IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Rev. No.4914 of 2006 Date of decision : 09.10.2009 Puran Lal …. Petitioner Versus Jeewan Lal …. Respondent Present: Mr. Raj Mohan Singh, Advocate for the petitioner. Mr. Amit Jain, Advocate for the respondent. **** S.S. SARON, J. The petitioner seeks quashing of the order dated 23.8.2006 (Annexure P7) passed by the learned Civil Judge (Junior Division), Faridabad whereby the application filed by the plaintiff/respondent Jeewan Lal for amendment of the plaint has been allowed. The defendant/petitioner it is alleged entered into an agreement of sale dated 24.9.1996 with the plaintiff/respondent to sell his lease hold rights in respect of plot measuring 50 sq. yards situated in Mauja Baselwa, Tehsil and District Faridabad for a consideration of Rs.62,500/-. It is alleged by the plaintiff/respondent that the defendant/petitioner received Rs.52,500/- as part payment and the sale deed was to be executed by the defendant-petitioner on or before 23.9.1997. The plaintiff/respondent filed a suit against the defendant/petitioner for restraining him from alienating or disposing of the suit property or from raising construction thereon. The plaintiff/respondent also filed an application under Order 39 Rules 1 Civil Rev. No.4914 of 2006 [2] and 2 of the Code of Civil Procedure (“CPC” – for short) for the grant of ad interim injunction in this regard. The application for interim injunction was declined by the learned Civil Judge (Jr. Division), Faridabad vide order dated 9.2.2005 (Annexure P1). Against the said order, the plaintiff/respondent filed an appeal, which was assigned to the learned Additional District Judge/Fast Track Court-III, Faridabad. During the pendency of the appeal, the plaintiff/respondent filed an application (Annexure P2) for withdrawing the appeal as well as the suit with permission to file a fresh suit against the defendant/petitioner. The defendant/petitioner filed his reply (Annexure P3) to the aforesaid application seeking withdrawal of the appeal as well as the suit. The learned Additional District Judge vide order dated 10.9.2005 (Annexure P4) allowed the appeal to be withdrawn with liberty to the plaintiff/respondent to make a prayer for withdrawal of the suit before the learned trial Court in accordance with law. The plaintiff/respondent, however, instead of withdrawing the suit filed an application (Annexure P5) seeking amendment of the suit. Reply (Annexure P6) was filed by the defendant/petitioner to the said application. The learned Civil Judge (Jr. Division), Faridabad vide impugned order dated 23.8.2006 (Annexure P7) has allowed the application for amendment of the plaint. The said order is assailed in the present petition. Learned counsel for the petitioner has contended that the plaintiff/respondent in compliance to the order dated 10.9.2005 (Annexure P4) passed by the learned Additional District Judge, Faridabad was liable to only pray for withdrawal of the suit and was estopped from seeking amendment of the plaint. It is submitted that Civil Rev. No.4914 of 2006 [3] the plaintiff/respondent in order to fill up the lacuna in his plaint and scuttle the defence of the petitioner filed an application for amendment of the plaint. It is submitted that in fact a suit for specific performance of contract was liable to be filed by the plaintiff/respondent in which case the defence open to the defendant/petitioner in terms of Order 2 Rule 2 CPC would have been available to him and could be taken. Therefore, a right of defence of the defendant/petitioner, it is submitted, has been affected. It is also submitted that the application for amendment at such a stage was not maintainable when in the proceedings arising out of the suit for injunction, a categoric judicial order had come on record. Therefore, the impugned order is liable to be set aside. In response, learned counsel for the plaintiff/respondent has submitted that the application seeking amendment of the plaint was very much maintainable and had been filed after, the order dated 10.9.2005 (Annexure P4) was passed by the learned Additional District Judge, Faridabad allowing the petitioner to withdraw the appeal and to make a prayer before the learned trial Court for withdrawal of the suit. It is submitted that before making a prayer for withdrawal of the suit before the learned trial Court, the plaintiff/respondent sought amendment of the suit