C.R. No. 2260 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 2260 of 2009 (O&M) Date of Decision: 2.09.2009 Avtar Singh ...Petitioner Vs. Gulzar Singh & Ors.. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Anil Chawla, Advocate, for the petitioner. Mr.B.R.Mahajan, Advocate, for respondents No.1 and 2. --- Vinod K.Sharma,J. (Oral) CM No.9525-26-CII of 2009 Allowed as prayed for. CM No.16643-CII of 2009 Allowed. Service on respondents No. 3 to 5 is dispensed with. CR No.2260 of 2009 This revision is directed against the order dated 18.4.2009 passed by the learned Civil Judge ((Sr.Division), Amritsar vide which C.R. No. 2260 of 2009 2 application made by the petitioner under Order 6 Rule 17 of the Code of Civil Procedure (for short the Code) stands dismissed. The petitioner/plaintiff filed a suit for possession by way of specific performance of agreement to sell dated 14.3.1995 qua land measuring 27 kanals 19 marlas situated in the area of village Rasulpur Kalan, Tehsil and District Amritsar. Consequential relief of permanent injunction restraining the defendant-respondents from selling, alienating or transferring the suit property, in any manner, to any other person was also claimed. In the alternative recovery of Rs.5 lacs along with interest at the rate of 24 pert cent per annum was claimed. The suit of the plaintiff was partly decreed with proportionate costs against defendants No.1 and 2 and dismissed against defendants No.3 to 5. Decree passed reads as under:- “ For the reasons recorded above, suit of the plaintiff is partly decreed with proportionate costs against the defendants No.1 and 2 and suit is dismissed against defendants No.3, 4 and 5. defendant No.1 & 2 are execute the sale deed of their share in the suit property in favour of plaintiff after plaintiff furnishes a written undertaking within a period of 15 days from the date of judgment that he relinquishes all his claims of compensation and damage regarding the portion left unperformed; and pays the balance sale consideration to defendants No.1 and 2 within a period of one month from the date of decree, then defendants No.1 & 2 are required to execute the sale deed within a period of one month thereafter otherwise the earnest money of the C.R. No. 2260 of 2009 3 plaintiff will stand forfeited and his suit will be deemed to have been dismissed. Decree sheet be prepared accordingly. File be consigned to the record room.” In appeal, judgment and decree was set aside and the case was remanded to the learned trial court to decide afresh. Plaintiff/petitioner thereafter moved an application for amendment of the plaint to relinquish their claim qua the share of sisters of the defendants and as they were not party to the agreement of sale. By way of amendment application, plaintiff sought following amendment:- “ By way of proposed amendment the plaintiff wants to delete the words “Suit for possession by way of specific performance of the agreement to sell dated 14.3.1995” and wants to insert “Suit for Joint Possession by way of Specific Performance of 2/5th share of defendant No.1 and 2 of the agreement to sell dated 14.3.1995”. In the last 3rd line of para No.1 of the plaint after the word “on 20.10.1995” the plaintiff wants to insert the following lines:- “Since the defendant No.3 to 5 have refused to execute sale deed qua their share the plaintiff restricts his claim qua the share of defendants No.1 and 2 and relinquished the share of defendants No.3 to 5 and prays for the execution of the sale deed of 2/5th share of defendant No.1 and 2 in the property out of said khasra numbers”. Similarly in para No.14 of prayer clause necessary amendment C.R. No. 2260 of 2009 4 regarding joint possession by way of specific performance of 2/5th share of defendants No.1 and 2 of the agreement to sell dated 14.3.1995 has been sought to be made.” The case set up was that the amendment sought was necessary for proper adjudication of the controversy and to avoid multiplicity of litigation. The application was contested primarily on the ground that the plaintiff/petitioner by way of amendment could not be allowed to fill up lacuna in the case, and further that by his own act and conduct the petitioner/plaintiff was estopped from moving the present application. Learned trial court was pleased to hold that as the plaintiff/petitioner had taken a specific stand that he was not ready to purchase the share of Kartar Singh and Gulzar Singh only, therefore, he could not be permitted to change his stand now. In support of this finding reliance was placed on the judgment of Hon'ble Supreme Court in the case of Surjit Kaur Vs. Naurata Singh 2000 (4) RCR (Civil) 513, wherein Hon'ble Supreme Court has been pleased to lay down as under:- “It is to be seen that the suit was for specific performance or in the alternative for a sum of Rs. 40000/-as compensation. The sum of Rs. 40000/- was claimed as the suit Agreement inter-alia provided as follows: Due to any reason, if I dont get sale deed executed then purchaser can get it done through court of law or he can claim double the advance amount paid to me. No reasons have been given by the trial Court as to why this C.R. No. 2260 of 2009 5 term of the suit Agreement should