- (1.) THE petitioner is the defendant in a suit for specific performance brought by the respondents against him to enforce a contract dated 15th May, 2008 agreeing to sell his suit property. The civil suit was instituted on 18th October, 2011. The plaintiff and proforma respondent Nos.2 to 4 are the vendors. Respondent No.1 Mukhtiar Singh is the plaintiff -co -vendee. A joint written statement was filed by the petitioner and the proforma respondents on 09th November, 2011 contesting the suit. In the original written statement the defence taken was that on 15th July, 2008, two months after the agreement, a compromise was effected between the parties and as per the compromise, the defendants returned Rs.6.5 lacs being the earnest money and Rs.1.5 lacs on account of compromise amount totalling Rs.8 lacs which was said to have been paid to the plaintiff to call off the deal. The amount was returned in the presence of witnesses; namely Satpal Singh, Darshan Singh, Manpreet Singh and Jagjit Singh, a former Sarpanch of the village panchayat. After receiving the money, the plaintiff is averred to have handed over the original copy of the agreement to sell to the petitioner which he tore in front of the plaintiff. It was pleaded that the agreement stood revoked in this manner. Therefore, the plaintiff did not have the original copy of the agreement to sell and yet filed the suit for specific performance. It was averred that the plaintiff might concoct a story that the original agreement to sell is lost, which is totally incorrect because the original agreement to sell had been torn and burnt. The suit was filed on the basis of the photocopy of the original agreement to sell. Midway in the suit, the plaintiff produced the original agreement to sell to the utter surprise of the vendors. This led the petitioner to file an application under Order 6 Rule 17, CPC for amending the written statement to bring the true facts on record for the just and fair adjudication of the dispute. In the amendment prayed for it was prayed that the defendants desired to delete the entire para.3 of the written statement and substitute the same after the 10th line of existingpara.3 with the following words: - "But the plaintiff with his cleverness has destroyed the colour photostat copy of the agreement to sell and kept the original agreement to sell with the intention to play fraud. Therefore, the defendants are not bound by this agreement to sell because in front of the Panchayat members and witnesses the original agreement to sell has been cancelled and the plaintiff had torn and burnt the same."
(2.) MEANING thereby that it was not the petitioner who tore and burnt the original agreement but this was the handywork of the plaintiff/respondent No.1 herein. It is now stated that what was destroyed was the coloured xerox copy of the agreement through what is called 'cleverness' and the original agreement to sell was surreptitiously retained with intention to play fraud on the vendors contrary to the compromise rescinding the agreement to sell.
(3.) THE Additional Civil Judge (Senior Division), Sunam by order dated 28th January, 2014 has dismissed the application for amending the written statement and has consequently posted the case for evidence of the defendants for 10th February, 2014. It may be noted that the application was filed on 05th April, 2013. At the time of motion hearing on 12th February, 2014 when this matter came up for the first time before this Court for preliminary hearing the attention of the learned counsel for the petitioner was drawn by court to the following observations of the learned trial Court which read: - "But after the completion of the pleadings of the parties, when the matter was fixed for consideration of the stay application under Order 39 Rule 1 and 2 of CPC, the plaintiff had produced the agreement to sell dated 15.05.2008, in original, on record. There is clear cut observation of the learned Predecessor in the Court, in this regard, in his order dated 09.11.2011." Noticing the rather serious repercussions of the observation with respect to production of the agreement to sell dated 15th May, 2008, in original, on record in the context of the order passed by the predecessor Court dated 09th November, 2011 and in not finding the order dated 09th November, 2011 on the record of the paper -book presented before this Court, this Court required the petitioner to place on record the order dated 09th November, 2011 mentioned in the impugned order to enable this Court to completely understand the claim made in this petition. The matter was adjourned sine die for the needful. Learned counsel for the petitioner has filed CM Nos.5998 -99 -CII of 2014 placing on record the order dated 09th November, 2011. A perusal of the order dated 09th November, 2011 reveals that it was passed on an application under Order 39 Rules 1 and 2, CPC preferred by Mukhtiar Singh -plaintiff for restraining the vendors to further alienate the suit property. The defendants have filed reply to the application in which the defence of compromise was taken though admitting execution of agreement to sell. This was in line with the defence taken in the written statement. It has been recorded in the order that the original agreement was produced in Court on 09th November, 2011. The trial Court recorded that the production of the original agreement defeated the version propounded by the defendants. In support of their case of compromise, the defendants did not produce any receipt of payment of Rs.8 lacs to the plaintiff as also no affidavit of the persons before whom allegedly the amount was returned was filed to substantiate the defence. The restraint order followed in the shape of issuing temporary injunction in favour of the plaintiff restraining the defendants from alienating the suit property to any person except the plaintiff till the disposal of the suit. It is not the case of the petitioner that the order dated 09th November, 2011 was appealed against before a superior court. The petitioner waited and filed the application under Order 6 Rule 17 CPC belatedly on 05th April, 2013 which has been declined by the impugned order dated 28th January, 2014 which is under challenge in this petition.;