1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER Kashi Ram Vs. Mallu Ram & another S.B.CIVIL WRIT PETITION NO.4244/2004 Date of order : 11th May 2006 PRESENT HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr.S.L.Jain for the petitioner Mr.N.L.Joshi for the respondent BY THE COURT: This writ petition has been submitted by the defendant in a suit for specific performance assailing the order dated 21.09.2004 (Annex.5) passed by the learned trial court refusing his applications under Order 6 Rule 17 read with Section 151 and under Order 8 Rule 1A(3) of the Code of Civil Procedure (CPC). Brief relevant facts are that the petitioner is defending a suit filed by the respondent No.1 seeking specific performance of an alleged agreement for sale of agricultural land situated at Chak 5 MLD(A) in Murraba Nos.48/56 and 38/64 measuring about 50 bighas. The existence and validity of the agreement is seriously in question. The plaintiff asserts existence of the agreement and his right to have the same specifically performed; whereas the defendant-petitioner maintains the agreement to be a fabricated document and being unenforceable in law. On 23.07.2004, the trial 2 court framed as many as nine issues on the questions involved in the suit which read as under:- “(1) चक ० 5 एम.एल. (ए) 0न0 48/56 व 48/64 49.10 13-1- 1984 2,97,000/- कर आ । -- (2) - 13-1-84 , और अब । -- (3) - 13-1-84 पर क आ । -- (4) - 13-1-84 13 व । -- (5) कम पर । -- (6) क 13-1-84 पर । -- (7) । 3 -- (8) , न । -- (9) .” A perusal of record shows that after framing of issues, the matter was posted for plaintiff's evidence on 11.08.2004. On this date, the plaintiff moved an application for summoning of the original agreement dated 13.01.1984. The learned trial court passed an order requisitioning the said document from the Station House Officer, Police Station, Anoopgarh. On the next date of hearing, i.e. 21.08.2004 another application was moved by the plaintiff under Order 13 Rule 10 CPC and directions were issued to the Station House Officer, Police Station, Anoopgarh to send the original agreement alongwith FSL report. On these dates of 11.08.2004 and 21.08.2004 though several witnesses of the plaintiff were present but none of them was examined. On the next date of hearing i.e. 03.09.2004, the documents required by the court were received but the defendant-petitioner moved the applications aforesaid under Order 6 Rule 17 and Order 8 Rule 1A(3) CPC seeking permission to amend the written statement and to produce further documents. The plaintiff also moved an application under Order 16 Rule 1 CPC. On that date, 4 learned trial court received copy of an order dated 09.08.2004 passed by this Court in S.B.Civil Misc. Appeal No.1154/2004 wherein this Court directed both the parties to maintain status quo in relation to the property in dispute and directed the trial court to decide the matter within six months. The learned trial court, therefore, ordered that regular proceedings be taken in the suit curbing against long adjournments. By the impugned order dated 21.09.2004, the learned trial court proceeded to dismiss the applications submitted by the petitioner and posted the matter for plaintiff's evidence. Record of the trial court shows that on 27.09.2004 affidavit in evidence was submitted by the witness PW-1 Mallu Ram (plaintiff) and he was cross-examined. Affidavits of other witnesses were also filed but due to paucity of time, their cross-examination was deferred and the matter was posted for plaintiff's evidence on 11.10.2004 and 12.10.2004. In the meantime, this writ petition submitted by the defendant- petitioner challenging the order dated 21.09.2004 was taken up for admission on 29.09.2004 and after noticing the contention of learned counsel for the petitioner with reference to Section 17 of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973('the Act of 1973'), this Court issued notices and by way of interim order, it was directed that it would be open for the petitioner to cross-examine the plaintiff and his witnesses on the aspect about 5 the plaintiff holding another land. It may be pointed out at this juncture itself that it is the aspect of the plaintiff holding another land that has been sought to be incorporated in the pleadings by way of amendment; and the petitioner seeks to contend that disputed agreement cannot be specifically performed for the reason that in view of the existing holding of the plaintiff and his family, if the agreement is performed and other holdings are acquired by the plaintiff, that would exceed the ceiling limit and in view of Section 17 of the Act of 1973 the plaintiff would stand precluded from obtaining specific performance of such an agreement. Reverting to the proceedings in the suit, it is noticed that on 11.10.2004 no business was transacted. However, on 12.10.2004 statements of PW-2 Balvindra Singh, PW-3 