Rajesh Kumar vs Kulbhushan & Others
2023 Latest Caselaw 15260 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA Nos. 181 and 182 of 2021

.

Reserved on: 14.09.2023

Date of Decision: 4th October, 2023

RSA No. 181 of 2021

Rajesh Kumar ....Appellant Versus

Kulbhushan & others ....Respondents RSA No. 182 of 2021 Sunder Lal r ...Appellant

Versus Kulbhushan & others ...Respondents

Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting? No.

For the Appellants : Ms. Sunita Sood and Ms. Suchitra Sen, Advocates in both the appeals.

For the Respondents : Mr. Sandeep Sharma, Advocate, for respondents No. 1 to 4 in both appeals.

None for Respondent No.5.

Whether reporters of the local papers may be allowed to see the judgment? Yes

Rakesh Kainthla, Judge.

The present appeals are directed against the judgment

.

and decree dated 27.07.2021, passed by learned District Judge,

Mandi, District Mandi, H.P., vide which the appeal filed by the

appellants (defendant before the learned Trial Court) was

dismissed. (Parties shall hereinafter be referred to in the same

manner as they were arrayed before the learned Trial Court for

convenience).

2. to Briefly stated, the facts giving rise to the present

appeals are that the plaintiffs filed a Civil Suit seeking specific

performance of the contract dated 31.10.2007 and a permanent

prohibitory injunction restraining the defendants from

interfering in the possession of the plaintiffs. A declaration that a

settlement deed executed by defendant no.1 in favour of defendant

no.2, was wrong, illegal, null and void was also prayed.

3. It was asserted that defendant no. 1 is the owner of the

land bearing Khsara No. 1306. He agreed to sell the land bearing

Khasra No.1306/1, measuring 160-12 Sq. meters, situated in

Mauza Tarna, Tehsil Sadar District Mandi, (hereinafter to be

referred as the suit land) to Panna Lal, predecessor-in-interest of

the plaintiffs. Panna Lal paid a sum of ₹3,00,000/- (Rupees Three

Lakhs), vide cheque dated 18.10.2007, drawn in favour of the

.

Registrar General of High Court of H.P. He also paid a sum of

₹6,50,000/- (Rupees Six Lakh Fifty Thousand) on 31.10.2007. The

rest of the amount was to be paid at the time of execution of the

Sale Deed. The defendant delivered the possession of the suit land

to the predecessor-in-interest of the plaintiffs. The suit land was

mortgaged with Mandi Urban Co-operative Bank Ltd. Mandi, H.P.

Defendant No.1 filed a CMP No. 1303 of 2007 before this Court

seeking permission to sell the land. This application was allowed

subject to the condition that the entire sale proceeds would be

deposited before the High Court. The defendant approached the

plaintiffs in compliance with the order passed by the Hon'ble High

Court. The application was disposed of on 10.01.2008 and the

permission to sell the land was not granted; however, a direction

was issued to the Mandi Urban Co-Operative Bank Ltd. to auction

the land. The defendant executed another agreement dated

24.04.2009 for the enlargement of the time for the execution of

the Sale Deed. After the death of Panna Lal plaintiffs requested

defendant no.1 to receive the balance sale consideration and to

execute the Sale Deed in their favour but he did not execute the

Sale Deed. The plaintiffs made verification from the bank and

.

found that the High Court had decided the matter on 16.11.2011,

directed the defendant to pay a sum of ₹5,00,000/- (Rupees Five

Lakhs), out of which ₹ 2,00,000/- (Rupees Two Lakhs) were to be

deposited within a month and the remaining amount of ₹

3,00,000/- (Rupees Three Lakhs) was to be paid within four

months. The plaintiffs offered to pay an amount of ₹3,00,000/-

(Rupees Three Lakhs) to the defendant and asked him to get the

mortgage redeemed. The plaintiffs sent a legal notice asking him

(defendant No.1) to execute the Sale Deed after receiving the

balance sale consideration. The defendant sent a reply that the

payment was to be made on or before 14.04.2012. The plaintiffs

offered a cheque of ₹3,00,000/- (Rupees Three Lakhs) on

12.4.2012 but the defendant refused to accept the same. The

plaintiffs even sent the cheque through Registered post. They

came to know that the balance amount was paid by defendant no.1

and the mortgaged land was redeemed. Defendant No. 1 executed a

Settlement Deed in favour of his son defendant No. 2 to defeat the

right of the plaintiffs. Defendant No.1 failed to execute the Sale

Deed despite repeated requests. Hence, the suit was filed seeking

the relief mentioned above.

