# Sushila Devi v. Deevan Chand &Anr

- **Citation:** (2019) 1 ILRA 1319
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-17
- **Case number:** Matters Under Article 227 No. 6665 of 2017
- **Bench:** Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushila-devi-v-deevan-chand-anr-44400
- **Pages:** 4

## Headnote

A. Civil Procedure Code, 1908 - Order 6
Rule 17. Revisional Court has allowed
the Revision Primarily on the ground
that Principles of res- judicata did not
permit trial Court to allow the second
amendment
application
without
considering that the second amendment
application was on entirely different
pleas- rejection of the first amendment
application will not- operateas resjudicata-
Thus
trial
Court
allowing
application for amending the written
statement has been set aside by the
Revisional
Court-
The
Amendment
sought was not necessary to determine
the issue arising out in the suit and trial
Court acted with material irregularities
in exercise of its jurisdiction- Petition
dismissed.(Para 5,7,8,9) (E-2)

## Text

1 All. Sushila Devi Vs. Deevan Chand & Anr.
1319
set aside. The order dated 22.08.2014
rejecting the application under Section 5
of the Limitation Act by the Judge Small
Causes Court in Miscellaneous Case No.
75 of 2013 (Samaj Sangathan Uttar
Pradesh Vs. Nagar Nigam and others) is
restored and affirmed.

30.
For
the
discussions
made
hereinabove and the decision taken, the
connected petition stands dismissed as
infructuous.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.07.2019

BEFORE
THE HON'BLE MANOJ KUMAR GUPTA, J.

Matters Under Article 227 No. 6665 of 2017

Sushila Devi ...Petitioner
Versus
Deevan Chand &Anr. ...Respondents

Counsel for the Petitioner:
Sri Sailendu Kumar Upadhyay, Sri Jahar
Singh(Kashyap), Sri Shive Datta Yadav.

Counsel for the Respondents:
Sri Kunwar Bhadur Dixit.

A. Civil Procedure Code, 1908 - Order 6
Rule 17. Revisional Court has allowed
the Revision Primarily on the ground
that Principles of res- judicata did not
permit trial Court to allow the second
amendment
application
without
considering that the second amendment
application was on entirely different
pleas- rejection of the first amendment
application will not- operateas resjudicata-
Thus
trial
Court
allowing
application for amending the written
statement has been set aside by the
Revisional
Court-
The
Amendment
sought was not necessary to determine
the issue arising out in the suit and trial
Court acted with material irregularities
in exercise of its jurisdiction- Petition
dismissed.(Para 5,7,8,9) (E-2)

(Delivered by Hon'ble Manoj Kumar
Gupta J.)

1. The instant petition is directed
against the order dated 27.09.2016 passed
by the District Judge, Mainpuri in Civil
Revision No. 77 of 2013. The revision has
been allowed and the order passed by the
trial court dated 26.09.2013 allowing
application 79-ka-1 of defendant No.1 for
amending the written statement has been
set aside.

2. The first respondent instituted a
suit bearing No. 49 of 2005 against the
petitioner for specific performance of an
agreement to sell dated 02.12.2003.
According to the plaint assertions, the
petitioner agreed to sell the suit property
and
accordingly
entered
into
an
agreement to sell dated 02.12.2003
whereunder the total sale consideration to
be paid was Rs. 2,00,000/- out of which
Rs. 95,000/- was paid as earnest money. It
was also the case of the plaintiff that after
execution of the agreement, a further sum
of Rs. 1,00,000/- was paid to the
petitioner
against
receipt
dated
13.02.2004. Thus, according to the
plaintiff, only Rs. 5,000/- remained
unpaid. It seems that soon after gaining
knowledge of the suit, the petitioner
executed a sale deed dated 31.05.2005 of
the suit property in favour of Shiv Pratap
Singh,
the
second
respondent.
The
petitioner filed written statement in the
suit on 25.07.2005 wherein she took a
stand that the alleged agreement is a sham
document. No money was paid to her
under the said agreement. There was also
no agreement for sale of the property but
the plaintiff by misrepresenting that the
1320 INDIAN LAW REPORTS ALLAHABAD SERIES
defendant has to be witness in some
matter obtained her signature and thumb
impressions. Thus, the very execution of
the agreement for sale was denied. The
petitioner filed an additional written
statement dated 23.04.2007 in which she
reiterated the stand taken in the original
written statement that in fact there was no
agreement as alleged.

