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PETITIONER: SHRI LAKHI RAM (DEAD) THROUGH LRS.

       Vs.

RESPONDENT: SHRI TRIKHA RAM & ORS.

DATE OF JUDGMENT:       05/02/1998

BENCH: S.B. MAJMUDAR, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Majmudar, J.      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

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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

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    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

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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.