Civil Revision No. 1669 of 2010 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 1669 of 2010 (O&M) Date of decision: 4.5.2010 Davinder Singh .. Petitioner v. Nachattarr Singh and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Chaman Lal, Advocate for the petitioner. None for the respondents. .. Rajesh Bindal J. The plaintiff is before this Court challenging the order dated 19.1.2010, passed by the learned court below, whereby the application seeking amendment of the plaint was dismissed and further order dated 2.9.2009, whereby the application filed by the petitioner-plaintiff seeking permission to withdraw the suit with liberty to file a fresh one on the same cause of action, was dismissed. At the time of hearing, learned counsel for the petitioner confined the petition regarding challenge to the order rejecting the application for amendment of the plaint. Briefly, the facts are that the petitioner-plaintiff filed a suit for permanent injunction seeking restrain against the respondents from dispossession. In the plaint, the petitioner stated that previously the respondents-defendants were owners of the suit land, measuring 40 kanals and 21 marlas. They mortgaged the same in favour of the petitioner-plaintiff vide mortgage deed dated 20.5.1994 and delivered the possession to him. Since then he is in possession of the suit land. Subsequently, respondent No. 1 agreed to sell the suit land measuring 38 kanals and 18 marlas vide agreement to sell dated 11.12.2002 and delivered the physical possession of the suit land. He agreed to execute the sale deed in favour of the petitioner as and when preferred by the petitioner. There was no time limit fixed for execution of the sale deed. As possession of the petitioner was sought to be threatened by the respondents-defendants, suit for permanent injunction was filed. Though in the suit filed by the petitioner-plaintiff, the learned court below granted Civil Revision No. 1669 of 2010 [2] status quo regarding possession, but no interim stay regarding alienation of the property in question was given. The respondents-defendants though served but on their failure to appear in the court, were directed to be proceeded against ex parte. Subsequent to the filing of the suit on 24.3.2008, the respondents-defendants sold the property in question to Balkar Singh son of Vishal Singh and Gurmeet Kaur wife of Balkar Singh vide registered sale deed dated 12.6.2008. After the registration of sale deed in favour of Balkar Singh and Gurmeet Kaur, they mortgaged the land in question with State Bank of Patiala on 12.9.2008. It was at this stage that the petitioner having come to know about the subsequent sale and mortgage of the property, initially filed an application seeking permission to withdraw the suit to file a fresh one on the same cause of action, which was dismissed on 2.9.2009 and thereafter application seeking amendment of the plaint praying for the relief of specific performance of agreement to sell and further setting aside of the sale deed executed by the respondents-defendants in favour of Balkar Singh and Gurmeet Kaur. The application for amendment having been rejected, the petitioner-plaintiff is before this Court. Learned counsel for the petitioner submitted that in the agreement to sell executed by the respondents on 11.12.2002, it is specifically mentioned that entire sale consideration for the land in question had already been paid by the petitioner to the respondents-defendants and possession of the property in question had also been delivered. It was further mentioned that the petitioner shall be entitled to get the sale deed registered at any time in his name or in any one else's name. Meaning thereby there was no limitation provided for execution of the sale deed. Initially, as was guided by the counsel in the court below, suit for permanent injunction was filed, however, when during the pendency thereof after the respondents were proceeded against ex parte, they sold the property in question to Balkar Singh and Gurmeet Kaur, necessity arose to amend the plaint to challenge the sale deeds and also to pray for relief of specific performance of agreement to sell. As these were the new developments, which took place during the pendency of the suit, the same could very well be taken care of by way of amendment in the plaint to avoid multiplicity of litigation. The defendants-respondents were already ex parte. The suit was at the initial stage. The amendment will not change the nature of the suit. The relief claimed by the petitioner cannot be said to be time barred, as in the agreement to sell, there was no time limit fixed for execution of the sale deed. In fact, the cause of action to the petitioner arose with the registration of sale deed regarding the property in question in favour of Balkar Singh and Gurmeet Kaur. Judgment of Hon'ble the Supreme Court in Sampath Civil Revision No. 1669 of 2010 [3] Kumar v. Ayyakannu and another, 2002(4) RCR (Civil) 566 was relied upon to submit that amendment seeking determination of real question between the parties should be permitted. In that case, the suit for permanent injunction was permitted to be converted into a suit for possession on the ground that possession was taken illegally during the pendency of the suit and especially when fresh suit for seeking that relief was not barred. Rajesh Kumar Aggarwal and others v. K. K. Modi and others, AIR 2006 SC 1647 was relied upon to submit that merits of the proposed amendment should not be gone into at the stage of consideration of application for amendment. The respondents were proceeded against ex parte even before the court below and they could not be served even before this court. As they were not defending even the suit filed against them, this court proceeded to hear the present petition on merits in their absence instead of unnecessarily delaying the same, as it would have resulted in delaying the suit as well. After hearing learned counsel for the petitioner, I find merit in the submissions made by him. Once the petitioner-plaintiff had been able to establish on record that cause of action seeking amendment of the plaint for the relief sought to be claimed had arisen with regard to the suit property during the pendency of the suit, there was no reason for the court not to have allowed the amendemnt in the pleadings. Initially, the suit for permanent injunction was filed, as the petitioner- plaintiff claimed that he was put in possession of the property by the respondents- vendors after he had paid the entire sale consideration and that possession was being threatened. There was no time limit fixed for execution of the sale deed, which could be registered at any time at the option of the petitioner-vendee. It is only after the respondents came in knowledge of the pendency of the litigation and also the fact that interim stay granted to the petitioner was merely regarding possession of the property, they transferred the same in favour of Balkar Singh and Gurmeet Kaur vide registered sale deed dated 12.6.2008. Thereafter, the petitioner filed application seeking relief of specific performance of agreement to sell dated 11.12.2002 executed by the respondents in his favour. It cannot be disputed that the petitioner can file a fresh suit seeking relief of specific performance of agreement to sell. The question of limitation can very well be decided. It has been consistently opined by the courts that to avoid multiplicity of litigation if the entire controversy can be resolved in one litigation, the same should be encouraged. The factual position in the present case is similar. As the property in dispute is the same regarding which a new relief is sought to be claimed, cause of action for which, according to the petitioner, arose during the pendency of the suit, in my opinion, Civil Revision No. 1669 of 2010 [4] the amendment application filed by the petitioner deserves to be allowed. As far as limitation for claiming the relief of specific performance of agreement to sell is concerned, the same can very well be considered by the court at the time of determination of the issue finally. At the threshold, it cannot be opined in the present case that such a relief is time barred, considering the argument of the learned counsel for the petitioner that there is no time limit fixed in the agreement to sell for execution of the sale deed. For the reasons mentioned above, the present petition is allowed. The impugned order dated 19.1.2010, passed by the learned court below rejecting the application for amendment of the plaint is set aside and the amendment application is allowed. (Rajesh Bindal) Judge 4.5.2010 mk