not be given effect to. No reasons have been given as to why compensation of only Rs.8800/- was awarded when what was to be returned, if Appellant could not get Sale Deed executed, was double the amount. Trial Court has held that the 1st Respondent was ready and willing to perform the whole of the Agreement. Trial Court has noted that the Appellant could not perform the Agreement in its entirety in as much as she could not deliver possession. As 1st Respondent had elected not to accept performance in part the trial Court held that the Agreement could not be specifically enforced. However in such an event trial Court should have directed payment of Rs. 40000/- as provided in the Agreement. We accordingly vary the decree granted by the trial Court to the extant that the Appellant shall repay Rs. 20000/- with interest thereon at 12% p.a. from 30th June 1981 till payment and also pay another sum of Rs. 20000/- with interest thereon at 12% p.a. from date of decree till payment.” The impugned order passed by the learned trial court cannot be sustained. Hon'ble Supreme Court in the case of Surjit Kaur Vs. Naurata Singh (supra) was not dealing with a plea of amendment of plaint to relinquish the claim. Learned trial court also failed to notice that in spite of stand taken by the plaintiff/petitioner in their evidence the suit against defendants No.1 and 2 was in fact decreed. C.R. No. 2260 of 2009 6 Hon'ble Supreme Court in case Surinder Singh Vs. Kapoor Singh (Dead) Th.L.rs & Ors. 2005 (3) RCR (Civil) 268 has been pleased to lay down that amendment of plaint can be filed at any stage of proceedings and that the discretion has to be exercised reasonably having regard to the facts and circumstances of each case. Hon'ble Kerala High Court in the case of Smt.T.K.Santha and ors. Vs. Smt. A.G.Rathnam and Ors. AIR 1990 Kerala 69, has been pleased to lay down as under:- “12. The further question to be considered is whether the 7th defendant (plaintiff in the specific performance suit) has satisfied the condition in S.12(3)(ii). Counsel for the appellant contended that under the above subsection if a plaintiff wants performance of a part of a contract, he must relinquish all his claims to the performance of the remaining part of the contract and all rights to compensation either for the deficiency or for the loss or damage sustained by him through the default of the defendant. According to the 3rd defendant, there is no allegation in the plaint that she is prepared to do so and even in the courts below she had not relinquished her claims as contemplated under the above sub-section. It was further pointed out that even in this Court the plaintiff has filed a Cross Objection claiming specific performance of the whole contract and that in these circumstances, the plaintiff is not entitled to a decree as contemplated under S.12 (3) of a part of the contract. Counsel for the respondent (plaintiff in the specific performance suit) C.R. No. 2260 of 2009 7 submitted that she is prepared to relinquish all her claims to the performance of the remaining part of the contract and all right to compensation either for the4 deficiency or for the loss or damage sustained by her through the default of the defendant in case this Court finds that the contract can be performed only in part.; The question to be considered is at what stage is the relinquishment to be made by the plaintiff. In Kalyanpur Lime Works Vs. State of Bihar Air 1954 SC 165 their Lordships of the Supreme Court held that the relinquishment of claim to further performance of the remaining part of the contract and of rights to compensation can be made at any stage of the litigation including the appellate stage. See also Parthasarathi Vs. Venkata Kondiah, AI'R 1965 Mad 1188. The claim of the plaintiff for grant of benefit under S.12(3) cannot therefore be rejected on the simple ground that it was not made at the trial stage but has been made for the first time at the appellate stage. In my view, the claim also cannot be rejected inn the aground that it was not incorporated in the plaint or was not set forth in writing before the trial court. In many cases, it may be doubtful and may require an inquiry and trial to come to a conclusion as to whether a person will be entitled to perform a contract only in part or not and to refuse relief to a plaintiff on the sole ground that relinquishment was not made at an earlier stage will highly prejudice his right. In these circumstances, I feel that the plaintiff is entitled to performance of the contract in C.R. No. 2260 of 2009 8 respect of the 3rd defendant's share in the property under S.12 (3) of the Act.” In view of the law laid down by Hon'ble Kerala High Court there was no justification for the learned trial court to have dismissed the application for amendment by placing reliance on the judgment which had no relevance to the facts of the case and was not on the point of amendment of the pleadings. This revision is accordingly allowed. The impugned order is set aside, the application moved by the plaintiff/petitioner for the amendment of the plaint under Order 6 Rule 17 of the Code of Civil Procedure is allowed, and with no order as to costs.. (Vinod K.Sharma) 2.09.2009 Judge rp