.

4. The suit was opposed by filing a written statement,

taking preliminary objections regarding lack of maintainability &

locus standi, the plaintiffs being estopped to file the suit by their

act and conduct, the suit having not been properly valued for the

purpose of Court fee and jurisdiction, and the suit being barred by

limitation. The contents of the plaint were denied on merits. It

was admitted that the land was mortgaged with the Urban Co-

operative Bank Ltd. in lieu of loan raised by the defendant. It was

admitted that the predecessor of the plaintiffs paid a sum of

₹3,00,000/- (Rupees three Lakh) through a bank draft in the

name of Registrar General of High Court of H.P. It was also

admitted that an amount of ₹6,50,000/- was received and the

total amount of ₹ 9,50,000/- was received by the defendant. It

was agreed that an amount of ₹3,25,000/- (Rupees Three Lakhs

Twenty-Five Thousand), would be paid to the bank. The

defendant no. 1 was to obtain a clearance certificate from the bank

and the Sale Deed was to be executed thereafter. The plaintiffs

requested the defendant to execute some documents to get the

permission from High Court. The defendant put his signatures on

papers without knowing their nature. The defendant requested

.

the plaintiff Kulbhushan to pay the amount or to deposit it in the

bank to get the land released. The defendant made it clear to the

plaintiffs that he needed the money and he first had to deposit the

amount with the bank on or before 14.04.2012; however, the

plaintiffs failed to pay the money. The defendant repaid the loan

after collecting the money from his relatives. It was admitted

that a cheque of ₹ 3,00,000/- was sent through registered post on

13.04.2012. It was asserted that the spot map showing Khasra No.

1306/1, is fictitious and was never agreed between the parties.

Hence, it was prayed that the suit be dismissed.

5. An application for amendment was filed by the

defendant, which was rejected by the learned Trial Court on

15.11.2014.

6. The plaintiffs amended the pleadings to add Rajesh

Kumar, defendant no.2, to whom the land was transferred during

the pendency of the suit.

7. Defendant No. 1 filed a written statement to the

amended plaint, asserting that the amount was returned by the

Registrar of High Court of H.P. to the defendant, which was paid

by him to the predecessor-in-interest of the plaintiffs. The

.

receipt of the remaining amount was also denied. It was asserted

that a Settlement Deed was executed regarding Khasra No. 1306/1

measuring 142.5 Sq. meters, whereas the suit land is Khasra

No.1306/1 measuring 160.12 Sq. meters. The mistake was

committed by the revenue agency, which was corrected and the

Settlement Deed of Khasra No. 1306/2, measuring 152.53 Sq.

meters and Khasra No. 1305 measuring 8.25 Sq. meters was

executed.

8. Defendants No.2 filed a separate written statement,

taking preliminary objections regarding lack of maintainability

and locus standi,the plaintiffs being estopped to file the present

suit by their acts and conduct, improper valuation and the suit

being barred by limitation. The contents of the plaint were denied

on merits. However, it was admitted that the land was mortgaged

with Mandi Urban Co-Operative Bank Ltd. in lieu of the loan

raised by the defendant. It was asserted that the plaintiffs

requested defendant no. 1 to execute some documents and

obtained his signatures. Defendant no. 1 is illiterate and simpleton

and did not know the nature of the documents being executed by

him. The amount of ₹ 3,00,000/- (Rupees Three Lakhs) was

.

returned to the predecessor of the plaintiffs. The plaintiff did not

pay the amount of ₹ 3,00,000/- (Rupees Three Lakhs) despite

repeated requests. The Settlement Deed pertains to some other

Khasra number. The map was not prepared in the presence of the

defendant. Hence, it was prayed that the suit be dismissed.

9.

A replication denying the contents of the written

statement and affirming those of the plaint was filed.

10. Learned Trial Court framed the following issues on

11.09.2015:-

1. Whether the defendant No.1 vide agreement dated 31.10.2007, has agreed to sell the land

under Khasra No. 1306/1 to the predecessor in - interest of the plaintiffs as alleged? OPP.

2. Whether the suit land was mortgaged by defendant No.1 with Urban Co-operative Bank Mandi and the case was pending before the

Hon'ble High Court of H.P. as alleged? OPP.

