Jharkhand High Court

Brajesh Verma vs Anil Prasad on 15 March, 2021

                        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                W.P.(C) No. 3605 of 2019

            Brajesh Verma                                             .....    ... Petitioner
                                                 Versus
            1. Anil Prasad
            2. Syndicate Bank Authorized Officer, K.C. Roy, Memorial School Branch,
                Ranchi.                                      .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR

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For the Petitioner : Mr. Sandeep Verma, Advocate For the Respondent No.1 : Mr. Rahul Kumar Gupta, Advocate For the Respondent No.2 : Mr. Vijay Shankar Prasad, Advocate

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07/15.03.2021 The present writ petition is taken up today through Video conferencing.

2. The present writ petition has been filed for quashing the order dated 24th May, 2019 passed by the learned Civil Judge (Senior Division)- VI, Ranchi in Misc. Civil Application No.284 of 2019 arising out of Title Suit No. 398 of 2013 whereby the petition filed on behalf of the plaintiff/respondent no.1 under Order VI rule 17 read with section 151 of the Code of Civil Procedure, 1908 for amendment of pleadings has been allowed.

3. The plaintiff/respondent no.1 has filed Title Suit No.398 of 2013 in the Court of Civil Judge (Senior Division)-I, Ranchi against the petitioner and the respondent no.2 herein seeking following reliefs:-

"(A). A decree be passed directing the defendant no.2/respondent no.2 to execute and register the sale deed in favour of defendant no.1/petitioner and the plaintiff/respondent no.1 and put them in possession of the property described in Schedule A of the plaint.

(B). In case the sale deed is executed and registered in favour of defendant no.1/petitioner by defendant no.2/respondent no.2, a decree be passed directing the defendant no.1/petitioner to execute and register the sale deed in favour of plaintiff/respondent no.1 and put him in possession of Schedule-B property described in Schedule-B of the plaint.

(C). A decree for perpetual injunction be passed restraining the defendant no.2/respondent no.2 from executing any sale deed or issuing sale deed certificate in favour of defendant no.1/petitioner", besides other reliefs.

4. In the said case, the petitioner appeared and filed his written statement. When the case was fixed for judgment, the petitioner filed an application dated 3rd April, 2019 under Order VI rule 17 read with Section 151 of the CPC for amendment of the written statement which was numbered as Misc. Civil Application No.269 of 2019. In the meantime, the respondent no.1 also filed an application dated 10th April, 2019 under

order VI rule 17 read with Section 151 of the CPC for amendment of the plaint which was numbered as Misc. Civil Application No. 284 of 2019. The prayer of the respondent no.1 for amending the plaint was allowed vide order dated 24th May, 2019 observing that the proposed amendment was formal in nature. The court below also allowed the amendment application of the defendant no.1/petitioner, however, the same became infructuous, as he failed to incorporate the same within the time frame.

5. The learned counsel for the petitioner submits that the impugned order is not a reasoned one, as no satisfactory reason with respect to due diligence on part of the respondent no.1 has been assigned, thus the same is cryptic in nature. It is further submitted that if the impugned order is allowed to exist, the same would cause grave injustice to the petitioner and he will suffer irreparable loss and injury.

6. The learned counsel appearing on behalf of the respondent no.1 submits that the petitioner had participated in auction sale of the property consisting of land with building over Plot no.938, Khata No.61, situated at Mouza-Hesal, P.S Sukhdeonagar, District-Ranchi measuring an area of 6 katthas and he was finally declared a successful bidder for the bid of Rs. 19,07,001/-. However, the petitioner was not having sufficient fund to deposit the bid amount and as such he approached the respondent no.1 who agreed to transfer 3 katthas land with building out of 6 katthas to him for the total consideration of Rs.9,53,500/- and as such the petitioner paid Rs.10,00,000/- by way of cheques and excess amount of Rs.46,500/- was returned to the respondent no.1 in cash. In the meantime, the mortgager of the property filed S.A No.2 of 2011 under Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter to be referred as the 'Act, 2002') before the Debts Recovery Tribunal (in short 'DRT'), Ranchi, however, the same was dismissed. When the petitioner refused to transfer 3 katthas of land with building to the respondent no.1, he filed Title Suit No.398 of 2013. Thereafter, the plaintiff/respondent no.1 filed an application for amendment of the plaint to the extent of inserting the details of the boundary of the land which was inadvertently not incorporated in the plaint by asserting that he had paid full and final consideration and was always ready and willing to purchase the land in question but due to deferring attitude of the defendant no.1/petitioner,

