RITU BAHRI,J. - (1.) Challenge in this petition is to the order dated 24.07.2012 (Annexure P1) passed by the Civil Judge (Junior Division), Faridabad, whereby application filed by the plaintiff-respondent under Order 6, Rule 17 CPC seeking amendment of plaint has been allowed.
(2.) M/s Shalimar Town Planners-plaintiff (respondent herein) filed a suit against the defendants-petitioners on 25.03.2007, alleging that the defendants had entered into an agreement to sell with regard to the suit property measuring 8 Kanals situated in the revenue estate of village Bhatola, for a total sale consideration of Rs. 1,10,00,000/-. The defendants petitioners had received a sum of Rs.14,10,000/- as advance in cash. Thereafter, defendant No.2 received further payment of Rs.13,00,000/- through a cheque drawn at Citi Bank. After receiving Rs. 27,10,000/- as advance, the agreement and receipt were executed by the defendants in favour of plaintiff-respondent. The date of registration of sale deed was tentatively fixed as six months, subject to sanctioning of mutation after getting the suit land partitioned amongst its co-sharers. However, the defendants made attempts to wriggle out from the agreement dated 25.03.2007 by alienating the suit land to some other builder of the area. Upon notice, defendants-petitioners filed written statement on 25.03.2009 stating that the agreement stood cancelled and the earnest money stood forfeited.
(3.) Since the defendants-petitioners had taken a specific plea that the agreement stood cancelled and the earnest money stood forfeited, the plaintiff-respondent filed an application under Order 6, Rule 17 CPC (Annexure P-5) seeking amendment of plaint by treating it as "Suit for possession by way of specific performance with consequential relief of permanent injunction.". Vide aforesaid application para Nos.7, 8, 9, 11 and 13 of the plaint were sought to be amended by inserting new paras to the following extent:- "7. That plaintiff earlier filed suit for permanent mandatory injunction as defendants were bent upon to alienate the suit property in favour of third person without getting its partition amongst its co-sharers and bent upon to wriggle out from the binding nature of terms and conditions of agreement to sell dated 25.03.2007. The defendants submitted their written statement in the said suit and submitted that agreement in question has stood cancelled and advance money of Rs.27,10,000/- has been forfeited. In view of above submissions, plaintiff has no other efficacious remedy except to file suit for possession by way of specific performance of agreement." In Para No.8 of the plaint, 6th line may be deleted and after words suit, following line may be allowed to be inserted: "for possession by way of specific performance of agreement and as a consequential relief of permanent injunction against them." In Para No.9 of the plait, line after competent Court, following line may be allowed to be inserted: "Cause of action further accrued on 25.03.2009 when defendants submitted written statement and submitted that agreement stood cancelled and earnest money stands forfeited, since then it has been recurring and finally on 07.04.2010 when plaintiff asked defendants to execute sale deed in favour of plaintiff after receiving balance sale consideration and they finally refused on 07.04.2010. Hence, 07.04.2010 is the final date of cause of action which necessitated the institution of the suit." Para No.11 of the plaint be deleted and it should be read as under: "That value of the suit for the purpose of Court fees and jurisdiction is Rs.1,10,00,000/- on which fixed Court fee of Rs.3,81,300/- has been affixed on the plaint." Para No.13 of the laint may be omitted and following new para may kindly be allowed to be inserted: 13. It is, therefore, prayed that: (i) That a decree for possession by way of specific performance of the agreement may kindly be passed in favour of the plaintiff against the defendants in respect of 8 Kanals land as mentioned in para Para-2 of plaint on payment of balance sale consideration of Rs.82,90,000/; (ii) That if defendants filed to execute and register the sale deed, then local commission may kindly be appointed who may execute the sale deed in favour of the plaintiff; (iii)That possession of the suit property may kindly be delivered to the plaintiff; (iv) That a decree for permanent injunction may kindly be granted in favour of the plaintiff against the defendants restraining the defendants from transferring/alienating the suit land detailed in Para- 2 of the plaint by way of sale, lease deed, gift deed, will, court decree or by any other method to any other person except the plaintiff; (v) Costs of the suit may also be awarded in favour of the plaintiff against the defendants; (vi) Or any other relief which this Hon'ble Court deems fit and proper may also be granted in favour of the plaintiff against the defendants" ;