Jeevanram, PW-4 Laxmanram and PW-5 Devilal were completed with cross- examination. Affidavit of another witness PW-6 Lal Khan was submitted and he was also cross-examined. PW-7 Gajendra Singh was also examined in the court and other witnesses being absent, fresh summons were issued and the matter was adjourned to 29.10.2004. It seems that the case could not be taken up on 29.10.2004 because of curfew in the area, and on 01.11.2004 it was adjourned to 16.11.2004. In the meantime, again this writ petition was taken up by this Court on 03.11.2004 and after hearing learned counsel for the 6 parties, this petition was admitted and pending its final disposal, further proceedings in the trial court were ordered to remain stayed. Of course, hearing of the writ petition was expedited. Learned counsel Mr.S.L.Jain appearing for the petitioner strenuously contended while assailing the impugned order that the learned trial court has acted wholly illegally in rejecting the substantial applications submitted by the petitioner seeking to incorporate such averments in the written statement which go to the very root of the matter and strike at the very bottom of the case of the plaintiff in his alleged entitlement to obtain specific performance of the agreement. Learned counsel Mr.Jain with reference to Section 17 of the Act of 1973 and with reference to the decision of the Hon'ble Allahabad High Court in Balbir Singh Vs.Arjun Singh : AIR 2000 Allahabad 37 submitted that the plaintiff is not entitled to get this agreement specifically performed, even if he is able to establish its existence, because in the event of it being specifically performed, his holdings would exceed the ceiling limit; and such acquisition of holdings remains impermissible in law. Learned counsel referred to the decisions in Firm Janki Lal Ram Das Vs. Mohan Das : 1986 RLR 433 and Tarachand Vs. Smt.Kishan Pyari : 2002 (3) WLN 479 to submit that the amendments which are necessary for determination of the real questions in controversy between the parties and which go to the root of the matter deserve to be allowed and ought not be refused. Learned counsel also 7 referred to the decision of this Court in Santveer Singh Vs. Addl. Civil Judge, Hanumangarh & another : 2004(2) DNJ (Raj.) 675 and submitted that the application under Order 8 Rule 1A CPC submitted by the petitioner for taking the documents on record in relation to the other holdings of the plaintiff ought to have been allowed. Learned counsel further referred to the decision of the Hon'ble Supreme Court in Rajesh Kumar Aggarwal and others Vs. K.K.Modi and others : 2006 AIR SCW 1538 to submit that merits of the amendment are not required to be examined for the purpose of considering the application for amendment in the pleadings. Learned counsel for the respondent Mr.N.L.Joshi emphatically refuted the submissions made on behalf of the petitioner with the submissions that the application for amendment was fundamentally incompetent for having been moved after the trial had commenced and the learned trial court has not erred in rejecting the same. Learned counsel further submitted with reference to the decision of the Hon'ble Supreme Court in Mrs.Chandnee Widya Vati Madden Vs.Dr. C.L. Katial and others : AIR 1964 SC 978 that when the parties have agreed to bind themselves by the terms of the document executed between them, the same is required to be enforced and the settled terms cannot be avoided by the defendant-petitioner. Learned counsel further submitted that the document stipulates execution of the requisite deed in favour of the plaintiff or any person at the instructions of the 8 plaintiff and, therefore, it cannot be said that the document can never be put to specific performance in its true manner, import and effect. Mr.Joshi further submitted that the parties are step brothers and entire holdings of the parties are known to each other and if such kind of an objection was at all to be taken, nothing prevented the petitioner from taking this objection in his written statement and the application submitted after framing of the issues and after trial had commenced cannot be said to be bona fide and has rightly been rejected. Having heard learned counsel for the parties and having perused the material placed on record and having examined the considerations adopted by the learned Addl.District Judge (Fast Track), Anoopgarh while passing the order dated 21.09.2004, this Court is clearly of opinion that the impugned order cannot be sustained and deserves to be set aside. A look at the order dated 21.09.2004 makes it apparent that while deciding the two applications, under Order 6 Rule 17 and Order 8 Rule 1A CPC, what the learned trial Judge has done is to recite the contents of the applications in paragraphs 1 and 2; and then the contents of the reply in paragraph 3; and while stating in paragraph 4 that arguments were heard and record was perused, the arguments of learned counsel for the parties have been stated in paragraphs 5 and 6. Thereafter, again saying in paragraph 7 that arguments were heard, the learned Judge has purportedly 9 proceeded with the consideration of the arguments from paragraph 8 onwards, but in fact in paragraph 8 and in larger part of paragraph 9 of the impugned order, again the learned Judge has proceeded to recite the submissions made on behalf of the defendant and the plaintiff respectively. Thereafter, the entire consideration of the learned trial Judge from the middle of paragraph 9 and conclusion in paragraph 10 read thus,- “ पर त गई पर । आर.