Shri Lakhi
Ram Vs. Shri Trikha Ram & Ors [1998] INSC 70 (5 February 1998)
S.B.
Majmudar, M. Jagannadha Rao Majmudar, J.
ACT:
HEAD NOTE:
The
appellant is the original plaintiff who had filled a suit for specific
performance of contract for sale of suit lands. The suit was filed against the
original vendor i.e. respondent no. 2 and also against the subsequent
purchasers, respondent nos. 1 & 3 herein. We will refer to the appellant as
the plaintiff and the respondents as defendants for the sake of convenience in
the latter part of this judgment. The plaintiff has felt aggrieved by the
decision of the High Court passed in miscellaneous appeal whereby the High
Court has set aside the order of amendment of plaint as granted by the first
appellate court and dismissed the plaintiff's suit.
A few
relevant facts leading to these proceedings deserve to be noted at the outset.
Plaintiff's case is that defendant no. 1 was Bhumidar of 2/3 share in 9 plots
situated in village Chindori Khas, Meerut District of Uttar Pradesh. According
to the plaintiff, defendant no. 1 agreed to sell his entire share on 30.6.1069
to the plaintiff for a consideration of Rs. 12,000/- (Rupees twelve thousand
only). Rs. 2,000/- (Rupees two thousand only) was taken by him as earnest money
from the plaintiff when he executed the said agreement on the same day in
plaintiff's favour.
According
to the plaintiff, despite this agreement defendant no. 1 did not execute the
sale deed and instead sold the property to defendant nos. 2 & 3. He
thereafter filed the aforesaid suit for specific performance. Defence was
submitted b y the subsequent purchasers namely, defendant nos. 2 & 3. After
hearing the contesting parties the trial court took the view that it was proved
that defendant no. 1 had agreed to sell the disputed property to the plaintiff
on 30.6.1969 after accepting Rs. 2,000/- (Rupees two thousand only) as earnest
money. It was also held that defendant nos.2 & 3 were not bonafide
purchasers for value without notice, that the suit was not barred under section
34 of the Specific Relief Act. In the Result, the suit was decreed by the trial
court by order dated 18.4.1972. Defendant nos. 2 & 3 carried the matter in
appeal. In appeal it was contended amongst other that th e suit was barred by
Section 16(c) of the Specific Relief Act, 1963 as the plaintiff did not aver in
the plaint that he was ready and willing to perform his part of the contract.
When such a contention was raised amongst others at the stage of argument, the
plaintiff moved an application for amending the plaint under order 6 Rule 17 of
the Code of Civil Procedure seeking introduction of the averment regarding his
readiness and willingness to perform his part of contract. That amendment was
granted by the appellate court and as a result, the decree of the trial court
was set aside and the proceedings were ordered to be remanded to the trial
court for framing appropriate issues in the light of the amended plaint subject
to the plaintiff praying costs as indicated in the judgment of the appellate
court while granting amendment. The appeal was allowed, the Judgment and decree
of the trial court were set, aside, application for amendment of the plaint was
allowed on payment 15.7.1973 was brought in challenge by defendant nos.2 and 3
before the High Court in miscellaneous appeal as the appeal was directed
against the remand order. The High Court took the view that such proposed
amendment could not have been granted as it would displace the defence of the defandants
and consequently, the order of the order of the appellate court allowing the
amendment was ser aside.
Learned
Single Judge decided the appeal followed an earlier decision of the division
Bench of the High Court and held that once such proposed amendment was refused,
the suit would not survive and, therefore, the appeal was allowed, the order of
the lower appellate court was set aside and the plaintiff's suit was dismissed.
It is thus order of the High Court which is the subject matter of this appeal
after special leave was granted.
Learned
counsel for the appellant raised tow contentions in support of the case. He
firstly submitted that the proposed amendment was rightly allowed by the lower
appellate court, that in a suit for specific performance of contract, the
causer of action centered round inaction on the part of the vendor in complying
with the agreement to sell the property, that if averment under Section
16(c)-of the Specific Relief Act was not originally inserted due to oversight
or otherwise by the plaintiff, he can always be permitted to amend the plaint.
In support of his contention, he relied on the decision of this Court in the
case of Gajanan Jaikishan Joshi vs. Prabhakar Mohanlal Kalwar reported in 1990
(1) SCC 166. A Bench of two learned Judges of this Court speaking through Kania,
J. (as he then was) made the following observations in the case :
"In
the present case no fresh cause of action was sought to be introduced by the
amendment applied for. All that the plaintiff appellant sought to do was to
complete the cause of action for specific performance of which relief he had
already prayed. It was only one averment required under Section 16(c) of the
Specific Relief Act to be made in a plaint in a suit for specific performance
which was not made, probably on account of some oversight or mistake of the
lawyer who drafted the plaint and that error was sought to be rectified by the
amendment applied for. There was no fresh causer of action sought to be
introduced by the amendment and hence, no question of causing any injustices to
the respondent on that account arose." Placing strong reliance on the
aforesaid decision it was submitted that the reasoning given by the High Court
in the impugned judgment cannot be sustained in view of the aforesaid
authoritative pronouncement of this Court.