the registered deed of sale was not executed in his favour. The court below found that the said amendment was formal in nature and thus allowed his application vide order dated 24th May, 2019. It is further submitted that the amendment as sought will not change the nature of the suit and will not cause any prejudice to the petitioner. The said amendment was necessary for determining the real question in controversy between the parties.

7. The learned counsel for the plaintiff/respondent no.1 puts reliance on the judgment of the Hon'ble Supreme Court rendered in the case of Usha Devi Vs. Rijwan Ahmad & Others reported in (2008) 3 SCC

717.

8. Heard the learned counsel for the parties and perused the materials available on record. The petitioner is aggrieved with the order dated 24th May, 2019 passed by the learned court below whereby the amendment sought by the plaintiff/respondent no.1 has been allowed.

9. To appreciate the contentions of the parties, it would be appropriate to quote the content of the amendment, as prayed for by the respondent no.1:-

"I. That after paragraph (7) in the plaint a new paragraph (7)(a) may be inserted in the plaint in following manner:- (7)(a). That after payment of such full and final consideration amount of Rs.9,53,900/- the plaintiff is always ready and willing to perform his part of the contract but on account of deferring attitude of the defendant no.1 the registered deed of sale has not been executed in favour of the plaintiff which cannot be permitted to be done under any legal purview.

II. That in page no.7 the relief "(C)" of the plaint may be deleted and relief "(D)" may be corrected as "(C)".

III. That in page no.8 of the plaint in foot of the schedule A the boundary of the land may be inserted in the following manner: "bounded and butted as follows:-

                    North : Land of Smt. Lalphari Devi
                    South : 20 fit wide road
                    East    : Sub Plot no. 938/14 of Lata Phari Devi
                    West : Sub Plot No. 938/8

IV. That in page no.8 of the plaint in foot of the schedule B the boundary of the lands in suit may be inserted in the following manner:

"bounded and butted as follows:-

                    North : Land of Smt. Lalphari Devi
                    South : 20 fit wide road
                    East    : Portion of Sub Plot No. 938/8
                    West : Sub Plot No. 938/8"

10. The respondent no.1 thus sought to incorporate, by way of amendment that after making full and final consideration amount of Rs.9,53,900/- he was always ready and willing to perform his part of the contract and it was only the petitioner for whose latches, the sale deed

could not be executed.

11. The learned counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court rendered in the case of Mehboob-Ur-Rehman (dead) through Legal Representatives Vs. Ahsanul Ghani reported in (2019) 19 SCC 415 to contend that such averment of the respondent no.1 may not be allowed to be incorporated at a belated stage just to advance his stand. The relevant part of the said judgment, is quoted hereinbelow:-

"15. Though, with the amendment of the Specific Relief Act, 1963 by Act No. 18 of 2018, the expression "who fails to aver and prove" is substituted by the expression "who fails to prove" and the expression "must aver" stands substituted by the expression "must prove" but then, the position on all the material aspects remains the same that, specific performance of a contract cannot be enforced in favour to the person who fails to prove that he has already performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than the terms of which, the performance has been prevented or waived by the other party. As per the law applicable at the relevant time, it was incumbent for the plaintiff to take the specific averment to that effect in the plaint. Of course, it was made clear by this Court in several decisions [ Vide Syed Dastagir v. T.R. Gopalakrishna Setty, (1999) 6 SCC 337 and Aniglase Yohannan v. Ramlatha, (2005) 7 SCC 534] , that such requirement of taking the necessary averment was not a matter of form and no specific phraseology or language was required to take such a plea. However, and even when mechanical reproduction of the words of statute was not insisted upon, the requirement of such pleading being available in the plaint was neither waived nor even whittled down. In A. Kanthamani v. Nasreen Ahmed [A. Kanthamani v. Nasreen Ahmed, (2017) 4 SCC 654 : (2017) 2 SCC (Civ) 596] , even while approving the decree for specific performance of the agreement on facts, this Court pointed out that the requirement analogous to that contained in Section 16(c) of the Specific Relief Act, 1963 was read in its forerunner i.e. the Specific Relief Act, 1877 even without specific provision to that effect. Having examined the scheme of the Act and the requirements of CPC, this Court said : (SCC p. 660, para 22) "22. Therefore, the plaint which seeks the relief of specific performance of the agreement/contract must contain all requirements of Section 16(c) read with requirements contained in Forms 47 and 48 of Appendix A CPC."

