- (1.) Leave granted.
(2.) We have heard the counsel on both sides. Admittedly the respondents are owners of the land measuring 5 acres 39 guntas in Bhoopasandra village, Kasaba Hobli, Bangalore North Taluk. An agreement dated 25-1-1991 was entered into between the appellants and the respondents. On the basis thereof the appellants filed a suit for perpetual injunction restraining the respondents from interdicting with his possession and further activities thereon. The written statement was filed taking certain stands. In paragraph 6 of the written statement, the respondents have stated thus: "It is true that this defendant has entered into an agreement of sale with the plaintiff, agreeing to sell the suit schedule property on 25-1-1991 and for a sale consideration of Rs. 29-87,000/- and that day the plaintiff has paid sum of Rs. 2,50,00/- as token advance and agreed to pay a sum of Rs. 5,00,000/- within 2 weeks from the date of agreement and the balance amount shall be paid on or before 31-3-1992. But the possession of the schedule property was not delivered to the plaintiff at all. It is relevant to state here that the plaintiff has not acted upon as per the terms of the agreement and he had not paid further advance amount of Rs. 5,00,000/- till 19-3-1991, in spite of repeated requests and demands made by the defendant. Hence the defendant was constrained to cancel the agreement dated 25-1-1991 by issuing a legal notice on 19-3-1991. It is also relevant to state here that though there is a mention regarding delivery of possession of the schedule property to the plaintiff in the agreement, the possession has not been delivered to the plaintiff at any point of time. On the other hand the defendant is in peaceful possession and enjoyment of the schedule property and all the revenue records stand in the name of this defendant. It is further submitted that the defendant is in actual possession of the schedule land which makes it more crystal clear from the documents referred to above and produced along with the written statement." Subsequently an application under Order 6 Rule 17 was filed for amendment of the first sentence of paragraph 6 which reads thus: "Delete the averments made in para 6 of the Written Statement" It is true that this defendant has entered into an agreement of sale with the plaintiff, agreeing to sell the suit schedule property on 25-1-1991 for a sale consideration amount of Rupees 29,87,000/-" In place of it add; It is incorrect to state that the defendants have entered into an agreement of sale with the plaintiff on 25-1-1991. It is true that the defendants have entered into an agreement with the plaintiff on 25-1-1991 for the development of the suit schedule land for the mutual benefit of the parties. 2. Delete the word, "of sale" in fifth line of para 8 of the written statement. 3. Delete the words "of sale" at lines 9 and 13 of the para 5 of the objection statement to I. A. 4. Delete the words "of sale" at lines 9 and 13 of para 5 of the objection statement to I. A. No. 2."
(3.) The trial Court dismissed the petition holding that it is not open to the respondent to explain whether the agreement entered into was an agreement of sale or for mutual benefit since the agreement was subsilentio in that behalf. The High Court C. R. P. No. 5246/91 by judgment dated 6-9-1994, allowed the amendment. Thus this appeal by special leave.;