3. Whether defendant No.1 again executed an agreement dated 25.04.2009 in enlargement of the time of execution of registration of the sale deed as alleged? OPP

4. Whether the predecessor in interest of the plaintiffs had advanced a sum of ₹9,50,000/- to the defendant No.1 as alleged? OPD.

.

5. Whether the plaintiffs are still ready and willing

to perform part of performance of the contract as alleged? OPD.

6. Whether the settlement deed executed by defendant No.1 in favour of defendant No. 2 is wrong, illegal, null and void as alleged? OPD.

7. Whether the suit of the plaintiffs is not

maintainable? OPD.

8. Whether the plaintiffs are estopped to file the present suit by their own act and deed?OPD.

9.

Whether the suit is time-barred? OPD

10. Relief.

11. The parties were called upon to produce their evidence.

The plaintiffs examined plaintiff no.1 (PW-1), Murari Lal (PW-

2), Om Prakash (PW-3), Pushap Raj (PW-4) and D.R.Sharma

(PW-5). The defendants examined defendant no.1 Sunder Lal

(DW-1).

12. The learned Trial Court held that the execution of the

agreement and payment of ₹ 3,00,000/-was not disputed by the

defendants; however, it was claimed subsequently that a sum of ₹

3,00,000/- (Rupees Three Lakhs) was returned to the

predecessor-in-interest of the plaintiffs. The plea that the

subsequent agreement enlarging the time was executed without

understanding its nature was not believable. The plaintiffs had

.

performed their part of the agreement. Hence, the learned Trial

Court answered issues no. 1 to 6 in the affirmative, the rest of the

issues in the negative, and decreed the suit of the plaintiffs.

13. Being aggrieved by the judgment and decree of the

learned Trial Court, defendant no.1 filed an appeal, which was

decided by learned District Judge, Mandi, and H.P. The learned

First Appellate Court upheld the findings recorded by the learned

Trial Court that the execution of the agreement was proved,

payment was made to the defendant no. 1,the plaintiffs were ready

and willing to perform their part of the agreement and the

defendant was in breach of the agreement. Learned First Appellate

Court held that it would not take a different view regarding the

appreciation of evidence by the learned Trial Court and dismissed

the appeal.

14. Being aggrieved and dissatisfied with the judgments

and decrees passed by the learned Courts below, the present

appeal has been filed asserting that the learned Courts below erred

in decreeing the suit. Proper issues were not framed, which has

caused prejudice to the appellants/defendants. The learned

Courts below relied upon untrustworthy and unreliable evidence.

.

The agreement was declared a sham transaction by the Court. The

defendant requested the plaintiffs to pay the amount to enable

him to clear the loan but the same was not paid. No cogent

evidence was led regarding the payment of ₹6,50,000/- (Rupees

Six Lakhs Fifty Thousand). The witnesses were related to the

plaintiffs and they only admitted the transaction of ₹ 3,00,000/-.

The subsequent agreement was not made as per the law.

Therefore, it was prayed that the present appeal be allowed,and

judgments and decrees passed by the learned Courts below be set

aside.

15. The following substantial questions of law proposed

arealong with the memoranda of appeals:

Substantial questions of law in RSA No. 181 of 2021

1. Whether the agreement dated 31.10.2007, Ext. PW- 2/B is legally enforceable which was already been declared as Sham transaction as mentioned in the judgment of learned District Judge, Mandi, in Civil Appeal No. 18 of 2019 in paragraph 23 of his findings?

2. Whether the judgements and decrees passed by learned Courts below are against the law and facts

which have been passed simply on surmises and the same are not sustainable in the eyes of law on account of non-framing the issue qua the

.

possession of Khasra No.1306/1 and by not affording

the opportunity to cross the PWs and lead the evidence in his defence?

3. Whether both the learned Courts below have

misread, misconstrued and misinterpreted the oral as well as documentary evidence of the parties, especially, the statements of PW-2, Murari Lal, PW-3, Om Parkash, PW-4, Pushap Raj and PW-5

D.R. Sharma and Ext. PW-2/B dated 31.10.2007, which has materially prejudiced the entire case of the appellant.?

4. Whether the Ld. First Appellate Court being last

court of fact while exercising powers under Section 96 of the Code of Civil Procedure 1908 was required to deal with and discuss the entire oral as well as documentary evidence on record?

