A.N. Jindal, J. - (1.) THIS petition assails the order dated 05.02.2011 (Annexure P -6) passed by the Additional Civil Judge (Senior Division), Palwal, whereby the application filed by the plaintiff -respondent (hereinafter referred to as 'the respondent') under Order 6 Rule 17 read with Section 151 Code of Civil procedure for amendment of the plaint, was allowed.
(2.) EARLIER the respondent had filed a suit against the petitioner for specific performance of the agreement to sell dated 26.07.2004. During the pendency of the said suit, Dharam Pal had obtained a decree on 07.05.2007 for possession on the basis of another agreement dated 26.04.2004. Since the suit of Dharam Pal was decreed during the pendency of the suit, therefore, the respondent moved an application for amendment of the plaint on 28.05.2007 challenging the judgment and decree passed in favour of Dharam Pal and also for his impleadment as a Defendant. The trial Court accepted the said application. The Counsel for the petitioner has come to contend that this amendment should not have been allowed as the factum of pendency of the suit was already in the knowledge of the petitioner since 2005 when he filed the written statement in the Court. Heard. I am not convinced with the arguments advanced by counsel for the petitioner. Previously, the suit filed by Dharam Pal had not reached the culmination, as such the application was filed immediately after the decree in the said suit was passed on 07.05.2007. Therefore, the application for amendment cannot be said to be delayed one. Since, Dharam Pal had obtained decree qua the same land, regarding which the suit of the respondent was pending, therefore, without challenging the decree passed in favour of Dharam Pal, it would be difficult for the respondent to earn the fruits of the decree which may ultimately be passed in the suit preferred by him. When the two vendees from the same vendor file two suits and a decree is passed in favour of one vendee, then on request of the first vendee seeking amendment to the pleadings to challenge the decree of the second vendee, the Court could allow the amendment. Even otherwise, the decree having passed during pendency of the suit is a subsequent event, which could be brought on record by way of amendment. Similar observations were made in case Phumman Singh v. Sukhwinder Kaur and Anr., 2010 (4) RCR 185 wherein it was observed as under: Section 19 of the Specific Relief Act, 1963, contemplates enforcement of a contract against either party thereto; any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice to the original contract. In terms of clause (b) of Section 19 of the Act, the petitioner is claiming title through his vendor. The question whether he is a transferee in good faith and without notice of the contact, are the disputed questions of act, which can be examined only after opportunity of leading evidence is granted to the parties. The plaintiff has sought amendment to incorporate the subsequent facts to the filing of the suit on 13.05.2004. Therefore, the petitioner is not only a proper party, but also a necessary party as his vendor has transferred right in favour of the petitioner and for an effective decree for specific performance, he is bound to join his vendor in execution of the sale deed, if the plaintiff succeeds in his suit for specific performance.
(3.) THE principle that no amendment could be allowed after the trial commenced is not applicable in this case, where the amendment is being allowed on account of the subsequent events occurring between the parties. So long as the decree passed by the Court in a previous suit, in which the respondent was not a party is not challenged, it would remain a permanent hurdle in the way of the petitioner and the decree passed subsequently would be a futile exercise.;