CR No.4203 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.4203 of 2009 (O&M) Date of Decision: 29.7.2009 M/s Hundustan Petroleum Corporation Ltd. ..Petitioner Vs. M/s Kaintal Auto Enterprises & Anr. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Anil Malhotra, Advocate, for the petitioner. Mr.J.S.Brar, Advocate, for Mr.R.K.Battas, Advocate, for the caveator/respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) CMNo.17295-CII of 2009 This application has been filed under section 151 of the Code CR No.4203 of 2009 2 of Civil Procedure for exemption from filing the certified copies of Annexurs. For the reasons stated in the application, the prayer is granted. CM stands allowed. CR No.4203 of 2009 M/s Hundustan Petroleum Corporation Ltd./petitioner has invoked the jurisdiction of this court under Article 227 of the Constitution of India to challenge the order dated 15.6.2009 passed by the learned Civil Judge (Senior Division), Patiala dismissing an application moved under Order 6 Rule 17 of the Code of Civil Procedure (for short the Code) for the amendment of the plaint. The plaintiff/petitioner filed a suit for specific performance of memorandum of agreement dated 2.1.1976, with regard to the land measuring 1600 square yards i.e. 1 Bigha 12 biswas forming part of Khewat No..721/712 Khatuni No.1761/1681 Khasra No.687/543 Min (10-5) to the extent of 1 Bigha 12 Biswas i.e. 1600 sq. yards situated within the revenue estate of Badungar as per jamabandi for the year 2003-04. Along with the suit an application under Order 39 Rules 1 and 2 of the Code, was also moved which was ordered to be dismissed by the learned trial court. The order was affirmed by the learned lower appellate court. The petitioner challenged the said order by filing Civil Revision No.789 of 2009. Said revision was dismissed on 12.2.2009. It was observed by this court that injunction could not be granted in respect of the CR No.4203 of 2009 3 property which was yet not included in the suit. A stand was taken before this court that the application had been moved before the learned trial court for amendment of suit. The order was passed on 12.2.2009 by this court. After the dismissal of revision, application was moved for the amendment of the suit, to plead the enforcement of agreement dated 1.3.2004 said to be on the same terms and between the same parties. Learned trial court has been pleased to dismiss the application by recording an order, the operative part of which reads as under:- “12. If the order in Civil Revision No.789 of 2009 is seen it is clearly recorded that “memorandum of understanding dated 2.1.1976 was mistakenly given, in the notice served by the defendant to the plaintiff expressing an intention to close the business. The learned counsel for the plaintiff admits his mistake in plaint and states that he has moved an application before the trial court for amendment.” It has been directed by the Hon'ble High Court that if any application is pending for amendment, he will have such remedy as it is possible before the very same authority where the application is pending. If any application is moved before the trial court, it shall duly consider the application and pass appropriate order expeditiously. This order is dated 12.2.2009 and the plaintiff moved the present application for amendment on 9.3.2009 well beyond the date 12.2.2009. If this is so, learned counsel for the plaintiff has not shown the real picture before the Hon'ble High CR No.4203 of 2009 4 Court. If the application for amendment is seen plaintiff want to substitute agreement dated 1.3.2004 with agreement dated 2.1.1976 and it will change the entire nature of the present suit because earlier the plaintiff seeks specific performance of agreement dated 2.1.1976 and now he wants to include agreement dated 1.3.2004 also and it has no where pleaded by the plaintiff that despite due diligence agreement dated 1.3.2004 cannot be pleaded. If this agreement was within the knowledge of plaintiff they could have filed the suit there and then. The authorities cited by the learned counsel for the plaintiff are not applicable to the facts and circumstances of present case, rather plaintiff wants to change the nature of present suit by substituting agreement dated 1.3.2004 with earlier agreement dated 2.1.1976, question of limitation also arise and the amendment as such will be detrimental to the rights of defendant who is old ailing man, as such, application of the plaintiff for amendment is not maintainable and the same is hereby ordered to be dismissed.” It would be seen that the learned court has been pleased to dismiss the application, on the ground that by way of amendment new cause of action is sought to be pleaded, and that the plaintiff wants to change the nature of the suit by substituting the agreement for which specific agreement is sought for. Mr. Anil Malhotra, learned counsel appearing on behalf of the CR No.4203 of 2009 5 petitioner challenges the impugned order on the plea that there is admission of the respondent/defendant that he had shifted his petrol pump from city limit to Bhupinder Nagar. It is further the contention of the learned counsel for the appellant that the agreement dated 2.1.1976 and the one dated 1.3.2004 are identical, and between the same parties, and that the petitioner is dealing with essential commodity. A right has been conferred, under the terms of the agreement to purchase the property of the dealer. Therefore, the court ought to have allowed the application for amendment of the plaint to seek enforcement of the subsequent agreement also. It is also the contention of the learned counsel for the petitioner that the amendment sought was necessary to determine the real controversy between the parties. However, the contentions raised by the learned counsel for the petitioner cannot be accepted. It may be noticed that in the application moved under Order 39 Rules 1 and 2 of the Code, it was pointed out that the land in dispute is not covered under the agreement dated 2.1.1976. Amendment sought was, in fact, an attempt to fill in lacuna. It is well settled law that by way of amendment, a new cause of action cannot be substituted for the old one, especially when by way of amendment, two agreements are now sought to be enforced, which cannot be permitted. Application was also not bona fide as would be clear from the fact that in this court a wrong stand was taken, that an application under Order 6 Rule 17 of the Code had already been moved which, in fact, was moved after the decision of this court. CR No.4203 of 2009 6 Findings recorded by the learned trial court in dismissing the application are based on established principle of law which do not call for interference by this court in exercise of revisional jurisdiction under Article 227 of the Constitution of India. No merit. Dismissed. 29.07. 2009 (Vinod K.Sharma) rp Judge