Further there is a clear contradiction in the original case set up by the Plaintiffs and the proposed case now being sought to be set up. If the original case of the Plaintiffs were to be accepted, then the Plaintiffs are already owners of the suit property by virtue of the execution of the two documents. If the Plaintiffs are already owners of the suit property by virtue of the two documents then there is no question of the Defendant being asked to once again to convey the property to the Plaintiffs by specifically performing the oral agreement to sell. If the Plaintiffs are owners, then the Defendant is divested of any right to sell or convey ownership rights. If the Defendant is already divested of ownership right and cannot convey any further rights to the Plaintiffs then there can be no specific performance. The prayer for specific performance is not being sought as an alternative to the prayer for declaration but as in substitution thereof There is thus a contradiction in the case originally set up and the case that is proposed to be set up by the Plaintiffs.
IN THE HIGH COURT OF DELHI
Decided On: 01.05.2014
Appellants: Vaishali Gaur & Another
Vs.
Respondent: Sanjay Sharma & Another
Vs.
Respondent: Sanjay Sharma & Another
Hon'ble Judges/Coram:Sanjeev Sachdeva , J.
1. Plaintiff by the present application under Order 6 Rule 17 CPC has sought amendment of the plaint.
2. Plaintiffs have filed the present suit seeking a declaration that the Plaintiffs be declared as the rightful owner of the suit property and for a declaration that the sale deed dated 27.12.2012 executed by Defendant No. 1 in favour of Defendant No. 2 in respect of the suit property be declared as null and void with consequential relief of possession.
3. The Plaintiff No. 1 is the sister of the wife of the Defendant No. 1. The Defendant No. 1 who had purchased the property bearing municipal number 27/33 measuring 200 sq. yards out of khasra No. 3623/3096/2324/637/1 at village Chandawali, Shahdara by sale deed dated 19.07.2006 was stated to be interested in selling the same in the year 2007.
4. The Plaintiffs claimed to be looking for a property to construct a place for orphans, old aged persons, handicapped and other under privileged persons and the Plaintiff intended to purchase the suit property.
5. As per the Plaintiffs, the Defendant No. 1 stated that on account of certain disputes, a registered document could not be executed till the time the dispute were not cleared by the Court. However, the Defendant No. 1 agreed to sell the property for a sale consideration of Rs. 32,50,000/-. The Plaintiff No. 1 claims to have paid a sum of Rs. 15,60,000/- in cash and Rs. 16,90,000/- by way of gold and diamond jewellery. Thus, the Plaintiffs claim to have paid the entire sale consideration to the Defendant either in cash or in gold. The Defendant is stated to have executed a deed of authorisation and an affidavit in favour of the Plaintiff and handed over the original sale deed of the property. As per the Plaintiff, Defendant No. 1 on receipt of the entire sale consideration authorised the Plaintiff to act on behalf of Defendant No. 1 in respect of the suit property.
6. The Plaintiffs thereafter noticed some construction activity on the suit property and on inquiry, Plaintiff came to know that Defendant No. 1 had sold the suit property by sale deed dated 27.12.2012 to Defendant No. 2 and handed over the actual vacant physical possession of the suit property to him. The Plaintiffs, thereafter, filed the present suit on 02.09.2013 seeking a declaration that the Plaintiffs be declared as the owner of the suit property and further that the sale deed dated 27.12.2012 executed by Defendant No. 1 in favour of Defendant No. 2 be declared as null and void and the consequential reliefs of permanent and mandatory injunctions.
7. The Plaintiffs by the present amendment have sought to amend the plaint and give up the relief of declaration that the Plaintiffs be declared as the owner of the suit property and further sought to incorporate the relief of specific performance. Certain paragraphs are sought to be further added to contend that the Plaintiffs were ready and willing to purchase the suit property as per the agreement.
8. Learned counsel for the Plaintiffs submitted that the averments and facts necessary to establish the relief of specific performance have already been pleaded, however, the relief of specific performance has not been specifically claimed. He further submitted that the cause of action for the Plaintiffs to file the present suit would accrue only on refusal by Defendant No. 1 to perform the agreement and the Defendant No. 1 refused only in the year 2013 and as such the suit would still be within limitation. He further submitted that the Defendant No. 1 could not execute the sale deed till the dispute between the Defendants get over. He further submitted that the Defendant No. 1 had executed authorisation/GPA and an affidavit in favour of the Plaintiff and handed over to the Plaintiffs the original title deeds of the property and as such the relief of specific performance was still within limitation. He contended that only a specific prayer with regard to specific performance was sought to be added and the character and nature of the suit would not be altered.