Substantial questions of law in RSA No. 182 of 2021

1. Whether the agreement dated 31.10.2007, Ext. PW-

2/B is legally enforceable which has already been declared as Sham transaction as mentioned in the

judgment of learned District Judge, Mandi, in Civil Appeal No. 18 of 2019 in paragraph 23 of his findings?

2. Whether both the learned Courts below have misread, misconstrued and misinterpreted the oral as well as documentary evidence of the parties, especially, the statements of PW-2, Murari Lal, PW-3 Om Parkash, PW-4, Pushap Raj and PW-5 D.R. Sharma and Ext. PW-2/B dated 31.10.2007,

which has materially prejudiced the entire case of the appellant.?

3. Whether the impugned judgments and decrees are

.

perverse because it is a result of misreading and

mis-appreciation of evidence on record, if so, its effect?

4. Whether the learned First Appellate Court being the last Court of fact while exercising powers under Section 96 of the Code of Civil Procedure 1908 was required to deal with and discuss the entire oral as

well as documentary evidence on record?

16. I have heard Ms. Sunita Sood and Ms. Suchitra Sen,

Advocates for the appellants in both the appeals and Mr. Sandeep

Sharma, Advocate, for respondents no.1 to 4, in both the appeals.

17. Ms. Sunita Sood and Ms. Suchitra Sen, learned

Advocates of the appellants/defendants submitted that the

learned Courts below erred in decreeing the suit. The execution of

the agreement was not proved. The payment was not established.

The defendant asked the plaintiffs to pay the balance sale

consideration but the plaintiffs failed to do so. The agreement was

declared as a Sham transaction by the High Court in the earlier

proceedings and is not enforceable. The learned Courts below

erred in granting the relief of specific performance. Hence, they

prayed that the present appeals be admitted on the proposed

substantial questions of law.

.

18. Mr. Sandeep Sharma, learned counsel for respondents

no.1 to 4 in both the appeals supported the judgments and decrees

passed by the learned Courts below and submitted that no

interference is required with them. He submitted that the

defendant had himself produced the agreement before the High

Court and could not dispute its correctness. The credibility of the

defendant is suspect because he admitted the payment of ₹

9,50,000/- in the earliest written statement but denied the same

subsequently. The appeals do not disclose any substantial

questions of law. Hence, he prayed that the appeals be dismissed.

19. I have given considerable thought to the rival

submissions at the bar and have gone through the records

carefully.

20. The defendant filed a CWP No. 707 of 2006, before this

Court, and the Court passed an order on 12.07.2007(Ext. PW-1/C),

permitting the defendant no. 1 to sell the land measuring 392.31

Sq. meter comprised in Khata Khatauni No.286/394, Khasra No.

1306, situated in Mauza Tarna, Mandi, District Mandi H.P. by

private negotiations either in one lot or in separate lots.

Defendant No.1 was directed to place on record the agreement(s)

.

to sell entered into with the proposed vendees and file affidavits

of the proposed vendees that they would deposit the entire sale

consideration in the Registry of this Court.

21. The Court permitted defendant no. 1 to place on record

the agreement to sell dated 18.10.2007, executed by defendant no.

1 with Panna Lal for selling Khasra No. 1306/1, measuring 160.12

Sq. meters for sum of ₹ 3,00,000/- vide an order dated 11.12.2007

(Ext. PW-1/D), passed in the CMP No. 3063 of 2007.

Defendant no. 1 filed another CMP No. 3065 of 2007 for placing on

record an agreement to sell executed with Smt. Manorama Devi.

The Court was informed that Smt. Manorama Devi is the wife of

defendant no. 1 and the amount of sale consideration was much

less than the market value. The Court directed defendant no. 1 to

file an affidavit explaining whether Manorama Devi was his wife

or not.

22. Another order dated 10.01.2008, (Ext. PW-1/E), was

passed, recording the fact that Manorama Devi was the wife of the

defendant. The Court held that defendant no. 1 had tried to

conceal the facts from the Court. He had undervalued the

land.Hence, the amount was ordered to be returned to defendant

.

no. 1 and the bank was permitted to sell the mortgaged property.

23. CWP No. 707 of 2006 was disposed on 16.11.2011 (Ext.

PW-1/F) and the defendant was directed to deposit an amount of

₹ 5,00,000/- (Rupees Five Lakhs) with the bank as a one-time

settlement, out of which ₹2,00,000/-, would be paid by him

within one month and the remaining amount of ₹3,00,000/-

(Rupees Three Lakhs) would be paid within a further period of 4

months. The order sheet reveals that defendant no. 1 had filed an

application duly supported by an affidavit before this Court that

he had agreed to sell Khasara No.1306/1 to Panna Lal,

predecessor-in-interest of the plaintiffs. Therefore, defendant

no. 1 cannot say that no agreement was executed by him and no

consideration was received by him.