16. Such a requirement, of necessary averment in the plaint, that he has already performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him being on the plaintiff, mere want of objection by the defendant in the written statement is hardly of any effect or consequence. The essential question to be addressed to by the Court in such a matter has always been as to whether, by taking the pleading and the evidence on record as a whole, the plaintiff has established that he has performed his part of the contract or has always been ready and willing to do so. In this regard, suffice it would be to refer to the principles enunciated by this Court in Umabai [Umabai v. Nilkanth Dhondiba Chavan, (2005) 6 SCC 243] as under : (SCC pp. 256 & 260, paras 30 & 45) "30. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff-respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a

statement made in the examination-in-chief would not suffice. The conduct of the plaintiff-respondents must be judged having regard to the entirety of the pleadings as also the evidences brought on records.

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45. It was for the plaintiff to prove his readiness and willingness to pay the stipulated amount and it was not for the appellants to raise such question."

19. So far as the proposition for amendment of the plaint is concerned, we are unable to find any illegality on the part of the first appellate court and the High Court in rejecting the prayer belatedly made by the plaintiff. As noticed, the averment and proof on readiness and willingness to perform his part of the contract has been the threshold requirement for a plaintiff who seeks the relief of specific performance. The principle that the requirement of such averment had not been a matter of form, applied equally to the proposition for amendment at the late stage whereby, the plaintiff only attempted to somehow improve upon the form of the plaint and insert only the phraseology of his readiness and willingness. In such a suit for specific performance, the Court would be, and had always been, looking at the substance of the matter if the plaintiff, by his conduct, has established that he is unquestionably standing with the contract and is not wanting in preparedness as also willingness to perform everything required of him before he could be granted a relief whereby, the performance of other part of the contract could be enjoined upon the defendant. In the present case, the appellant-plaintiff had failed to aver and prove his readiness and willingness to perform his part of the contract. The trial court made a rather assumptive observation that he had proved such readiness and willingness. Thereafter, the plaintiff sought leave to amend the plaint only when the ground to that effect was taken in the first appeal by the defendant. In the facts and circumstances of the present case, in our view, it was too late in the day for the plaintiff to fill up such a lacuna in his case only at the appellate stage. In other words, the late attempt to improve upon the pleadings of the plaint at the appellate stage was only an exercise in futility in the present case.

12. In the aforesaid case, the amendment was sought at the appellate stage which was rejected by holding that the appellant had neither averred nor proved by evidence his readiness and willingness to do his part of agreement. The High Court and the Supreme Court also did not interfered with the order of the appellate court. The Hon'ble Apex Court observed that the late attempt to improve the pleading of the plaint at the appellate stage was only a futile exercise. It was also observed by the Hon'ble Apex Court that no specific phraseology or language was necessary in the plaint to take the plea of readiness and willingness. The court below had to see the entire pleadings and evidence in its entirety to find out the essential requirement for considering the prayer seeking relief of specific performance.

13. It is evident that the plaintiff had averred in the plaint regarding payment of the full consideration amount of the land in question. Moreover, mere insertion of the fact that the plaintiff has paid the full and

final consideration amount and was ready and willing to perform his part would not by itself be a ground to allow the suit unless on the basis of entire pleadings and the evidence, the court finds that the plaintiff has succeeded to prove all the necessary requirements for grant of relief. Otherwise also, the defendant no.1/petitioner will have every right to controvert the claim of the plaintiff/respondent no.1 by adducing sufficient evidence.