एल. .1974 40, .एन. . 2004(2) .866, .एन. . 2004(2) .639, .एन. . 1998 . 324, .एन. . 1996 एस. . 93, आर.एल. .2003 (4) .2646 इस : मदद : और पर : और अतएव अतएव यह अ. 6 17 151 . . . व 8 1(3) . . . आशय गए इस . छ: 10- अत: 10 त . 6 17 151 . . . व 8 1(3) . . . 100/- पर " Merely on and with the considerations aforesaid, the applications under Order 6 Rule 17 and under Order 8 Rule 1A(3) CPC have been rejected. Such a perfunctory approach of learned trial Judge while disposing of the applications cannot be appreciated. Substantial grounds were put forward by the petitioner in support of the applications that for the reasons spelt out in the applications, the plaintiff is not entitled to seek specific performance of the agreement. Whether ultimately such objections are sustained or rejected after trial and after adjudication on the questions of facts and law is a matter entirely different, but none of the relevant considerations, particularly as to whether the amendment sought for has any relevance and is necessary for determination of real questions in controversy, have even gone into the process of reasoning of the trial judge; instead, the learned Judge has merely proceeded to consider the so-called delay in disposal of the suit and then has merely referred to the directions of this Court for disposal of the suit within six months and this much only has been taken to be sufficient to reject the applications. This Court is clearly of opinion that the Rules of procedure are intended to subserve the cause of justice; and when this Court has directed to expedite the trial of the suit and decide the same 11 within six months, the directions are meant to be complied with by promptitude and dispatch; but it could never mean that for this reason alone, the learned trial court would not consider any matter on its merit or on its substance. The plaintiff has opposed the prayer for amendment in the written statement fundamentally on the ground that if such amendment would be permitted, that would be enlarging the scope of the trial of the suit; and that another question regarding applicability of the law of ceiling and the entitlement of the plaintiff and his family with respect to the law of ceiling would crop up that is neither within jurisdiction of the Court nor within the periphery of the subject matter of the suit. This Court is clearly of opinion that such an objection is not sufficient to disallow a prayer for amendment in the pleadings nor the objection is well founded. The defendant in a suit for specific performance is entitled to show to the court the reasons which may operate against the plaintiff in his entitlement to seek specific performance. The relief of specific performance being essentially a relief in equity can be granted only after the court is satisfied about existence of all equitable considerations in favour of the plaintiff. Further more, while granting specific performance of an agreement, the court would be required to consider its enforceability. If the defendant seeks to take objection about entitlement of the plaintiff to get the relief of specific performance for the reason that under the law of 12 ceiling the existing land holdings of the plaintiff would disentitle him to hold further, this Court is clearly of opinion that raising of such plea cannot be denied and mere permitting the plea does not ipso facto mean allowing the same. Having regard to all the facts and circumstances of the case, this Court is of opinion that in view of the law explained by the Hon'ble Supreme Court in the recent decision in Rajesh Kumar Aggarwal(supra), the application for amendment in the present case ought not to have been disallowed. The Hon'ble Supreme Court has been pleased to hold,- “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.” The plea sought to be raised in the present case cannot be said to be a plea inconsistent with the stand already taken by the defendant; cannot be said to be falling outside the scope of the suit; cannot be said to be entirely irrelevant; and cannot be said to be mala fide either. There appears no reason to disallow the amendment prayed for. The inference suggested by the plaintiff-respondent that