which has been allowed. Therefore, there is no infirmity in the impugned order dated 23.8.2006 (Annexure P7) passed by the learned Civil Judge (Jr. Division), Faridabad. I have given my thoughtful consideration to the contentions of the learned counsel appearing for the parties and with their assistance gone through the records. The case of the Civil Rev. No.4914 of 2006 [4] plaintiff/respondent is that vide agreement dated 24.9.1996, he had agreed to purchase the lease rights in respect of 50 sq. yards of land situated in Mauja Baselwa, Tehsil and District Faridabad. The date of execution of the sale deed was fixed on or before 23.9.1997. The plaintiff/respondent filed a suit for restraining the defendant/petitioner from alienating or disposing of the suit property and from raising any construction thereon. Along with the suit, an ad interim injunction in terms of Order 39 Rule 1 and 2 CPC was sought which was declined by the learned Civil Judge (Jr. Division), Faridabad vide order dated 9.2.2005 (Annexure P1). The plaintiff/respondent filed an appeal against the said order and during the pendency of the appeal, he filed an application dated 3.9.2005 (Annexure P2) seeking withdrawal of the appeal as well as the suit with permission to file a fresh suit. The learned Additional District Judge, Faridabad vide order dated 10.9.2005 (Annexure P4) allowed the appeal filed by the plaintiff/respondent to be withdrawn and gave liberty to him to make a prayer for withdrawal of the suit before the learned trial Court in accordance with law. The plaintiff/respondent, however, instead of withdrawing the suit filed an application (Annexure P5) for amendment of the plaint, which has been allowed by the learned trial Court vide impugned order dated 23.8.2006 (Annexure P7). The plaintiff/respondent in his application (Annexure P2) seeking withdrawal of the appeal as well as the suit with liberty to file a fresh one stated that there had been misrepresentation on the part of the defendant/petitioner inasmuch as he had disclosed that there was no litigation with regard to the suit property and as such it was free from all encumbrances, charges, lien etc. whereas he later Civil Rev. No.4914 of 2006 [5] stated at the time of execution of the agreement as well as the date on which the sale deed was to be executed i.e. on 23.9.1997 that there was some litigation with respect to the said property. It was further stated by the defendant/petitioner that as and when the litigation came to an end, he would issue a legal notice to the plaintiff/respondent within a period of one year and then would execute a sale deed of lease hold rights in favour of plaintiff/respondent. In this regard, an endorsement was made on 23.9.1997 on the back of the agreement dated 24.9.1996. During the course of the arguments, the defendant/petitioner disclosed that there was no litigation with regard to the suit property and that it was free from all encumbrances. In the said circumstances, the plaintiff prayed to file a fresh suit for specific performance for proper adjudication. In the reply (Annexure P3) filed by the defendant/petitioner it is stated that in case the plaintiff/respondent wants to withdraw the suit with permission to file a fresh one, he may move such an application before the learned trial Court and the application (Annexure P2) filed by the plaintiff/respondent was not maintainable. It is stated that the plaintiff/respondent was a clever person and under the garb of the application (Annexure P2) he wants to fill up the lacunae of limitation. The suit for specific performance, it is stated, is barred by limitation. The learned Civil Judge (Jr. Division), Faridabad in his impugned order dated 23.8.2006 (Annexure P7) considered the objection raised by the plaintiff/respondent and also noticed the endorsement made on 23.9.1997 on the back of the agreement dated 24.9.1996 in which it is stated that the defendant/petitioner could not alienate the land in question to the plaintiff/respondent as a dispute Civil Rev. No.4914 of 2006 [6] with regard to the said land was pending before the Court. It was observed that the defendant/petitioner was under an obligation to inform the plaintiff/respondent as and when the dispute was resolved. There was nothing on record to show whether the defendant/petitioner had informed the plaintiff/respondent regarding the litigation being resolved. The plaintiff/respondent came to