14. So far the amendment of the plaint to the extent of inserting the details of boundary of the suit land given in the plaint is concerned, the learned counsel for the respondent no.1 has relied upon the judgment of the Hon'ble Supreme Court rendered in the case of Usha Devi Vs. Rijwan Ahmad reported in (2008) 3 SCC 717, wherein it has been held as under:-

"14. Mr Bharuka also invited our attention to a three-Judge Bench decision of this Court in Sajjan Kumar v. Ram Kishan [(2005) 13 SCC 89]. In this decision too the proposed amendment related to correction of the description of the suit premises in the plaint. The amendment was sought on the plea that the description of the property given in the rent note itself was incorrect and the same description was repeated in the plaint and there would be complications at the stage of execution to avoid which the description of the suit premises as given in the plaint needed to be corrected. Another similarity with the case in hand was that the prayer for amendment was opposed by the respondent-defendant on the principal ground that although the defendant had taken the plea in the written statement itself that the suit premises were not correctly described, yet the appellant-plaintiff proceeded with the trial of the suit and did not take care to seek the amendment at an early stage. The trial court rejected the prayer for amendment and the High Court dismissed the civil revision against the order of the trial court. Allowing the prayer for amendment this Court in para 5 of the decision observed as follows: (Sajjan Kumar case [(2005) 13 SCC 89] , SCC p. 90) "5. Having heard the learned counsel for the parties, we are satisfied that the appeal deserves to be allowed as the trial court, while rejecting the prayer for amendment has failed to exercise the jurisdiction vested in it by law and by the failure to so exercise it, has occasioned a possible failure of justice. Such an error committed by the trial court was liable to be corrected by the High Court in exercise of its supervisory jurisdiction, even if Section 115 CPC would not have been strictly applicable. It is true that the plaintiff-appellant ought to have been diligent in promptly seeking the amendment in the plaint at an early stage of the suit, more so when the error on the part of the plaintiff was pointed out by the defendant in the written statement itself. Still, we are of the opinion that the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of the execution in the event of the plaintiff-appellant succeeding in the suit.

(emphasis supplied)

15. In view of the decision in Sajjan Kumar [(2005) 13 SCC 89] we are of the view that this appeal too deserves to be allowed. We may clarify here that in this order we do not venture to make any pronouncement on the larger issue as to the stage that would mark the commencement of trial of a suit but we simply find that the appeal in hand is closer on facts to the decision in Sajjan

Kumar [(2005) 13 SCC 89] and following that decision the prayer for amendment in the present appeal should also be allowed.

16. As to the submission made on behalf of the respondents that the amendment will render the suit non-maintainable because it would not only materially change the suit property but also change the cause of action it has only to be pointed out that in order to allow the prayer for amendment the merit of the amendment is hardly a relevant consideration and it will be open to the respondent-defendants to raise their objection in regard to the amended plaint by making any corresponding amendments in their written statement."

15. Thus, the amendment relating to insertion of the details of boundary of the suit property can be allowed even at belated stage as the proposed amendment is necessary for the purpose of bringing home the real question in controversy between the parties, the refusal of which will create needless complications.

16. So far the claim of the petitioner that he will suffer irreparable loss and injury due to allowing the said amendment, I am of the view that it is open to the petitioner to make corresponding amendments in his written statement controverting the averments of the amended plaint.

17. Under the aforesaid circumstance, the order dated 24th May, 2019 passed by the Civil Judge (Senior Division)-VI, Ranchi in Misc. Civil Application No.284 of 2019 arising out of Title Suit No.398 of 2013 is modified to the extent that the petitioner herein will be allowed by the said court to amend his written statement controverting the averments of the amended plaint. It is further ordered that the respondent no.1 will pay a cost of Rs.5,000/- to the petitioner for putting inconvenience to him by filing amendment application at a belated stage.