

averred in the existing plaint, the following relief clauses were prayed:-

(a) Pass a Decree for recovery of Rs. 4,96,000/- being the sale consideration as mentioned in the Sale Deed dated 29.11.2004 alongwith interest @ 18% per annum from the date of filing of the suit till its realization, in favour of the plaintiff and against the defendants or in the alternative, this Hon'ble Court be pleased to cancel the Sale Deed dated 29.11.2004 and consequently, the possession of the suit property be restored back to the plaintiff.

(b) Pass a Decree for recovery of Rs. 48,000/- in favour of the plaintiff and against the defendants being the arrears of electricity charges.

(c) Award interest @ 18% per annum on the aforesaid amount from the date of filing of the suit till its realization.

(d) Pass as Decree for permanent injunction, thereby restraining the defendants, their agents, servants etc. from parking their vehicle on the drive way as shown in 'Green colour in the Site plan.

(e) Press a Decree for Permanent Injunction thereby restraining the defendants from preventing the plaintiff form parking her vehicle on the said drive way as shown in 'Green' colour in the Site plan and the defendants be restrained from using the said drive way in any manner whatsoever. The defendants be also further restrained from preventing the plaintiff from using the said drive way as shown in the "Green" Colour in the Site Plan.

(f) Pass a Decree for Mandatory Injunction thereby directing the defendants (after making payment of the sale consideration) to the plaintiff to open a separate entrance form the Southern Side the suit property as shown at Point 'A' in the Site Plan and be directed to use the said "entrance" for ingress and egress of the defendants.

(g) Cost of the present proceedings be also awarded in favour of the plaintiff and against the defendants.

(h) Any other or further reliefs which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case be also passed in favour of the plaintiff and against the defendants to meet the ends of justice. It is prayed accordingly."

4. A reading of the averments made in the existing plaint along with the

relief clauses shows that essentially the petitioner/plaintiff admits to the

execution of the sale deed, but seeks cancellation of the sale deed only on

account of non-payment of sale consideration. The relief of cancellation is

alternative to the relief of payment of sale consideration and other monies

along with interest i.e only and if the sale consideration is not paid,

cancellation of the sale deed should take place. Such a cause of action

cannot be converted into a totally different cause of action for complete

cancellation of the sale deed that the sale deed was never to be executed,

although, in law the respondents/defendants can be directed as per Section

55(4)(b) of the Transfer of Property Act,1882 to pay the sale consideration

in case the plaintiff/petitioner proves that the sale consideration was not

paid. Also, once the sale deed would be found to be valid in law, then the

only relief which the plaintiff/petitioner would be entitled to besides the

payment of sale consideration or balance sale consideration is to a

mandatory injunction for creation of an independent entrance by the

respondents/defendants. In my opinion therefore, the amendments sought in

the plaint to totally change the nature of the suit is hence not permissible.

By the proposed amendments the plaintiff/petitioner seeks to convert the suit

which is effectively first for payment of sale consideration and only in the

alternative for cancellation of the sale deed for non-payment of sale

consideration, to one in which the cause of action and the relief is totally

changed to complete cancellation of the sale deed. I may note that it is a

settled law that sale deed is not invalid for alleged lack of payment of

consideration or balance consideration and the only entitlement of a seller in

terms of Section 55(4)(b) of the Transfer of Property Act, 1882 is to claim

unpaid part of sale consideration and for which purpose the seller has a

charge upon the property sold.

5. Counsel for the petitioner has argued that the merits of the matter

cannot be gone into at the time of deciding the amendment application,

however, I note that this argument is in no way connected to the issue of

allowing the amendments in the present case and the amendments have not

been disallowed because on merits the new case which is sought to be

pleaded has been found to be false, but because the new case which is

sought to be pleaded has been found to be completely altering nature of the

suit i.e effectively withdrawing the existing admissions made qua execution

of the sale deed.

6. In view of the above, I do not find any error in the impugned order

disallowing the amendment application, and the petition is therefore

dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J AUGUST 11, 2014 KA