Present writ petition has been filed questioning the validity of order dated 01.02.1993 passed by Vth Additional District Judge, Agra, allowing amendment application moved by the defendant-appellant for introducing amendments in the written statement.
Brief background of the case, as disclosed in the writ petition, is that the plaintiff filed suit No 138 of 1982 against Devi Singh for specific performance of agreement of sale dated 27.11.1979 on the ground that he had entered into agreement of sale with the petitioner of his 1/4th share of bhumidhari plot No.113 situated in village Nainana Jat, Tehsil and District Agra for a sale consideration of Rs.16,500/-; a sum of Rs.14,000/- was paid by the petitioner as earnest money; Rs.2000/ was paid at the time of registration of agreement and Rs.500/- was to be paid at the time of sale deed, and the petitioner was ready and willing to perform his part of agreement, but on refusal by respondent No.2, suit was filed. In the said suit written statement was filed, and therein the agreement of sale was disputed by him and payment of amount was also disputed and it was further mentioned that the alleged agreement was in respect of sale of a house and not the plot in question and the same was got registered on 27.11.1979 under the pretext of cancellation of earlier agreement dated 14.07.1977. Before trial court, issues were framed, evidence was led and the suit was decreed on 17.07.1989. Aggrieved against the said judgment and decree, respondent No. 2 preferred appeal, which is pending, and during pendency of the said appeal application seeking amendments in the written statement had been filed. Objections to the same were also filed. Said amendment application has been allowed by the order impugned, against which present writ petition has been filed.
The pleadings inter se parties have been exchanged. The writ petition has been taken up for final hearing and disposal.
Learned counsel for the petitioner contended with vehemence that the appellate court below has acted with material irregularity by allowing the amendment application at the appellate stage by mentioning that the plea which has been sought to be raised is not inconsistent plea and the other party is not affected, whereas amendment in question raised totally inconsistent plea and has the effect of setting up of a totally new case and had the effect of filling up the lacuna, as such writ petition deserves to be allowed.
This is an old case of of 1993 and in the cause list, it has been shown under the heading "old cases", and even on its being taken up in the revised call, Sri Santosh Kumar, learned counsel for the contesting respondent, has not appeared. Since the matter is old one, same has been taken up for disposal on the basis of arguments made by the learned counsel for the petitioner and the record available before the Court.
From the records, specially copy of the written statement which has been filed as Annexure-1 to the writ petition, wherein it is clearly mentioned that the defendant had not entered into any such agreement of sale with respect to plot in dispute, and in this background, there was no question of any readiness and willingness to get the sale deed executed. Receipt of any amount as alleged by the plaintiff has also been denied. It was stated that the correct facts were that the defendant had entered into agreement for sale of house to the plaintiff for a sum of Rs.4000/-, and in this connection he had received a sum of Rs.3100/- as earnest money and he had also registered an agreement of sale in favour of the petitioner on 14.07.1977. As per terms of the agreement, sale deed was to be executed within three years from the date of agreement, but subsequently, this agreement was revoked on 27.11.1979, and the details have been given that he had signed papers in this direction. It was also mentioned in paragraph 18 of the written statement that the plaintiff had no capacity to pay Rs.16,000/- at a time and further factum of capacity has also been disputed.
Suit in question had been decreed, and thereafter application for amendment had been moved at the appellate stage by contending that some facts could not be mentioned in the written statement, as the same were not known at the time of filing written statement. By way of amendment, paragraphs 17A to 17-H have been desired to be added in the written statement. As per appellate court, from the record it was clear that by means of 3 proposed amendment the defendant wanted to take some new facts, but they were, in no way, inconsistent to the pleas already taken. In the present case plea which has been sought to be introduced is contrary to the pleas already taken, as plea sought to be introduced is that plaintiff is money lender and in the habit of executing documents, whereas on earlier occasion specific plea had been taken that the plaintiff had no capacity to pay Rs.16,000/- at a time. In the garb of amendment new facts have been sought to be introduced at the appellate stage. The appellate court has erred in law in allowing the amendment application.
Consequently, present writ petition succeeds; and the same is allowed. The order dated 01.02.1993 passed by the appellate court is set aside. The appellate court is directed to decide the appeal itself on its own merits, in accordance with law, preferably within a period of three months from the date of receipt of a certified copy of this judgment.
25.01.2010 SRY