Sarla Devi vs Vandana Verma & Others ...
2023 Latest Caselaw 16822 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

OMP No.705 of 2021 in C.S. No.15 of 2021 Reserved on : 12.09.2023 Decided on : 19.10.2023

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Sarla Devi ...Applicant/Plaintif

Versus

Vandana Verma & Others ...Non-applicant/defendants

Coram The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the applicant r : Mr. Sudhir Thakur, Senior Advocate with Mr. Somesh

Sharma, Advocate For the non-applicants: Mr. Naresh Kumar Tomar, Advocate for defendants/

non-applicants No.1 and 2.

Mr. Romesh Verma, Senior Advocate with Mr. Hitesh

Thakur, Advocate for defendants/non-applicants

No.3 and 4.

Virender Singh, Judge.

The present application has been moved by the

plaintif, in the Civil Suit, filed for seeking the following

relief:-

(1). A decree of specific performance of the contract is to be passed in favour of the plaintiffs and against the defendants directing the defendant to execute the sale

Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

deed with respect to Third floor alongwith roof rights, of the four storied building constructed over the land comprised in khata khatauni No. 238/348 Khasra No. 1237, measuring 228 square meters,

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situated in Mauza Saproon, Tehsil and

District Solan, Himachal Pradesh, in terms of Agreement dated 20.11.2019 by passing a decree accordingly.

(2) A decree of recovery of the damages is also to be passed in favour of the plaintiffs and against the defendants to the tune of Rs. 10,00,000/- as damages and thereby

directing the defendants to pay Rs. 10,00,000/- as damages along with interest @12% per annum from the date of filing of the suit till its realization in case defendants

fail to Execute the sale Deed.

(3) A decree of permanent prohibitory injunction is to be passed in favour of the plaintiffs and against of the defendants, restraining them from transferring,

alienating the suit property in favour of any person in any manner and from creating any charge, lien or encumbrance over the same property in any manner and from

creating any third party interest by executing any tenancy, lease deed, license

etc. in favour of the third party in any manner whatsoever either by themselves or through their agents, assignees, servants

etc., with respect to the suit property comprised of Third floor alongwith roof rights, of the four storied building constructed over the land comprised in khata khatauni No. 238/348 Khasra No. 1237, measuring 228 square meters, situated in Mauza Saproon, Tehsil and District Solan, Himachal Pradesh.

Alternatively, in any case on account of any eventuality, if this Hon'ble court comes to a conclusion that for any reason if Decree of Specific Performance of Contract cannot be

passed in that eventuality. a decree of recovery to the tune of Rs. 1,25,00,000/- may kindly be passed in favour of the Plaintiffs and against the defendants."

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2. The application has been moved on the ground

that the plaintif has filed the suit for Specific Performance

of Contract, as well as, Permanent Prohibitory Injunction and

for recovery of damages to the tune of Rs.1,25,00,000/-,

along with interest.

3. The suit has been filed, on the basis of the

agreement to sell, dated 20.11.2019, whereby the

defendants have agreed to sell the third floor of the suit

property, along with the roof rights of the same building, for

a total consideration of Rs.40,00,000/-. The said agreement

was further agreed to be extended vide agreement dated

14.05.2020 and 09.11.2020. Full and final payment for the

consideration of the suit property has already been paid, by

the plaintif.

4. As per the averments made in the application,

the occasion for filing the present application has arisen,

when, the defendants had filed their written statement,

disclosing therein that vide sale deed dated 19.03.2020, the

property has been sold to Smt. Poonam Klaita wife of

Govind Singh and Shri Govind Singh son of Shri Geeta Ram,

vide sale deed No.535, registered with the Sub Registrar

Solan, for a sum of Rs.1,13,81,000/-. The said sale deed is

stated to be result of fraud, misrepresentation by the

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defendants, just to defeat the legitimate legal rights of the

plaintifs.

5. On the basis of the above facts, a prayer has

been made to amend the plaint, by seeking the relief of

declaring the sale deed, executed in favour of Smt. Poonam

Klaita and Shri Govind Singh, as wrong, illegal, null and

void.

6. Apart from this, a prayer has been made to

permit the plaintif to amend the suit, by inserting the

following, in the nomenclature of the plaint, after the word

'1.25 Crore.'

"Further for Decree of Declaration declaring the Registered Sale Deed No. 535 Dated

19.03.2020 Registered with the Sub Registrar Solan, H.P. in favour of Smt. Poonam Klaita wife of Sh. Govind Singh and

Sh. Govind Singh son Sh. Geeta Ram to be wrong, illegal, null and void document and not binding on the Rights, Title and Interest of the plaintiff to the extent of Third floor and the roof of the same building and not binding on the Rights, Title and Interest of the plaintiff.

7. The following para 7(a) in the plaint, has also

been sought to be inserted:-

7(a). That after the execution of the Agreement to Sell Dated 20.11.2019 (Annexure P-2) which was further 07 extended vide agreement dated 14.05.2020 (Annexure P-3) and 09.11.2020(Annexure P-

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4), the defendants have further sold the suit

property in question to Smt. Poonam Klaita wife of Sh. Govind Singh and Sh. Govind Singh son Sh. Geeta Ram in a wrong and

illegal manner just to defeat the legitimate legal right of the plaintiff and in violation and breach of the Agreement to Sell Dated 20.11.2019 (Annexure P-2) and also breach of trust with the plaintiff S As such, the

Registered Sale Deed No. 535 Dated 19.03.2020 registered with the sub registrar Solan, H.P. is to be declared wrong illegal null and vold document which is not binding

on the Rights, Title and Interest of the plaintiff. And accordingly the Decree of

Declaration is to be passed in favour of the plaintiffs and against the defendant to the extent that the defendants have sold the Third floor of the building in question along

with roof is unlawful and illegal. Hence the decree of Declaration is to be passed declaring the sale deed to be illegal null and void and not binding on the right title and

interest of the plaintiff to the extent of Third floor and the roof of the same.