It was
next contended that in any case such a grievance about grant of amendment could
not have been made by defendant nos.2 and 3 who are subsequent purchasers and
such grievance, if at all, could have been made by the original vendor who was
party tot he agreement, namely, defendant no.1 and he was set exparte all
throughout in those proceedings and did not think it fit to raise such
contention. Even that apart, defendant nos. 2 and 3 also in their written
statement did not raise such a submission and no issue was framed by the trial
court. In this connection, reliance was placed on a latter decision of two
learned Judge of this Court in the case of Jugraj Singh & Anr. vs. Labh
Singh & Ors. reported in 1995 (2) SCC 31 In that case, a Bench of this Court
consisting of K. Ramaswamy & N. Venkatachala, JJ. observed that the plea
about Section 16(c) of the Specific Relief Act, provides that the plaintiff
must plead and prove that he was always ready and willing to perform his part
of the essential terms of the contract. The plea is specifically available to
the vendor as it is personal to him. The subsequent purchasers have got only
the light to defend their purchase on the premise that they have no prior
knowledge of the agreement of sale with the plaintiff. They are bonafide
purchasers for valuable consideration. Though they are necessary parties to the
suit since any decree obtained by the plaintiff would be binding on the
subsequent purchasers, the plea the the plaintiff must always be ready and
willing to perform his part of the contract must be available only to the
vendor or his legal representatives but not to the subsequent purchasers. Even
on that basis it was submitted that defendant nos.2 & 3 could not have such
grievance before the High Court.
Learned
counsel for respondents 1 and 3 i.e defendant nos. 2 & 3 on the other hand
submitted that even though the power to grant amendment is to liberally
exercise if the suit itself is fatally defective on account of absence of
averments as per Section 16(c) of the Specific Relief Act, it would be a still
born suit and therefore the amendment of the suit by introducing averments
under Section 16(c) of the Specific Relief Act cannot be granted in such a
totally defective suit. So far as the second submission of learned counsel for
the appellant is conerned, it was submitted by learned counsel for the
respondents that the reasoning given in the decision of the Court in Jugraj
Singh's case (supra) in his view required a re-look. According to him the
subsequent purchasers might have parted with full consideration in favour of
the vendor and who would be in possession of the properties and whose
contention could be that they were bonefide purchasers for value without notice
and that the suit which was fatally defective and still born one should be
dismissed and such a still born suit should not be permitted to be decreed. The
decree in such suit would really be against them. They will be required to
recovery the property to the palintiff and even in given cases to handover
possession thereof to the palintiff.
Hence,
they cannot be said to the ineligible to defence the suit on all legally
permissible grounds. The original vendor might not be interested in fighting
further. Consequently no such defence could ever be said to be not permissible
to such subsequent purchasers. He also submitted that the subsequent purchasers
step into the shoes of the vendor and whatever pleas are legally available to
the vendor for meeting the case of the plaintiff would naturally be available
to the subsequent purchasers as defence.
Having
considered these rival contentions in our view, the appeal could be disposed of
on the first point canvassed by learned counsel for the appellant. Namely, that
amendment inserting the relevant averments under Section 16(c) of the specific
Relief Act does not change the cause of action and would be legally permissible
exercise as laid down by this Court in 1990 (1) SCC 166. The ratio of the
aforesaid decision squarely applies to the facts of the present case and,
therefore, the decision rendered by the first appellate court allowing such
amendment could not have been found fault with by the High Court in the
impugned judgment. Only on this short ground the appeal will have to be
allowed.
In
view of our above conclusion, we do not deem it fit to examine the alternative
contention of the learned counsel for the appellant about the locus standi of
the subsequent purchasers to raise such contention about the proposed amendment
though prima facie we find that there is some substance in what learned counsel
for the respondents submitted in connection with the reasoning which appealed
to the Bench of this Court which decided Jugraj Singh's case (supra).
Consequently, in the present case we do not deem it fit to consider whether the
said decision requires reconsideration by a larger Bench.
The
appeal is allowed and the judgment and decree of the High Court are set aside
and the order of the first appellate court remanding the proceeding to the
trial court is restored. As the suit is of 1969, we direct the trial court to
expeditiously dispose of the suit so that the parties may know where they
stand. No costs.
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