Avneesh Garg v. Gopa Gupta & Anr.

1. Challenge by means of this petition under Article 227 of the Constitution of India is to the impugned order of the trial court dated 07.5.2010 which has dismissed the amendment application filed by the petitioner/plaintiff for amendment of the plaint.

2. Ordinarily, the courts would not refuse amendments, however, the court below has found, and to which aspect I would also agree, that the effect of seeking the amendments as prayed for will result in the plaintiff completely changing the nature of the suit as also the reliefs which are claimed. In addition to the observations of the trial court, I find that the 2014:DHC:3821 petitioner/plaintiff is trying to be clever by half by using confusion of words that amendments pertain to facts already stated, when in fact the total nature of the suit was sought to be changed through the amendments in the plaint and which amendments have been rightly declined. I would like to observe that if amendments are with respect to facts and reliefs already pleaded as is sought to be argued by the petitioner/plaintiff then why seek amendments at all.

3. A reading of the plaint which exists before the filing of the amendment application shows that the plaintiff, who was the owner of the suit property bearing no.H-1594, C.R.Park, New Delhi essentially pleaded that the defendants/respondents had failed to pay the sale consideration of Rs.4,96,000/-, qua the sale deed dated 29.11.2004 which had been executed by the petitioner/plaintiff in favour of the respondents/defendants, and therefore either the sale consideration should be paid or the sale deed should be cancelled. The specific case pleaded is that the defendants/respondents had failed to pay the sale consideration and because of this reason the cancellation of the sale deed was sought and not for any other reason. Also, the existing plaint shows that since only part of the property was sold, the defendants/respondents had to make an independent entrance to that portion of the property which was sold to them. In view of the cause of action averred in the existing plaint, the following relief clauses were prayed:- (a) Pass a Decree for recovery of Rs. 4,96,000/- being the sale consideration as mentioned in the Sale Deed dated 29.11.2004 alongwith interest @ 18% per annum from the date of filing of the suit till its realization, in favour of the plaintiff and against the defendants or in the alternative, this Hon’ble Court be pleased to cancel the Sale Deed dated 29.11.2004 and consequently, the possession of the suit property be restored back to the plaintiff. (b)Pass a Decree for recovery of Rs. 48,000/- in favour of the plaintiff and against the defendants being the arrears of electricity charges.

(c) Award interest @ 18% per annum on the aforesaid amount from the date of filing of the suit till its realization. (d)Pass as Decree for permanent injunction, thereby restraining the defendants, their agents, servants etc. from parking their vehicle on the drive way as shown in ‘Green colour in the Site plan. (e) Press a Decree for Permanent Injunction thereby restraining the defendants from preventing the plaintiff form parking her vehicle on the said drive way as shown in ‘Green’ colour in the Site plan and the defendants be restrained from using the said drive way in any manner whatsoever. The defendants be also further restrained from preventing the plaintiff from using the said drive way as shown in the “Green” Colour in the Site Plan. (f) Pass a Decree for Mandatory Injunction thereby directing the defendants (after making payment of the sale consideration) to the plaintiff to open a separate entrance form the Southern Side the suit property as shown at Point ‘A’ in the Site Plan and be directed to use the said “entrance” for ingress and egress of the defendants. (g)Cost of the present proceedings be also awarded in favour of the plaintiff and against the defendants. (h)Any other or further reliefs which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case be also passed in favour of the plaintiff and against the defendants to meet the ends of justice. It is prayed accordingly.”

4. A reading of the averments made in the existing plaint along with the relief clauses shows that essentially the petitioner/plaintiff admits to the execution of the sale deed, but seeks cancellation of the sale deed only on account of non-payment of sale consideration. The relief of cancellation is alternative to the relief of payment of sale consideration and other monies along with interest i.e only and if the sale consideration is not paid, cancellation of the sale deed should take place. Such a cause of action cannot be converted into a totally different cause of action for complete cancellation of the sale deed that the sale deed was never to be executed, although, in law the respondents/defendants can be directed as per Section 55(4)(b) of the Transfer of Property Act,1882 to pay the sale consideration in case the plaintiff/petitioner proves that the sale consideration was not paid. Also, once the sale deed would be found to be valid in law, then the only relief which the plaintiff/petitioner would be entitled to besides the payment of sale consideration or balance sale consideration is to a mandatory injunction for creation of an independent entrance by the respondents/defendants. In my opinion therefore, the amendments sought in the plaint to totally change the nature of the suit is hence not permissible. By the proposed amendments the plaintiff/petitioner seeks to convert the suit which is effectively first for payment of sale consideration and only in the alternative for cancellation of the sale deed for non-payment of sale consideration, to one in which the cause of action and the relief is totally changed to complete cancellation of the sale deed. I may note that it is a settled law that sale deed is not invalid for alleged lack of payment of consideration or balance consideration and the only entitlement of a seller in terms of Section 55(4)(b) of the Transfer of Property Act, 1882 is to claim unpaid part of sale consideration and for which purpose the seller has a charge upon the property sold.

5. Counsel for the petitioner has argued that the merits of the matter cannot be gone into at the time of deciding the amendment application, however, I note that this argument is in no way connected to the issue of allowing the amendments in the present case and the amendments have not been disallowed because on merits the new case which is sought to be pleaded has been found to be false, but because the new case which is sought to be pleaded has been found to be completely altering nature of the suit i.e effectively withdrawing the existing admissions made qua execution of the sale deed.

6. In view of the above, I do not find any error in the impugned order disallowing the amendment application, and the petition is therefore dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J AUGUST 11, 2014 KA