24. Ms Sunita Sood, learned Counsel for the

appellant/defendant submitted that the agreement in favour of

the predecessor-in-interest of the plaintiffs was declared to be a

sham transaction. The order sheets do not support this

submission. The Court took an exception to the fact that the

relationship between the defendant and Manorama Devi was not

disclosed by the defendant and the valuation was less than the

.

market value. The Court did not say anything about the agreement

entered between defendant no. 1 and Panna Lal, predecessor-in-

interest of the plaintiffs.

25. Defendant no. 1 had filed a written statement before

the learned Trial Court acknowledging the receipt of ₹ 3 Lakhs and

₹6,50,000/-. He had specifically stated that a total amount of

₹9,50,000/- was received by him. He even stated in para 6 of the

written statement that he was ready to return the entire amount

of ₹9,50,000/-. Subsequently, he filed another written statement

stating that ₹3,00,000/- returned to him by this Court were

returned by him to Panna Lal. He even denied the receipt of

₹6,50,000/-. He attempted to amend the written statement to

incorporate this fact. However, the permission was not granted

by the Court and the application for amendment was dismissed.

26. The plaintiff amended the plaint after addition of the

defendant no.2, by incorporating para 6(a). Defendant No.1 filed a

written statement to the amended plaint incorporating the pleas,

which were sought to be taken by him by way of amendments and

which were not permitted by the Court. It was laid down by this

Court in Tek Chand Chitkara versus Union of India, ILR 1974 (HP)

.

616, that the defendant is entitled to amend his written statement

after the amendment of the plaint. However, the scope of

amendment available to the defendant is confined to the

amendment effected in the plaint. It was observed:

"4. On the first contention, it seems to me that the plaintiff is right. There can be no doubt that if a plaintiff is allowed to amend his plaint a defendant is entitled to amend his written statement. But the scope of amendment available to

the defendant must relate to the amendment effected in the plaint. The occasion for permitting the defendant to amend

the written statement is provided by the amendment of the plaint, and the whole purpose of allowing the defendant to amend the written statement is to afford him an

opportunity to set out his defence in reply to the amended pleading introduced in the plaint. It must be remembered that after the plaint is filed and the defendant files his written statement in defence he exhausts his right to do so,

and he cannot subsequently amend the written statement except by leave of the Court. To permit the defendant to do

so otherwise could result in defeating Order 8 Rule 9 of the Code. Now, it is one thing to amend the written statement in reply to an amendment of the plaint; it is quite another

thing to amend the written statement by introducing entirely fresh pleadings not warranted by the amendment in the plaint. To amend the written statement in the latter case the defendant must satisfy requirements which proceed beyond those arising upon a mere amendment of the plaint. I am in agreement with the view taken in Diltu Ram vs. Amar Chand (A.I.R. 1961 H.P. 46.). It may be mentioned that the Punjab High Court has taken a contrary

view in Girdharilal vs. KrishanDatt(A.I.R. I960 Pb, 575).

Subsequently, the view taken by that court was explained in New Bank of India Ltd. vs. Smt. Raj Rani(A.I.R, 1966 Pb. 162) and the law was stated thus:

.

"On behalf of the respondent, it has been urged with a certain amount of force that in the case in hand it must be deemed that the Court below had not

reopened the entire trial but had merely directed the plaintiff to add to the relief clause an additional relief and that thedefendants were also accordingly permitted merely to answer to this additional plea and not to put in an absolutely fresh written

statement. Whether or not the Court below intended to adopt this procedure is far from obvious and its order is certainly not clear and explicit in this respect. I can see that the amendment in the plaint is

of a formal nature, but in the absence of any

restriction placed by the Court below, I am unable, as at present advised, to hold that as a matter of law, the defendant can be debarred from putting in a fresh written statement to a fresh plaint filed in

pursuance of an unqualified order."

There may be a case where subsequent to the amendment of the plaint a defendant may make out a case before the

court for amending his written statement so as to enable him not only to introduce pleas in reply to the amendment

in the plaint but also to introduce fresh pleas. So far as such fresh pleas are concerned, the court will consider, independently of the amendment effected in the plaint,

whether the defendant has made out a case for introducing such pleas in the written statement. The circumstance that the plaint has been amended is irrelevant, and the court will proceed to consider the prayer for introducing such pleas in the same way as it would an application for permission to amend the written statement had the plaint remained unaltered."

