Civil Revision No. 1580 of 2009 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 1580 of 2009 (O&M) Date of Decision: 30.8.2010 Dharam Pal and another .....Petitioners Versus Balwant Singh and others ….Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri Rajinder Goel, Advocate and Shri R.K. Bansal, Advocate, For the petitioners. Shri Arun Palli, Senior Advocate, with Shri Sunil Garg, Advocate, for the respondents. Hemant Gupta, J. (Oral) Challenge in the present petition is to the order dated 6.3.2009 passed by the learned trial Court, whereby an application filed by the plaintiff-petitioners for amendment of the plaint was declined. The petitioners fled a suit for mandatory injunction on the basis of an agreement to sell dated 10.2.1981. As per the plaintiffs, the sale deed was to be executed on sanction of the mutation in favour of the defendants, which was sanctioned on 29.5.1985. Therefore, the cause of action has arisen on the said date. The said suit was filed on 8.11.1987. During the pendency of the suit Civil Revision No. 1580 of 2009 (O&M) [2] on 24.4.1992, the plaintiffs affixed Court fee on the total sale consideration as per the agreement dated 10.2.1981. The learned trial Court decreed the suit for recovery of the earnest money of Rs.6,000/- on 30.8.1994. In the appeal filed by the plaintiffs, the learned first Appellate Court decreed the suit in its entirety on 13.1.1999. In Regular Second Appeal No. 1038 of 1999, vide order dated 11.8.1999, the matter was remitted back to the trial Court with the following observations:- “7. In these circumstances, I interfere and set aside the judgments and decrees of both the Courts below and remand the case to the trial Court with the observations that it will always be open to the plaintiff- respondents to file an application under Order 6 Rule 17 CPC so as to amend the plaint into a suit for specific performance. The plaintiffs will also be at liberty to claim the damages or in the alternative to claim refund of the earnest money. In the event of the filing of the application moved under Order 6 Rule 17 read with Section 151 CPC, such application shall be disposed of by the trial Court according to law and it will always be open to the appellants to raise all the legal objections including the point of limitation. The parties through their counsel are directed to appear before the trial Court on 3.9.1999.” After the said order was passed, the suit was dismissed for non-prosecution and it was on 4.2.2009, this Court ordered restoration of the suit to its original number and permitted the petitioners to file an application for amendment of the plaint. On filing of such application, the trial Court has declined amendment in the plaint vide the order impugned in the present petition. Learned counsel for the petitioners has vehemently argued that having affixed the Court fee on the agreed amount of sale consideration, the amendment sought is only in the nomenclature of the suit. The plaintiffs have made averments in respect of their ready Civil Revision No. 1580 of 2009 (O&M) [3] and willingness to seek specific performance of the agreement dated 10.2.1981. Therefore, the trial Court should have allowed amendment in the plaint as sought by the petitioners. It is also argued that the plaintiffs were permitted to file an application for amendment of the plaint with liberty to the defendants to raise such plea including that of limitation, by this Court. Therefore, it was incumbent upon the trial Court to allow the application and to permit the defendants to raise the plea of limitation, if available in law. After hearing learned counsel for the parties at some length, I find that the order passed by the learned trial Court suffers from patent illegality and irregularity. The amendment sought for is only in the cause title as the proper Court fee on the sale consideration as per the agreement to sell stands already affixed. This Court has permitted the petitioners to seek amendment in the plaint. Liberty was also given to the defendants to raise all the pleas as may be available to the defendants in law, including that of limitation. Therefore, the learned trial Court should have allowed the amendment and permitted the defendants to file a fresh written statement. It was open to the defendants to raise such pleas as may be available in law, but to say that the plaintiffs are not entitled to amend the plaint so as to claim a decree for specific performance, is not tenable. Consequently, the present revision petition is allowed. The impugned order is set aside. The plaintiff-petitioners are permitted to amend the plaint as prayed for. It shall be open to the defendants to raise all such pleas, as may be available to them, in accordance with law. [ HEMANT GUPTA ] JUDGE 30.8.2010 ds