M.L. Singhal, J.@mdashVide order dated 15.9.1999, Additional District Judge, Sonepat allowed the defendants to amend their written statement
in civil suit No. 241 of 1998 titled Om Parkash son of Tulsa Ram son of Jodha Ram resident of village Ganaur v. Ram Parkash son of Kanshi Ram
son of Ganpat Ram resident of Village Panchi Gujran, Tehsil Ganuar and Urmil Kumar alias Vimal Kumar, for specific performance of the
agreement to sell.
Facts:-
Om Parkash filed suit for specific performance of the agreement to sell dated 12.1.82 against Ram Parkash and Urmil Kumar alias Vimal Kumar
defendants with respect to land measuring 2 kanal 8 marla situated in village Bal, Tehsil Ganaur for a consideration of Rs. 10,000/- without any
further payment. It was alleged in the plaint that the said land was agreed to be sold by defendant No. 2 Urmil Kumar alias Vimal Kumar to him
for a sum of Rs. 10,000/-. Whole of the amount was received by Urmil Kumar alias Vimal Kumar defendant No. 2 at the time of the execution of
the agreement. At the time of the execution of the agreement, land was standing in the name of the custodian. Some instalments were outstanding
against defendant No. 2 payable to the custodian. It was agreed between the plaintiff and defendant No. 2 Urmil Kumar alias Vimal Kumar that as
soon as he had deposited the entire instalments due and land was mutated in the name of defendant No. 2, he will execute sale deed in his favour
and get it registered. It was agreed that he will execute sale deed in his favour and get it registered within a period of one month of the date when
mutation was sanctioned in his favour. It was also agreed that the proprietary and actual possession would also be delivered to him. On 7.3.86,
mutation No. 810 was sanctioned in his favour qua that land. He, however, failed to execute sale deed in his favour. It was alleged in the plaint that
he came to know that Urmil Kumar alias Vimal Kumar had sold the said land to Ram Parkash defendant No. 1 vide sale deed dated 29.1.88 for a
consideration of Rs. 6,000/-. He (Plaintiff) was not bound by the said sale in favour of Ram Parkash defendant No. 1. He was entitled to
specifically enforce agreement to sell dated 12.1.82 against both the defendants. He was always ready and willing to get the sale deed executed in
his favour on incurring the necessary expense required for the purchase of stamp and the expense of registration. He requested Ram Parkash
defendant No. 1 also to transfer the land in his favour as he was holding agreement to sell dated 12.1.82 but to no effect.
2. Defendants contested the suit of the plaintiff. It was denied that defendant No. 2 executed any agreement to sell dated 12.1.82. It was dented
that he received any amount of Rs. 10,000/-. It was denied that he ever executed any receipt showing the receipt of Rs. 10,000/- by him from the
plaintiff. Receipt is false, forged and factitious. Defendant No. 2 did not receive any payment from the plaintiff to be able to pay instalments. He
arranged the amount of instalments on his own and paid them to the custodian. Defendant No. 2 after paying the total amount in respect of the land
measuring 16 kanal 6 marla obtained sale certificate. Mutation was sanctioned in his favour on 7.3.86. Fact that the plaintiff did not take any step
to enforce this agreement for so long shows that no such agreement was executed by defendant No. 2 in his favour. He could never agree to the
delivery of possession to the plaintiff as he had leased out the land to defendant No. 1 for a period of 50 years by means of lease deed dated
21.12.81 which was duly registered. Actual possession was with defendant No. 1 as lessee. Defendant No. 2 has sold the suit land to defendant
No. 1 for a sale consideration of Rs. 6,000/- by means of sale deed dated 29.1.88 duly registered at the instance of one Des Raj son of Hakim
Rai in whose favour the defendant No. 2 had agreed to sell the suit land by means of agreement dated 27.12.81 under which said Des Raj was
authorised to get sale deed executed in his favour or in favour of any other person of his choice. It was pleaded that the plaintiff had no right, title
or interest in the land in suit.