27. This judgment was approved by the Division Bench in

Sawan Singh versus Radhakishan,1979 SCC OnLine HP 20: AIR 1980

.

HP 8. The Division Bench noticed the question of law posed before

it as under:

"6. Thus it is evident that in all three revisions a common question of law arises as to whether in a case where the plaint is amended and the court directs for additional written statement under Order 8, Rule 9, the defendant

would be at liberty to take up any plea he prefers even in derogation to O. 6, R. 7 and O. 6, R. 17 of the CPC without seeking for any amendment in the pleadings."

28. The Division Bench held that when the plaintiff is

permitted to amend the plaint, the defendant can file a written

statement but the written statement has to be confined to the

amendment. It was observed:-

"17. As we have already pointed out, Order VI deals with

pleadings generally and the provisions of that order do apply to plaint as well as to written statements. Under Order

VIII, Rule 9, there is a provision for subsequent written statements. Nevertheless, Rule 9, Order VIII has to stand with Rr. 7 and 17 of O.VI. Under Rule 9, Order VIII,

additional written statements can be permitted to be filed.

But that does not mean that Rr. 7 and 17 of Order VI have been given a gobye. If such an additional written statement contains any departure in the pleadings within the meaning of O.VI, Rule 7, in our opinion Rule 17, O.VI will be effective and a proper amendment of the pleadings will have to be asked for. Without the court applying its mind as to whether there has been really a departure in the pleadings and as to whether the amendments should be permitted for

the purpose of determining the real question in controversy, in our opinion, the mere fact that additional written statement has been permitted to be filed under Rule 9 of Order VIII will not give a right to the defendant to raise

.

new or inconsistent pleas or to make allegation contrary to

the facts alleged in the previous pleadings.

18. The observations, of the learned Judge

in Girdharilal (supra) and New Bank of India Ltd. (supra) depending upon the nature and application of the law of procedure, in our opinion will be of no avail, the reason being that it would by itself be a rule of law as to whether Rr. 7 and 17 of Order VI are not required to be complied with

and merely because Rule 9 of Order VIII has been observed, a departure would be permitted in the pleadings without seeking for an amendment under Rule 17 of O.VI. That would not be a question of procedure, although while

allowing or disallowing the amendment the court can

always take a liberal view and may even permit the defendant to raise whatever defence he chooses to take in his favour.

19. Therefore, in our opinion, it will be a question of the application of the law pointed out in Rr. 7 and 17 of Order VI and not a pure question of procedure to be decided for allowing a departure in the pleadings under a pretence that

an additional written statement is permitted to be filed under Rule 9 of O.VIII. With respect to the opinion

expressed in the above-noted two Punjab cases, we have further to observe that the language used in the order allowing the amendment in the plaint or allowing the

additional written statement to be filed would be of no consequence. It is obviously correct that under O.VIII, R. 9 the Court would allow the subsequent written statement merely because the plaint was amended. While making that order the court is not expected to be aware of the pleas which may be taken while filing such an additional written statement. It is only when the additional written statement is filed that the court will become conversant with the pleas

taken in that additional written statement. At that point of time Rr. 7 and 17 of Order VI will come into play and in case in the opinion of the court the additional written statement is not confined to the amendments sought for in the plaint,

.

the defendant will be compelled to file an application for

amendment of the pleadings under Rule 17 of Order VI. Thereafter the court will examine the entire matter, and if the amendments sought for were necessary for

determining the real question in controversy the court may or may not allow the amendments. In fact, the mere direction by the court that an additional written statement be filed would convey only one meaning that the additional

written statement hereinafter to be filed has to confine to the amendments already sought by the plaintiff. If the court prejudges the issues and permits additional pleas to be taken by the defendant, in a particular case it may elaborate

its order seeking for the additional written statement by

making pertinent observations. But, as we have stated above, we cannot conceive of a case in which the court will be in a position to prejudge the issues and make an elaboration in its order to enable new pleas in additional

written statements.

20. At any rate, in the case before us, the orders were simple under Order VIII, Rule 9 permitting additional written

statements to be filed. After that stage, the court was not aware of what sort of pleas were likely to be raised in the

additional written statements. The question arose at the time when the additional written statements were filed and the court found that there was a departure in the pleadings

and rightly asked for the amendment under R. 17 of O.VI.

