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MOON LIGHT BUILDERS AND DEVELOPERS LIMIT versus JAMNA DEVI & ANR

High Court of Punjab and Haryana, Chandigarh

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Moon Light Builders and Developers Limit v. Jamna Devi & Anr - CR-4874-2003 [2006] RD-P&H 2603 (25 April 2006)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Civil Revision No.4874 of 2003

Date of Decision: 3.05.2006

Parties Name

Moon Light Builders and Developers Limited Petitioner

versus

Jamna Devi and another

Respondents

CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH
Present: Shri Ashish Chopra, Advocate for the petitioner Shri Arun Jain, Advocate

Shri J.S.Yadav, Advocate

JUDGMENT

This revision petition has been filed against order dated 28.8.2003, vide which, application of the respondents under Order 6 Rule 17 CPC was allowed in a pending appeal. It is apparent from the records that on the basis of agreement to sell dated 4.7.1989, the petitioner filed a suit for specific performance, which was decreed on 27.11.1999. Appeal was filed on 3.1.2000. During pendency of that appeal, on 16.3.2003, respondents moved an application for amendment of their written statement, to say that land, in dispute, had already been sold by the petitioners to one company named as M/s Sunni Billa Cooperative House Building Society Ltd., as such, the petitioners had ceased to have any interest in the property and the suit filed by them was not competent. It was mentioned in the application that the writing to that effect was incorporated on backside of Civil Revision No.4874 of 2003 - 2 -

the agreement to sell Ex.P5. It has further been stated in the application, that as the land, in dispute, was acquired by the State of Haryana, the agreement to sell stood frustrated and the sale deed cannot be executed, as such, the suit is liable to be dismissed. It was further averred in the application that at the instance of the petitioners, the respondents have entered into a collaboration agreement dated 21.7.2000 with Ms/ Prachin Krishi Udyog Ltd., to develop the land in question, as such, the petitioners are not entitled to claim specific performance in their favour. After hearing the parties, application was allowed.

This Court feels that while granting prayer for amendment, the Court below has committed an error in law. It is not in dispute that the agreement to sell was executed on 4.7.1989. Suit was filed thereafter for specific performance and during those proceedings, agreement to sell was brought on record as Ex.P5. Alleged writing by the petitioner existed on backside of that agreement. It cannot be presumed that the said writing was not within the notice of the respondents when document was brought on record. Furthermore the matter regarding acquisition by the State of Haryana of the land in dispute, was very much within knowledge of the respondents. They even raised this question before the trial Court and a specific finding in that regard was given in the judgment dated 27.11.1999.

Further fact that the respondents had entered into a collaboration agreement with Ms/ Prachin Krishi Udyog Ltd, cannot be made a ground to allow them to amend their written statement after more than 13 years of filing of the suit. The Court below has not given any finding as to why it be presumed that the facts, which the respondents now intended to incorporate in their written statement, were not within their notice when trial was in progress.

After such a long delay, this Court feels that respondents were not entitled Civil Revision No.4874 of 2003 - 3 -

to amend their written statement and change entire structure and substance of their defence. A right has accrued in favour of the petitioners, which cannot be taken away by allowing the respondents to amend their written statement, in the manner, as has been done in the present case.

In view of facts mentioned above, this revision petition is allowed and the order, under challenge, is set aside. Appellate Court below is directed to proceed further and decide the appeal, as per law.

Parties are directed to appear before the appellate Court below on 29.5.2006.

May 03, 2006 ( Jasbir Singh )

gk Judge


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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