Raj Paul vs Om Parkash

The petitioner filed civil suit No. 112 of 1978 seeking specific performance of an oral contract of sale of a building situate in Raghunath Bazar,

Jammu. According to the averments made in the Plaint, the parties entered in to an oral agreement on 18th Feb. 1978. Whereby the defendant

respondent agreed to sell the suit property, consisting of one shop on the ground floor, two rooms on the first floor and two rooms on the second

floor including the staircase, the main enterance and the normal passage situate in Raghunath Bazar and fully described in the plaint. The sale price

was fixed at Rs. 85.000/. The defendant was paid Rs. 20,000/ as part consideration on 18278 itself, by means of a cheque and the balance of the

sale amount was agreed to be paid on or before 31st March 1978, at the time of the registration of the sale deed, before the subregistrar. The sale

was in fact agreed to be completed by executing two sale deeds, each of the value of Rs. 42,500/. That the defendant was approached by the

plaintiff for the registration of sale deeds on various occasions before and after 31378. That the plaintiff also purchased the duty stamps on 2nd and

3rd of Sept. 1978, for having the sale deed prepared. That whereas the plaintiff was capable and willing at all times, to perform his part of the

contract, the defendant failed to do so and hence the suit.

The suit was resisted by the defendant, certain preliminary objection were raised in the written statement besides the challenge on merits. One of

the objections raised was that no suit for specific performance, on the basis of an oral agreement, lay because such an oral agreement does not

amount to a contract for sale of immovable property. On merits it was stated that there was no contract for sale entered into between the parties,

though the plaintiff did initiate negotiations for the sale of the suit shop. Under his tenancy, for an amount of Rs. 1,65,000/ but these negotiations

were between the plaintiff and Sh. Suraj Parkash, brother of the defendant. That there were no negotiations for the gale purchase of the building

described in the plaint with the defendant at any state. On the pleadings of the parties, the following preliminary issue was framed on 20479.

Whether the suit deserves to be dismissed because no suit for specific performance of an oral agreement to sell lie O.P.D.

The plaintiff petitioner on 12280 filed the present application under order 6 rule 17 Code Civil Procedure seeking permission to amend the

plaint A copy of the amended plaint was also filed alongwith the application. The amendment, which the petitioner now seeks incorporate in the

plaint is to the effect that there was in fact a written agreement executed between the parties on 22278 for the sale of the suit shop in which the sale

price was fixed at Rs. 1,65,000/. Though it was on the request of the defendant that an amount of Rs. 85000/ only was to be cited as the

consideration for sale. That the agreement, executed on 22278 had been misplaced by the plaintiff and on the advice of his counsel he filed the suit

for specific performance of the contract basing has claim on an oral contract and that since the said written agreement and now been found, the

plaintiff wanted to base his suit for the specific performance of contract on the basis of that agreement. An affidavit of Mr. D. K. Khajuria,

advocate, has also been filed in support of the application in which the averments made in the application have been supported.

The application has been resisted by the defendant. In the objection to the application, it is maintained by the defendant that the plaintiff by

means of the amendment wanted to introduce a new cause of action having realised that he would fail in his suit as originally filed. That the

amendment sought for is beyond the scope of order 6 Rule 17 Code of Civil Procedure, 1908. It is also denied that the amount of Rs. 85,000/

was agreed to be shown as the consideration instead of the actual consideration of Rs. 1,65,000/. It is further asserted that the so called agreement

to sell is a concocted document. It is also asserted that even otherwise the so called written agreement pertains to a different transaction and to a

different subject matter. It is urged that the suit of the plaintiff, as originally filed, is based on an oral agreement to sell a building, situate at

Raghunath Bazar, Jammu for Rs. 85000/, whereas by the amen merit the plaintiff seeks to convert that suit into a suit for specific performance of

an express agreement to sell, a shop for a consideration of Rs. 1,65,000/. That the two stories are mainifestly contradictory and the causes of

action are separate and distinct.

Mr. V. S. Malhotra, learned counsel for the petitioner has urged that Rule 17 of Order 6 gives a wide discretion to the courts to allow such

amendments as are determining the real matter in controversy necessary for the purpose of between the parties. The proposed amendment,

according to the learned counsel, only aims at that. It ii further urged that the proposed amendment would not change the cause of action and the

injury which the defendant may possibly suffer can be compensated by award of costs. On the other hand urged the learned counsel, that if the

amendment is not allowed it would result in multiplicity of proceedings. In support of his arguments reliance is placed by the learned counsel

primarily on AIR 1969 SC 1267 and AIR 1967 SC 96.