know about the end of the litigation during the appeal filed against the order dated 9.2.2005 (Annexure P1) whereby interim injunction had been declined to him (plaintiff). It was observed that the nature of the suit was not going to change by amendment of the suit from injunction to that of specific performance of contract. The grievance of the defendant/petitioner that the plaintiff/respondent was liable to move an application for withdrawal of the suit and could not seek amendment of the plaint, is devoid of merit as the plaintiff/respondent has availed his lawful remedy of seeking amendment of the plaint instead of withdrawing it. The plaintiff/respondent could have filed an application seeking amendment of the plaint in terms of Order 6 Rule 17 CPC and he having availed the same, it cannot be said that he was estopped from availing the remedy of seeking amendment of the plaint as there is no estoppel against law. The other grievance of the defendant/petitioner is that his ground of defence in terms of Order 2 Rule 2 CPC has been affected in case the suit was withdrawn and a fresh suit for specific performance was filed is also devoid of merit as the plaintiff/respondent was seeking withdrawal of the suit with liberty to file a fresh suit. Such a relief could have been granted to the plaintiff/respondent in terms of Order 23 Rule 3 CPC. Therefore, in Civil Rev. No.4914 of 2006 [7] case liberty to file a fresh suit was granted, the ground of defence under Order 2 Rule 2 CPC would not be available to the defendant/petition and in case liberty was not granted to the plaintiff/respondent to file a fresh suit after withdrawing the suit, the plaintiff/respondent still had an option of seeking amendment. The other grievance that the right of limitation of the defendant/petitioner is affected, is also not of much consequence and the plea of the suit being barred by limitation can be raised by the defendant/petitioner in his written statement. In Ragu Thilak D. John vs. S. Rayappan and Others, 2001 (2) SCC 472, it was held by the Supreme Court that where it is arguable that relief sought by way of amendment would be barred by law of limitation, the amendment should still be allowed and the disputed matter made the subject matter of an issue. The dominant purpose of allowing the amendment, it was observed, is to minimize the litigation and the plea that the relief sought by way of amendment was barred by limitation could be a subject matter of the issue after allowing the amendment prayed for. In Pankaja v. Yellappa, (2004) 6 SCC 415, the plaintiff therein had filed a suit seeking possession of a suit property. Six years’ later, he filed an application to amend the plaint to seek also the relief of declaration of the plaintiff’s ownership of that property. The defendant therein opposed the amendment application pleading that in view of Article 58 of the Limitation Act the said application was barred by limitation. The plaintiff disputed the defendant’s allegation by contending that in view of Article 64 or Article 65, the amendment sought by him was within limitation. The Hon’ble Supreme Court allowed the amendment and directed the trial Court to Civil Rev. No.4914 of 2006 [8] frame necessary issue in that regard and decide the same keeping in view the law laid down in L.J. Leach and Co. Ltd. and another vs. M/s Jardine Skinner and Co., AIR 1957 SC 35. In Kuljit Singh v. Sukhdev Singh and Others, 2009 (3) RCR (Civil) 751 (P&H), the purchaser had filed a suit for permanent injunction for directing the seller not to alienate the property. After two years the purchaser prayed for amending the plaint by converting the suit to a suit for possession by way of specific performance of the agreement. The amendment was allowed. It was held that if amendment was not allowed the purchaser could file a fresh suit for specific performance of contract. Amendment was allowed to avoid multiplicity of proceedings. Therefore, in case the defendant/petitioner is to raise defence of limitation, he may raise the same in his written statement. However, the fact that he has a right of limitation, in the circumstances, is an arguable issue and therefore, the amendment having been allowed would not warrant interference of this Court in exercise of its revisional jurisdiction. Consequently, there is no merit in this petition and the same is accordingly dismissed. (S.S. SARON) JUDGE October 09, 2009 amit