9. The Defendants have opposed the application for amendment on the ground that the relief of specific performance was available to the Plaintiffs at the time when the original plaint was filed and no explanation is forthcoming as to why the said relief was not specifically claimed when the plaint was filed. Learned Counsel for the Defendants contended that as the plea of specific performance of the oral agreement to sell was available at the time of institution of the original plaint and the Plaintiffs omitted to claim the entire relief so the Plaintiffs are barred under Order 2 rule 2 CPC to claim the said relief by way of an amendment.
10. The Defendants have further contended that the relief by way of amendment is barred by limitation and the Plaintiff cannot be permitted to amend the plaint to incorporate a relief that is barred by limitation. Further that the very nature and character of the suit is sought to be changed and a suit for declaration is sought to be converted into a suit for specific performance which is not permissible under law. The Defendants have, thus, contended that the application is not maintainable and is liable to be dismissed.
11. The Supreme Court of India in Revajeetu Builders & Developers v. Narayanaswamy & Sons, MANU/SC/1724/2009 : (2009) 10 SCC 84 after critically analysing both the English and Indian cases enumerated some basic principles which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;(2) whether the application for amendment is bona fide or mala fide;(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
12. While considering an application for amendment, the court is not to examine the merits of the amendment or to consider the strength or weakness of the case of the applicant. However the court can examine the proposed amendment to ascertain whether the nature and character of the suit is sought to be changed by the proposed amendment.
13. The original case set up by the Plaintiffs is that by execution of an affidavit and a general power of attorney, the Defendant has transferred the property in suit to the Plaintiffs. The Plaintiffs have contended that the entire sale consideration has been paid by the Plaintiffs in cash and by transfer of gold and diamond jewellery. The Plaintiffs have sought a declaration that by the execution of the said Power of attorney and affidavit, both dated 26.08.2008, the Plaintiffs have become owner of the property. Since the Plaintiffs are stated to be the owner on the basis of the said documents, the sale deed executed by the Defendant No. 1 in favour of Defendant No. 2 is sought to be declared null and void.
14. The execution of the two documents is not in dispute. For the consideration of grant or otherwise of the said relief claimed in the suit, only the effect of the two documents is to be examined.
15. The Plaintiffs by the proposed amendment are seeking to substitute the relief of declaration that they be declared an owner by virtue of execution of the power of attorney dated 26.08.2008 and the affidavit dated 26.08.2008 with the relief of specific performance of an oral agreement to sell entered into between the parties in 2007.
16. There is no document filed by the Plaintiffs wherein a reference is there to any agreement to sell. Even for the alleged payments in cash and by jewellery, no receipt has either been pleaded or produced. The General Power of Attorney dated 26.08.2008 amongst others contains a power to sell the suit property but is neither registered nor refers to any sale transaction. The Affidavit only states that there is no loan against property and in case in future the General Power of Attorney is to be transferred or the property is to be sold or any decision relating to the property taken, the consent of the attorney holder shall be taken.
17. For the grant of the relief as originally claimed for declaration that the Plaintiffs be declared as an owner on the basis of the General power of attorney and affidavit dated 26.08.2008, only the effect of the two documents is to be considered but for the proposed relief of specific performance of an oral agreement to sell between the parties of 2007 a full trial would be required. The very nature and character of the suit would be changed from a suit for declaration into a suit for specific performance.
18. Further there is a clear contradiction in the original case set up by the Plaintiffs and the proposed case now being sought to be set up. If the original case of the Plaintiffs were to be accepted, then the Plaintiffs are already owners of the suit property by virtue of the execution of the two documents. If the Plaintiffs are already owners of the suit property by virtue of the two documents then there is no question of the Defendant being asked to once again to convey the property to the Plaintiffs by specifically performing the oral agreement to sell. If the Plaintiffs are owners, then the Defendant is divested of any right to sell or convey ownership rights. If the Defendant is already divested of ownership right and cannot convey any further rights to the Plaintiffs then there can be no specific performance. The prayer for specific performance is not being sought as an alternative to the prayer for declaration but as in substitution thereof There is thus a contradiction in the case originally set up and the case that is proposed to be set up by the Plaintiffs.
19. In my view the proposed amendment cannot be allowed as it changes the very nature and character of the suit and is also in clear contradiction to the case already set up. Since the amendment is being disallowed on the above/grounds, the pleas of the defendants that the amended cannot be allowed in view of the bar under Order 2 rule 2 of the CPC and that the relief of specific performance is barred by limitation is not gone into.
20. The application is thus dismissed with costs of Rs. 20,000/-
21. Nothing stated herein shall amount to an expression of opinion on the merits of the case of the parties as originally pleaded.
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