Tej Kaur and Others vs Balwinder Singh and Others

Paramjeet Singh, J.—Instant revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 01.08.2012 (Annexure P/1) passed by learned Additional District Judge, Sri Muktsar Sahib, whereby application moved the respondents-plaintiffs under Order 6 Rule 17 read with Section 151 of the CPC for amendment of plaint has been allowed. Brief facts relevant for disposal of this revision petition are that respondents/plaintiffs filed a suit for specific performance against the petitioners/defendants Tej Kaur, and Harmander Singh (husband of defendant No. 2-Lakhvir Kaur and father of defendant Nos. 3 to 5-Yadawinder Singh, Gurwinder Singh and Simarjit Kaur) alleging that the petitioners/defendants entered into an agreement to sell dated 12.05.2005 with the respondents/plaintiffs. To the said agreement allegedly Simarjit Kaur was not party. However, the same was done at her instance by her father. Vide judgment and decree dated 18.4.2011 the trial Court decreed the suit only for alternative relief of refund of earnest money with interest. In appeal preferred by the respondents/plaintiffs, an application under Order 6 Rule 17 read with Section 151 CPC was moved to amend the plaint. The respondents-plaintiffs only sought to add para No. 6-A and also make amendment in the prayer clause in the plaint which read as under:

6-A. That if the Hon''ble Court, comes to the conclusion, that Simarjit Kaur had not signed the agreement, in dispute, then plaintiffs are ready to relinquish the relief, regarding the share of Simarjit Kaur, for all claims, and compensation, and plaintiffs are ready to pay full amount and does not claim, any damages for the unperformed part. Plaintiffs want to perform the part performance of the remaining share of the other defendants, except the share of Simarjit Kaur.

In the prayer clause of the plaint, after the word ''sale deed'' and before the word ''and'', it is to be added:-

If the Hon''ble Court comes to the conclusion, that no decree was passed for specific performance of the whole property, mentioned in the agreement to sell, then, decree for specific performance be passed of the suit land except the share of Simarjit Kaur.

Vide impugned order dated 01.08.2012, learned lower appellate Court has allowed the application. Hence, this revision petition.

I have heard learned counsel for the parties and perused the record.

Learned counsel for the petitioners vehemently contended that at appellate stage, no amendment can be allowed. It should have been allowed at the initial stage during the pendency of the suit itself. No sufficient reasons have been given. Learned counsel further contends that the respondents have failed to show any subsequent event which may necessitate amendment and relies upon a judgment of Hon''ble Supreme Court in Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, and judgment of Hon''ble Karnataka High Court in Ramachandraiah Vs. Nagappa Naidu, .

On the other hand, learned counsel for the respondents vehemently contended that amendment sought for is only for relinquishing the claim qua the share of Simarjit Kaur-defendant No. 5 in the suit. The amendment is only sought by way of addition of para. No. 6-A clarifying the situation with regard to the execution of agreement to sell and consequent amendment in the prayer clause. Learned counsel relies upon judgments of Hon''ble Supreme Court in Surender Kumar Sharma Vs. Makhan Singh, , Surinder Singh Vs. Kapoor Singh (Dead) th. Lrs. and Others, , State of Maharashtra Vs. Hindustan Construction Company Ltd., , Abdul Rehman and Another Vs. Mohd. Ruldu and Others, and a judgment of Hon''ble Allahabad High Court in Dr. P.K. Pandey Vs. Atul Tiwari .

I have considered the contentions raised by learned counsel for the parties and citations at bar.

Relinquishment of a share can be sought even at the appellate stage. This is not in dispute. Furthermore, with the amendment there will be no change in the nature of relief claimed nor the nature of suit will be changed. Only relief against defendant No. 5 has been relinquished which in any manner does not affect the other defendants. In the larger interest of justice and to do full and complete justice between the parties, amendment can be allowed at any stage, particularly when there is no material change in the nature of suit. The judgments cited by the learned counsel for the petitioner are not applicable to the facts of the case, rather the present case is squarely covered by the judgments passed by Hon''ble Supreme Court in the cases of Surinder Singh (supra) and Abdul Rehman (supra). In view of above, I do not find any illegality or perversity in the impugned order.

Dismissed