It is further submitted that the defendants have sold the same without taking the

plaintiff in confidence and without issuing any notice to the plaintiff in this regard and the same has been done in total misrepresentation and fraudulent manner in league with the aforesaid Smt. Poonam Klaita wife of Sh. Govind Singh and Sh. Govind Singh son Sh. Geeta Ram. The same purposeful and intentional act attracts the provisions of the Indian Penal Code for which the defendants are to be dealt with separately in accordance with law. It is further submitted here that the old age of the widow lady is being taken as undue

advantage by the defendants for violating the same agreement. Hence accordingly decree of declaration is to be passed in favour of the plaintiff and against the defendants."

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8. A prayer has also been made to permit the

plaintif to add the following clause 4 in the prayer clause:-

(4). "Decree of Declaration may be passed in favour of the plaintiffs and against the defendant declaring the Registered Sale Deed No. 535 Dated 19.03.2020 Registered

with the Sub Registrar Solan, H.P. in favour of Smt. Poonam Klaita wife of Sh. Govind Singh and Sh. Govind Singh son Sh. Geeta Ram to be wrong, illegal, null and void

document which is not binding on the

Rights, Title and Interest of the plaintiff to the extent of Third floor and the roof of the same building and not binding on the Rights, Title and Interest of the plaintiff. Accordingly decree of declaration is to be

passed in favour of the plaintiff and against the defendants."

9. The application is stated to have been filed with

due diligence, as the applicant could not plead the aforesaid

facts, as the same were not within the knowledge of the

applicant. The application is supported by the affidavit of

applicant/plaintif Sarla Devi.

10. When put to notice, the application has only

been contested by defendants No.3 and 4, as, on 18.7.2023,

learned counsel representing defendants No.1 and 2 has

stated, at the bar, that defendants No.1 and 2, do not

intend to file reply to the application.

11. Defendants No.3 and 4 have filed reply, by

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pleading that the application is not maintainable; the suit of

the plaintif against them is time barred; applicant is

estopped to set up any claim against defendants No.3 and

4; and the application is not stated to be bonafide.

12. Elaborating their stand, it has been asserted, in

the reply, that the plaintif had failed to perform his part of

the contract, despite the fact that the extension of time has

been sought on 14.5.2020, for further period of three

months.

13. On merits, the application has been contested on

the ground that if the application is allowed, the nature of

the suit will be changed.

14. Learned counsel appearing for defendants No.3

and 4, has relied upon the decision of Hon'ble Apex Court in

Bina Murlidhar Hemdev and Others versus

Kanhaiyalal Lakram Hemdev and Others, (1999) 5

SCC, 2022, in Civil Appeal No.6595, titled L.C.

Hanumanthappa (since dead) Represented by his LRs

versus H.B. Shivakumar, in Civil Appeal No.5567 of

2008, titled South Konkan Distilleries & Another

versus Prabhakar Gajanan Naik & Others, and decision

of Kerala High Court in RFA No.182 of 2021 (I), titled as

Sisupalan versus Soman.

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15. First of all, coming to the objections, which have

been taken by defendants No.3 and 4 to the application,

under Order 6 Rule 17 CPC, that the suit of the plaintif is

not maintainable and is time barred, applicant is estopped

to set up any claim against defendants No.3 and 4, are

concerned, at the time of deciding the application under

Order 6 Rule 17 CPC, merits and demerits of the proposed

amendment is not to be considered, as, this matter will be

considered, on the basis of the stand taken by the parties,

in their pleadings, as well as, on the basis of the evidence,

so adduced.

16. Hon'ble Apex Court in Rajesh Kumar Aggarwal

& Others versus K.K. Modi & Others, 2006 (3) Civil

Cout Cases 57 (S.C.), has held, as under:-

"15. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.

16. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is

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necessary to decide the real dispute

between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned

Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court

should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice.

It is settled by catena of decisions of this Court that the rule of amendment is

essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the

parties before the court.

17. While considering whether an application for amendment should or should

not be allowed, the court should not go into the correctness or falsity of the case in the

amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be

incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case."

(self emphasis supplied)

17. In view of above, with due respect to the case

law, as relied upon, by learned counsel for defendants No.3

and 4, the same is not applicable, at this stage, as,

defendants No.3 and 4, have been impleaded, in the

present case, on 14.6.2023, in pursuance to the decision of

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OMP No.704 of 2021. They were summoned being proposed

defendants No.3 and 4, in OMP No.704 of 2021 and they

had put appearance, in this case, on 10.04.2023.

18. In such situation, when defendants No.3 and 4

had not challenged the application, for their impleadment,

as defendants, in the main suit, as such, their objections,

with regard to the merits of the case, is not to be

considered, while deciding the present application.

19. The suit is at the initial stage, as, issues have not

been framed. The prayer for amendment has been made

on the ground of factual position, as, disclosed by

defendants No.1 and 2, in their written statement.

Thereafter, by moving application bearing OMP No.704 of

2021, defendants No.3 and 4, were ordered to be impleaded

as party-defendants, in the present case.

20. In such situation, the application for amendment,

is liable to be allowed. Consequently, the same is allowed

and amended plaint, which is already on the file, is ordered

to be taken on record.

Civil Suit No.15 of 2021

Written statement to the amended plaint, if any

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be filed within four weeks.

List on 23.11.2023.

                                            (Virender Singh)
    October 19, 2023(ps)                              (Judge)



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