In the 1969 case (supra) the plaintiffs Manager of Joint family doing business of the joint family under a business name, brought a suit in that

business name and when an objection was taken by the defendent that the firm being unregistered firm, was incompetent, to sue he applied for

amendment of the plaint stating that he himself had intended to file the suit and had in fact filed the action but that inadvertently the suit was filed in

the business name. The application for amendment was allowed on the ground that the description of the plaintiff, in the name of the firm in a case

where law did not permit a suit to be brought in the name of the firm, should be considered as a case of misdiscription and such a misdiscription

can be permitted to be corrected in law amendment

In the 1967 case (supra) it was held that if amendment does not lead to the setting up of an inconsistent case or a new cause of action it would

be allowed to do complete justice between the parties.

Learned counsel for the respondent, has on the other hand, argued that the proposed amendment amounts to the setting up of an absolutely

inconsistent case on a different cause of action. It is urged that in the original plaint, the cause of action was based on an oral agreement dated

18278 whereas in the amendment now sought to be made, a written agreement dated 22 Feb, 1978 is being made the basis of the cause of action.

Again, in the original suit, the value for the purposes of court fee and jurisdiction was fixed at Rs. 85000/ whereas in the amended plaint, the

valuation is sought to be changed to Rs. 1,65,000/. The description of the property in the original plaint and in the proposed amendment plaint

according to the learned counsel, is also different.

I have given my anxious consideration to the arguments raised at the bar. In my opinion for what follows, the prayer of the plaintiff to permit him

to amend the suit is not tenable. The cause of action according to the original plaint accrued on 18278 when an oral contract of sale of the suit

property was entered into between the parties. The cause of action according to the amended plaint, accrued to the plaintiff on 22278 when a

written contract of sale was executed between the parties The value of the suit property in the original plaint was stated as Rs. 85000/ whereas the

value of the property in the amended plaint is stated to be Rs. 1,65,000/. Thus it is apparent that the two plaints set up to separate contracts and

seek their enforcement The proposed amendment sets up a totally new case and is based on a distinct and new cause of action, which is wholly

inconsistent with the original case. Having realised that the suit for specific performance of an oral contract of sale of immovable property could not

succeed in law, the plaintiff has come up seeking amendment to base his claim on a written agreement of sale. However wide may be the discretion

to allow amendments under order 6 rule 17 PC, the description has to be judicially exercised and no amendment can be allowed which would

have the effect of setting up a new cause of action or an inconsistent case than the one originally pleaded. In AIR 1922 PC 249, the facts were

some what similar. The plaintiff, in that case, sued in 1913 for specific performance of a verbal agreement, made in 1912 by defendant with him,

for transfer of certain land of oil wells, in place of an earlier agreement of 1903. When the court found the verbal agreement not proved, the

plaintiff applies to amend the plaint by claiming damages for breach of the contract of 1903. Their lordships of the privy council held that the

amendment could not be allowed under section 153 and order 6 Rule 17 CPC because it was not open to the court to permit a new case to be set

up amendment.

Again in Bhagavathla Gopal Krishna murthi and Ors. Vs. Dhulipallas creedhara Rao and another AIR 1950 Madras 32 it was observed as

follows:

Where certain facts are alleged which facts were available to the plaintiff and which the plaintiff has not chosen to mention in the original plaint it

would not be open to court to permit such an amendment as it would permit a new cause to be made on facts which were available but were not

pleaded"".

Both these judgments apply with full force to the facts of the present case. On the petitioner own showing all the facts which he wants now to

mention by way of the amendment, were available to him at the time he filed the original plaint. Assuming for the sake of arguments, the written

agreement had been misplaced by the plaintiff as alleged by him, one fails to understand why that fact could not be mentioned and why there is

difference between the sale price as originally stated and now sought to be stated does not appeal to me. To say the least, it shows that the plaintiff

did not come to court, with clean hands. Being fully aware of the facts, he plaintiff is obviously trying to put up an altogether new case then the one

originally pleaded. The contract as originally pleaded, and the contract sought to be introduced by the amendment are not only separate and

distinct but also inconsistent. It appears that having realised the legal flaw in the suit the plaintiff is seeking to overcome that flaw but the scope of

order 6 rule 17 CPC does not extend to that extent as has been held by the privy council in AIR 1922 PC 249 (Supra). He has not, therefore,

acted bonafide. Since the proposed amendment would have the effect of putting up a new case, based on a new cause of action, it cannot be

allowed. Both the judgments relied upon by Mr. Malhotra have no application to the facts of the present case. In the 1969 case, it was the

misdiscription of the name of the plaintiff which was the misdiscription of the name of the plaintiff which was allowed to be amended. There was no

amendment sought as to the cause of action. The amendment was allowed because the misdiscription of the plaintiff was treated as a technical

defect. Again, in the 1967 case, the amendment was allowed on the clear finding that the amendment did not lead to the setting up of an

inconsistent case or a new cause of action. In the instant case, an altogether new contract is being get up by way of the amendment. This cannot be

allowed.

In view of the above discussion, the application of the plaintiff seeking amendment is rejected.

The main suit shall now be listed for arguments on the preliminary issue on a date to be fixed by the Deputy Registrar.