3. At the conclusion of the trial of the suit, the suit was decreed for specific performance in favour of the plaintiff by Civil Judge (Junior Division),
Sonepat. He directed the defendants to execute sale deed with regard to the land in suit in view of his finding that defendant No. 2 had executed
agreement to sell dated 12.1.82 in favour of the plaintiff with regard to the land in suit. It was found that he had received the entire sale money at
the time of the execution of the agreement.
4. Defendant Ram Parkash went in appeal. In appeal, Ram Parkash made an application for amendment of the written statement under Order 6
Rule 17 read with Section 151 CPC whereby he prayed that he was bonafide purchaser for consideration without notice. Land in suit is adjacent
to the land of defendant No. 1 and he had taken the land in suit on lease for 50 years as he had no other approach to his land except through the
land in suit. Vide order dated 15.9.99, learned Additional District Judge, Sonepat allowed Ram Parkash defendant to incorporate the proposed
amendment in the written statement.
5. Not satisfied with the order dated 15.9.99 allowing amendment of the written statement by Additional District Judge, Sonepat, Om Parkash
plaintiff has come up in revision to this court.
6. It was submitted by the learned counsel for the petitioner (plaintiff) that proposed amendment should not have been allowed as the parties, were
before the court of appeal and not before the trial court. It was submitted that a very strong case was required to be made out by the defendant for
permission to him to amend the written statement when they were in appeal and when a valuable right had become accrued to the plaintiff in whose
favour the suit had been decreed. It was submitted that in appeal such an amendment is not to be allowed as a matter of course. In support of this
submission, he drew my attention to Zile Singh and Anr. v. Darkan 1984 PLJ 346; Hans Raj v. Savitri Devi and Ors. 1986 89 P.L.R. 92; Dewan
Chand v. Kalyan Dass and Anr. 1987 91 P.L.R. 191 and Mewa and Anr. v. Randhir Singh and Ors. 1989(1) RLR 225 where it was held that
amendment at appellate stage should not be allowed as a matter of course. A very strong case is required to be made out by the defendant to be
able to incorporate amendment when there was already a decree in favour of the plaintiff. It was submitted that mere mention in that application for
the amendment of the written statement that the fact sought to be pleaded through proposed amendment was left to be pleaded due to some
inadvertence is not sufficient.
7. It was submitted that no amendment of pleadings can be allowed the effect of which is the introduction of mutually destructive pleas. There can
be no quarrel so far as this principle of law is concerned that no amendment of pleadings can be allowed which has the effect of introduction of
mutually destructive pleas.
8. In my opinion, the learned Additional District Judge justifiably allowed amendment of the written statement to the defendant as essential facts
had already been pleaded by the defendants constituting their pleas. Through amendment of the written statement, only additional plea was sought
to be taken namely that Ram Parkash was a bona fide purchaser for consideration without notice of any agreement in favour of the plaintiff.
Defendant No. 1 Ram Parkash pleaded that vide registered lease deed dated 21.12.81, land in suit had been leased out to him by Urmil Kumar
alias Vimal Kumar for a period of 50 years. It had also been pleaded that Urmil Kumar alias Vimal Kumar had executed an agreement to sell
dated 27.12.81 in favour of one Des Raj. It was vide sale deed dated 29.1.88 that defendant No. 1 purchased this land from Urmil Kumar alias
Vimal Kumar at the instance of Des Raj who was holding agreement to sell dated 27.12.81 in his favour and who had the option either to purchase
by himself or let his nominee purchase. In this case, learned Additional District Judge has allowed only the amendment. He has not set aside the
decree passed by the learned Civil Judge (Junior Division), Sonepat and he has not remanded the case to him. He has only allowed amendment of
the written statement. After the plaintiff files replication to the amended written statement, issue will be framed covering the additional plea
introduced by way of amendment. On that issue, both the parties will be called upon to produce evidence. Leaned trial court will record evidence
on that issue and return the finding on that issue to the learned appellate court together with that evidence. Proposed amendment will warrant them
only the partial remand of the case which will not prejudice the plaintiff. Appeal will remain pending before the appellate court.
Revision disposed of subject to these observations.