3. The second respondent who
purchased the property from the petitioner
during
pendency
of
the
suit
was
impleaded as defendant No.2. He filed his
written
statement
on
16.05.2007
reiterating the stand taken by the
petitioner in her written statement that her
signatures
were
obtained
by
misrepresentation and in fact there was no
agreement for sale between the parties nor
any money was paid to her under the said
agreement.

4. After commencement of the trial,
the petitioner filed an application seeking
amendment in the written statement to
incorporate a plea that she is ready to
return money paid to her under the
alleged agreement to the plaintiff. The
amendment was rejected by the trial court
by order dated 08.07.2013 and the matter
was fixed for recording of the remaining
evidence of the defendant. The order
rejecting the amendment application dated
08.07.2013 was not challenged before any
higher court. On the other hand, the
petitioner filed another application dated
22.07.2013
once
again
seeking
amendment in the written statement. This
time, the plea sought to be introduced was
that sale deed dated 31.05.2005 was
executed by the petitioner in favour of
defendant No.2 to secure a loan. It confers
no right or interest in favour of defendant
No.2. It was also alleged that while
executing deed dated 31.05.2005, the
petitioner had informed defendant No.2
about document dated 13.02.2004 in
favour of the plaintiff. He was informed
that it was executed to secure Rs.
1,95,000/- taken as loan from the plaintiff.
It was also alleged that in pursuance of
sale deed in favour of defendant No.2
possession has not been delivered to him
and that Rs. 35,000/- had already been
returned. She is ready to return the
balance amount of Rs. 1,70,000/- to
defendant No.2. The sale deed dated
31.05.2005 is void and hit by lispendens.
The petitioner has no other house and
consequently plaintiff is not entitled to
decree of specific performance and the
suit is barred by Section 16 (c) of the
Specific Performance Act. The trial court
allowed the amendment application by
order dated 26.09.2013 and aggrieved
whereby the plaintiff filed Civil Revision
No. 77 of 2013 which has been allowed
by the revisional court by order dated
27.09.2016 impugned herein.

5. Learned counsel for the petitioner
submitted that the revisional court has
allowed the revision primarily on the
ground that principles of res-judicata did
not permit trial court to allow the second
amendment
application,
but
without
considering that the second amendment
application was on entirely different
pleas. Thus, according to him, rejection of
the first amendment application will not
operate as res-judicata.

6. Learned counsel for the plaintiff
respondent, on the other hand, submitted
that the second amendment application
was wholly frivolous and malafide. The
trial had commenced long back and it was
at the stage of cross-examination of DW-2
when the application was filed, therefore
1 All. Sushila Devi Vs. Deevan Chand & Anr.
1321
it was barred under proviso to Order 6
Rule 17 C.P.C. as substituted by Act No.
22 of 2002. He further submitted that the
second amendment application amounts
to changing the case set up in the original
written
statement,
therefore
even
otherwise, the same could not have been
allowed.

7. It is not in dispute that when the
second amendment application was filed,
the suit was pending on the stage of crossexamination of DW-2. Order 6 Rule 17
C.P.C. as amended by Act No. 22 of 2002
provides
that
"no
application
for
amendment shall be allowed after the trial
is commenced, unless the Court comes to
the conclusion that inspite of due
diligence, party could not have raised the
matter before the commencement of trial".
The reason disclosed in the application for
not being able to raise the pleas in the
beginning is that the previous counsel
despite being informed about entire facts
did not incorporate the same in the written
statement. Thus, it is not in dispute that
the pleas now sought to be introduced
were in the knowledge of the petitioner
since the very beginning and even before
the written statement was filed. The
explanation given by the petitioner for not
being able to raise the pleas before
commencement of the trial does not fall
under the exception carved out under the
proviso to Order 6 Rule 17 C.P.C. Had
due diligence been exercised, the plea
could have been raised before the
commencement of the trial.