21. The learned counsel also referred to us Order XII Rule 6 which deals with admissions made in the pleadings and said that a right accrues to the plaintiff to ask for judgment on such admissions. If a departure in the pleadings is permitted in a situation of like nature, perhaps that right for a judgment may be lost. It was, therefore, rightly contended that unless specific permission of the court was

taken for amendments in the pleadings under Rule 17 of O.VI, the mere order for the filing of additional written statement under O.VIII, Rule 9 will not enable the defendant to commit a departure in his previous pleadings.

.

It is, of course, evident that such an additional written

statement will enable the defendant to take up additional pleas in respect of the amendments sought in the plaint. The dispute arises only when he takes up new pleas or

inconsistent pleas with reference to the original pleas taken up in the written statement. In our opinion, amendments will have to be sought under Rule 17 of Order VI. Thus we are inclined to accept the view expressed by this Court

in Dittu Ram v. Amar Chand (supra) and Tek Chand Chitkara v. Union of India (supra) and we respectfully differ from the view taken by this Court in Lachhmi Devi (supra)."

Therefore, it was not permissible for defendant no. 1 to

29.

amend the rest of the pleadings without seeking permission from

the Court and the learned Courts below had rightly taken

exception to this act of the defendant.

30. Defendant No.1 stated in his proof affidavit (Ext. DW-

1/A), that he had entered into an agreement with Panna to sell

Khasra No.1306/1 measuring 160.12 Sq. meters for ₹ 12,75,000/-.

Panna Lal issued a demand draft of ₹3,00,000/-. The High Court

refused to grant the permission to sell the land and held the

agreement to be a sham transaction. Defendant No.1 refunded the

amount to Panna Lal. Panna Lal did not pay ₹6,50,000/- to

defendant no.1. These pleas are contrary to the original

admissions regarding the receipt of ₹ 9,50,000/- and the offer to

return this amount to the plaintiff. Defendant No.1 admitted in

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his cross-examination that he had entered into an agreement

with Panna Lal, for selling the land for₹12,75,000/-. He admitted

that the agreement was written by Mr.Desh Raj Sharma, Advocate

for defendant no.1. He acknowledged his signatures and the

signatures of Desh Raj. He stated that the agreement was not

written as per the wishes. He denied that ₹ 6,50,000/- was paid

to him. He denied that he had put the signatures after

understanding its contents.

31. Mr. Deshraj Sharma, Advocate, (PW-5), stated that he

knows Panna Lal. The parties came to him and asked him to write

an agreement. He wrote the agreement (Ext.PW2/B), which was

acknowledged by both parties to be correct. He specifically denied

that the agreement was written after practising fraud upon

defendant no.1.

32. Defendant no. 1 was represented by Mr. Deshraj

Sharma, before the learned Trial Court till 30.03.2016. Sh. D.R.

Sharma also appeared on behalf of defendant no. 1 before this

Court and his attendance was marked in the order dated

10.01.2008. It means that defendant no.1 trusted his Advocate to

watch his interest. The fact that he had engaged the same

.

Advocate even during the present proceedings shows that he had

not lost the confidence/faith of his Advocate; therefore, his plea

that the agreement was executed fraudulently by the Advocate is

not acceptable. The statement of the Advocate as well as

admissions made in the written statement show the conduct of

defendant no.1. Hence, his testimony is not reliable and cannot be

used for holding that no such agreement was executed between

the parties and no amount was paid to him.

33. The defendant no. 1 admitted that a cheque of ₹

3,00,000/- (Rupees Three Lakhs) was sent by the plaintiffs to him

in original. The written statement corroborates the version of the

plaintiffs that they were ready and willing to perform their part of

the agreement. Hence, the learned Courts below had rightly

granted the specific performance of the Contract in favour of the

plaintiffs.

34. Therefore, there is no misreading or misinterpretation

of the evidence. There is no perversity in the judgments of the

learned Courts below. The Court never declared the agreement as

a sham transaction. Hence, in the present appeals do not involve

any substantial question of law.

.

Final Order:

35. In view of the above the appeals are dismissed with

costs throughout. The record of the case be remitted back to the

learned Courts below. Pending miscellaneous applications, if any,

also stand disposed of.

(Rakesh Kainthla) Judge

04th October, 2023

(Ravinder)