the parties being step brothers, the holdings were known to the 13 defendant cannot be countenanced inasmuch as it cannot be assumed that exact holding of the plaintiff and his family is always required to be known to his step brother. Although the plaintiff has alleged various litigations to which the parties had been through, this Court is of opinion that even if it be assumed by way of streched inferences that some part of the holdings were known to the defendant, it cannot be said that for such reason alone, he cannot seek amendment in the written statement to take an objection against entitlement of the plaintiff to obtain specific performance. The submission of learned counsel for the respondent with reference to the decision of the Hon'ble Supreme Court in Mrs.Chandnee Widya Vati Madden's case (supra) essentially relates to the merits of the case and this Court would not like to express any opinion on the merits of the case and whatever observations have been made herein are only for the purpose of considering the applications for amendment and for production of the documents in relation to such amendment and not beyond. So far the stage of proceedings is concerned, it appears clear on record that on the date the application for amendment was moved by the petitioner, although issues had been framed; but the plaintiff himself had moved applications after framing of issues for summoning of the documents and record; and the matter was pending awaiting the record. Before any affidavit in evidence was submitted in the court and before any witness was examined, the 14 application for amendment was moved on 03.09.2004. It cannot be said that the application was moved after the trial has commenced. Within the meaning of proviso to Rule 17 of Order 6 of the Code of Civil Procedure, mere framing of issues cannot be said to be the commencement of trial. In the context of the said proviso, the commencement of trial could be considered only when actual evidence is adduced and not before. Relevant it is to notice that even after commencement of trial, the amendment necessary for the purpose of determining real questions in controversy could be allowed subject of course that the party concerned must be found to be diligent. Ordinarily while setting aside the impugned order refusing the application for amendment, this Court would have remitted the matter back to the trial court for consideration of the application afresh, however, having regard to the order dated 29.09.2004 passed in this case whereby this Court permitted the petitioner to cross-examine the plaintiff and his witnesses on the aspect about the plaintiff holding another land, protecting the rights of the petitioner to put forward such defence in the trial; and having regard to the status of the record where substantial number of witnesses have already been examined before further proceedings were ordered to be stayed, this Court considers it appropriate to set aside the impugned order and so also to allow the applications in order to avoid further delay in the trial of the suit. 15 It is also required to be made clear that for the reason of allowing of this amendment, no cross-examination would be permitted in relation to the witnesses examined after 29.09.2004 when this Court permitted the petitioner to cross-examine the plaintiff and his witnesses on the question of holdings of the plaintiff and till 03.11.2004 when this Court stayed further proceedings. However, before passing of the order dated 29.09.2004, the plaintiff, PW-1 Mallu Ram was examined on 27.09.2004, hence, so far the plaintiff PW-1 is concerned, if the petitioner seeks his cross- examination over again in relation to the amendment being allowed by this order, the trial court shall permit the same. So far the application under Order 8 Rule 1A CPC is concerned, the same was submitted for the purpose of filing the document in support of the plea sought to be raised by way of amendment and as a necessary corollary to the order allowing amendment, such application also deserves to be allowed. The amended written statement may be filed within fifteen days from today and the learned trial court will proceed with the trial of the suit keeping in view the observations made hereinbefore and also keeping in view the fact that this Court had already directed to expedite the trial. The learned trial court, therefore, shall take up trial of the suit in priority and proceed with the same most expeditiously. As a result of the aforesaid, this writ petition succeeds and is allowed. The impugned order dated 21.09.2004 is quashed and set 16 aside and the applications submitted by the petitioner under Order 6 Rule 17 read with Section 151 and under Order 8 Rule 1A(3) CPC are allowed. However, there shall be no order as to costs of this writ petition. Record be sent back immediately. (DINESH MAHESHWARI),J. MK