- (1.) AGGRIEVED by order dated 24.11.2014 in Title Suit No. 17 of 2007, the present writ petition has been filed.
(2.) TITLE Suit No. 17 of 2007 was filed by the petitioner who is plaintiff in the said suit for specific performance of the oral agreement with the defendant no. 1 who agreed to sale the suit premises for a consideration of Rs. 75,000/. It is stated that on 10.03.2000, the defendant no. 1 approached the plaintiff and offered the suit premises for sale and in the year, 2002 the defendant no. 1 requested the plaintiff to pay the municipal dues of Rs. 718.14/ . The defendant no. 1 received an amount of Rs. 30,000/ for his domestic expenses from the plaintiff on 01.01.2007 and thereafter, the plaintiff asked the defendant no. 1 to execute the sale deed however, for one reason or the other, the defendant no. 1 failed to execute the sale deed. In the meantime, the defendant no. 1 executed agreement of sale in favour of defendant no. 2 and on that basis the defendant no. 2 started claiming title over the suit premises. In these facts, the petitioner instituted Title Suit No. 17 of 2007. The defendants appeared in the suit and filed their written statement. The defendant no. 1 took a plea that the property in question is a joint family property and therefore, the suit must fail for the reason of nonjoinder of necessary parties.
(3.) THE learned counsel for the petitioner submits that, in view of the objection taken by the defendant no. 1 in the written statement, the plaintiff filed application dated 10.11.2014 under Order VI Rule 17 C.P.C. seeking amendment in the plaint however, the said application has erroneously been rejected by the trial court. It is submitted that, the application seeking amendment can be considered at any stage and merely because it has been filed at a belated stage, the same cannot be dismissed. Title Suit No. 17 of 2007 discloses that the plaintiff has taken a specific stand that defendant no. 1 approached him and he agreed to sale the suit schedule property for a consideration of Rs. 75,000/. The averments made in the plaint disclose that on different occasions it was defendant no. 1 who approached the plaintiff and the plaintiff entertained his request for making payment of the municipal dues. The plaintiff has averred that he made a payment of Rs. 30,000/ to the defendant no. 1 and thereafter, on different occasions he requested the defendant no. 1 for executing an agreement for sale. Nowhere in the plaint it has been stated that other cosharers also approached the plaintiff or the plaintiff had oral agreement with any one of them. The plea taken by the defendant no. 1 in the written statement is a plea on the merits of the matter. The issue whether the defendant no. 1 was entitled to enter into an agreement and, whether the plaintiff can enforce the alleged oral agreement for sale of the suit schedule property, would be adjudicated on the merits of the matter. The competence of the defendant no. 1 to sell joint family property would be an issue in Title Suit No. 17 of 2007. The object behind Order VI Rule 17 C.P.C is justice, equity and good conscience. An application under Order VI Rule 17 C.P.C. can be allowed, no doubt, at any stage however, the same must be in relation to a fact already pleaded in the plaint/written statement. An altogether new fact cannot be introduced in the pleading by moving an application for amendment. The learned counsel for the petitioner refers to the observation in the impugned order dated 24.11.2014 and submits that, though the correct principle of law has been noticed by the trial court however, the application has erroneously been dismissed. From the facts disclosed in the writ petition and from perusal of the plaint of Title Suit No. 17 of 2007, I am of the opinion that the application under Order VI Rule 17 C.P.C. filed by the plaintiff was to fill up the lacuna in his case which has rightly not been allowed by the trial court.;