8. There is another reason why the
amendment does not deserve to be
allowed. The amendments in pleadings
are allowed to determine the real question
in controversy between the parties. By the
amendment
sought,
the
petitioner
primarily wanted to raise plea to the effect
that the sale deed dated 31.05.2005
executed by her in favour of defendant
No.2 was by way of security and therefore
possession was not delivered to defendant
No.2. She also tried to contend that the
sale deed in question is thus void in the
eyes of law. The suit is for specific
performance
of
agreement
of
sale
allegedly executed by the petitioner in
favour of the plaintiff respondent. The
issue as to whether sale deed dated
31.05.2005 executed by the petitioner
during pendency of the suit in favour of
second respondent confers any title in his
favour is not an issue in the instant suit.
The trial court would not decide dispute
between two defendants in a suit
instituted by the plaintiff-respondent for
specific performance of agreement of
sale. Thus in my opinion, even otherwise,
the amendment sought was not necessary
to determine the issues arising out in the
suit and the trial court acted with material
irregularities in exercise of its jurisdiction
in ignoring the said aspect while allow the
amendment application.

9. There is another aspect of the
matter. In the original written statement,
the petitioner has denied having executed
any agreement of sale in favour of the
plaintiff respondent. Her specific case was
that her signatures were obtained by
misrepresenting that she had to act as a
witness. However, the plea which is now
sought to be introduced by amendment
would show that the petitioner admits that
the deed was duly executed between the
parties and she had also received money
thereunder, which she is ready to return.
Thus, a new case is sought to be set up in
this regard by the petitioner through
amendment which has rightly been
declined by the revisional court.
1322 INDIAN LAW REPORTS ALLAHABAD SERIES

10. No doubt, the amendment now
sought is not same as was sought earlier
and to that extent the observation made by
the revisional court may not be correct,
but for the reasons spelt out above, this
court reaches to the same conclusion.
Accordingly, this Court declines to
interfere with the impugned order in
exercise of supervisory power under
Article 227 of the Constitution.

11. The petition is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.07.2019

BEFORE
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Matters Under Article 227 No.5314 of 2019

Asharam Chaurasia ...Petitioner
Versus
Om Prakash Gupta &Ors. ...Respondents

Counsel for the Petitioner:
Sri Om Prakash Gupta & others

Counsel for the Respondents:
Sri Prem Chandra, Sri Manish Chandra
Tiwari.

A. Provincial Small causes Courts Act,
1887,
Section
23-
Challenge
to
-
Application - return of Plaint in a Suit
involving question of title- there must be
prima
facie
material
on
record
to
demonstrate that there was a serious
substantial issue of title which may justify
the relegation of parties to institute
appropriate proceedings before the regular
Civil Court having jurisdiction - The suit
for arrears of rent and eviction is supposed
to be decided on the basis of relationship
of
Landlord
and
tenant-between
the
parties. Hence the Court below has not
committed any error in rejecting the
application where the relationship is duly
established
the
question
of
title
documents arise and provision of Section
23 for return of plaint would not be
attracted.

Petition dismissed. (Para 6, 7, 13, 14)

Case laws discussed: -

1.Budhumal Versus Mahabir Prasad and others
( 1988) k4 SCC 199

2.Pratap Singh Versus IX ADJ, Fatehpur and
others 2000 (3) A.W.c. 1995

3.Shri Kant Trivedi Vesus Vijay Rani Tandaon
and another

4.Jugal Kishore Versus The IInd A.D.J., Jalaun
at Orai and other 1984 (2) A.R.C. 165

5.Ashok Kumar Gumbar and another Versus
Waqf Khudaband Tala Mau suma SCC Revision
no. 68/2019 /decided 24-05-2019

6.Shalini Shyam Shetty and another Versus
Rajendra Shankar Patil (2010) 8 SCC 329

7.Radhey Shyam and another Versus Chhabi
Nath and others (2015) 5 SCC 423 (E-2)

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava J.)

1. Heard Sri Manish Chandra
Tiwari, learned counsel for the petitioner.

2. The present petition seeks to
challenge the order dated 31.01.2018
passed by the Civil Judge (Senior
Division) F.T.C. Jaunpur in SCC Suit No.
03/2009 (Om Prakash Vs. Asharam)
whereby the application (Application No.
107-Ga) filed by the petitioner under
Section 23 of the Provincial Small Causes
Courts Act, 1887, (hereinafter referred to
as 'the Act') has been rejected. The
petitioner also seeks to challenge the