- (1.) D. K. Seth, J. In a suit for specific performance the petitioner was one of the defendant, Sri Arjun Singhal, learned Counsel for the petitioner submits that no summon of the suit was ever served upon the petitioner. He was summoned to ap pear as a witness in the suit, pursuant to which he came and executed a Vakalat- nama in favour of his Counsel for the purposes of answering the summons, re quiring him to give evidence and not for a purposes of contesting the suit because there was no occasion for him to contest the suit. He further alleges that the suit was amended by order dated 14-1-1986 after the death of the defendant's father. He further allegeg that he was alleged to have executed a deed in favour of the plaintiff on the basis of power of attorney executed by his father, who had subsequently revoked the said power of attorney. In fact he had never executed any deed. By virtue of amendment on the death of the defendant's father it was alleged that by reason of the alleged execution of sale-deed the share of the defendant was trans ferred. Therefore the suit for specific per formance in respect of the share of the petitioner-defendant on the basis of such amendment, was decreed ex-pane on 28-7-1988. It is then contended by Sri Singhal that after the amendment was allowed the petitioner was entitled to fresh summons of the suit, particularly when he had never been summoned to contest the suit. Unless summon is issued after amendment is al lowed the suit could not have been proceed, and thus appearance of the petitioner, even if taken to be the appearance in the suit which Sri Singhal argues that the said fact is only an assumption and not admis sion. By reason of the amendment, cannot be taken to be the appearance in the suit. According to him unless fresh notice is given after the amendment is allowed the suit cannot be proceeded and it should be treated to be in absence of summons. He relies on the decision in the case of Smt. Son Kunwar Rai v. Indra Bai, 1986 (1) Current Civil Causes 1086. The said decision of Madhya Pradesh High Court was rendered by Single Judge in second appeal with regard to the point, "whether, in the facts and circumstances of the case, a notice of the amendment made by the plaintiff was mandatory to the defendant (appellant herein), irrespective of the fact that she was ex- parte when the application was made ?"
(2.) THE facts of the case was sum marised in para 3 of the said judgment to the following effect: "the appellant-defendant though deny ing the plaintiff's averments, has filed the writ ten statement, yet thereafter remained absent allowing the trial Court' to proceed ex-parte against her. THE respondent/plantilff on the day preceding the date of judgment passed by the trial Court i. e. 10-9-1979 moved an application under Order VI, Rule 17, CPC for amending the plaint. THE trial Court on the same day allowed the amendment sought for without is suing notice or affording any opportunity to the appellant-defendant and on the next day i. e. 11-9-1979, delivered the judgment. " On these facts the said decision was rendered. In the said case it was held: "6. No. doubt for moving an application for amending the plaint or written statement under the provision of Order VI, Rule 16, CPC no stage is prescribed but all the same if amend ment is made or sought for, then opportunity to the other party must be afforded so that the party concerned becomes aware of what case he has to defend. 9. In the instant case it appears that as the appellant-defendant remained absent the trial Court did not think it proper to serve notice to the defendant. That is not the law. Even if the party is ex-parte, if an amendment application is made then that must be served to the party concerned and still if the party remains absent despite notice, then the court after applying its discretion may pass an appropriate order. Thus even in ex-parte case without serving the notice of amendment application to the party who remained ex-parte and allowing amendment be hind his back, would be without jurisdiction. " The above observation indicates that notice relating to amendment is to be given. If despite such notice the other side remains ex-parte in that event the court after applying its discretion may pass ap propriate order. This case was on the has;: of facts of the case decided therein. In the said case the suit was decreed ex-parte on 11-9- 1979, whereas the amendment was allowed one day before, namely, on 10-9-1979 without giving notice. In the present case nowhere it has been alleged that copy of amendment application was not served on the learned Counsel for the petitioner-defendant or that he was not aware of the amendment allowed. The amendment was allowed on 14-1-1986 whereas the petitioner had appeared in the suit on 29-11-1985. The suit was ultimately decreed ex-parte on 28-7- 1988. The time gap between 14-1-1986 and 28-7-1988, namely, twoyears and six months was suffi cient for the petitioner-defendant who had knowledge of the suit, to contest the suit and appear on the date for ex-parte hear ing.
(3.) THE contention that he had ex ecuted Vakajatnama only for the purposes of answering the summons, requiring him to give evidence, is very difficult to accept. For the purposes of answering the sum mons requiring person to give evidence, does not require for execution of Vakalat-nama. If he appears as a witness in the Uit he is not required to execute Vakalatnama in favour of any Counsel. Vakalatnama is executed in favour of the Counsel only for the purposes of empowering the Counsel to conduct the case on behalf of the petitioner. The appearance of the party in a sUit is signified by filing a Vakalatnama through a Counsel. If the person wants to appear in person, he has to file memo of appearance. Execution of Vakalatnama cannot signify that it is only for the pur poses of giving evidence and not for con testing the sUit. In the appellate court order it has been found that he had not only filed Vakalatnama but he had made certain applications in the sUit which is apparent from the record. Thus, it shows that Vakalatnama was executed for the purposes of conducting the sUit. If the application for amendment was filed only after one month and 16 days from the date of his appearance, therefore, it cannot be said that despite being represented through a lawyer on the basis of Vakalat nama so executed the application for amendment Was not served on the learned Counsel for the petitioner- defendant. My notice has not been drawn to any material to show that the said Counsel was ever discharged or that the application for amendment was not served on the Counsel for the petitioner or that the application for amendment was not served at all on the Counsel or that the order dated 14-1- 1986 allowing the amendment was not within the knowledge of the petitioner.;