2016 PLP 125 (YLRN)

O. VI, R. 17

Specific Relief Act (I of 1877), Ss. 12, 31 & 34

Suit for specific performance of agreement to sell

Amendment in the plaint

Rectification of agreement to sell

Scope

Plaintiff sought amendment in the plaint after adducing his evidence

Application for amendment in the plaint was dismissed concurrently

Validity

Plaintiff had sought to repudiate his own case set up in the plaint in the guise of an amendment

Plaintiff sought correction and rectification of agreement to sell which was beyond the scope and purview of O. VI, R. 17, C.P.C.

If proposed amendments were allowed then it would change the nature of cause of action

Order VI, R. 17, C.P.C. was designed to empower the courts to allow amendments in the pleadings and not to make rectification of instruments/ documents

No prayer had been made in the application under O. VI, R. 17, C.P.C. for rectification of agreement to sell and then for specific performance of the same

Nothing was available on record that disputed agreement to sell did not express intention of the parties correctly

Agreement in question could not be enforced unless same was first rectified and a prayer to this effect had been specifically made in the plaint

No material irregularity had been committed by the courts below while exercising jurisdiction vested in them

Both the courts below had rightly dismissed application for amendment in the plaint

Constitutional petition was dismissed in limine. [Paras. 10, 11, 12, 13 and 14 of the judgment] ORDER MAHMOOD AHMAD BHATTI, J.

Through this petition, Muhammad Akram, the petitioner has assailed the vires of the order dated 24.03.2015 and the judgment dated 04.06.2015 passed by the learned Civil Judge, Sheikhupura and an Additional District Judge, Sheikhupura, whereby an application moved by him seeking to incorporate certain amendments in the plaint was dismissed and a revision petition directed thereagainst was dismissed as well by the Revisional Court.

2. The facts leading up to the filing of this writ petition are that the petitioner instituted a suit for possession through specific performance, maintaining that Habib Ullah, predecessor-in-interest of the defendants/respondents entered into an agreement to sell dated 27.06.2011 with him in respect of land measuring 6 kanals, comprising Khewat No.14, Khatuni No.70084, situated in Mouza Bhullar Kay, Tehsil and District Sheikhupura for a consideration of Rs.9,20,000/-. It was further averred by him in the plaint that late Habib Ullah also agreed to sell him a house consisting of two rooms and a latrine built over 10 Marlas of land, situated in Mouza Rakh Damoun Aana, Tehsil and District Sheikhupura for a consideration of Rs.7,00,000/-. All in all, the vendor is alleged to have agreed to make a sale of the aforementioned properties for a consideration of Rs.16,20,000/-, out of which he allegedly received an amount of Rs.14,10,000/- as earnest money, while the balance amount was to be paid to him by 05.08.2011. The petitioner went on to state that Habib Ullah passed away, and was survived by the defendants/respondents, who refused to honour the commitments made by him, obliging the petitioner/plaintiff to institute the suit for specific performance.

3. The defendants/respondents entered appearance and filed written statement, controverting the pleas of the petitioner. It was specifically denied by them that late Habib Ullah entered into an agreement to sell with the petitioner. The receipt of earnest money by late Habib Ullah was also denied by them. In short, it was their stance that the alleged agreement to sell is a fake, forged and fabricated document and the suit was liable to be dismissed.

4. It goes without saying that the divergent pleading of the parties crystallized into the issues, and they were required to adduce evidence in support of their respective pleas. The petitioner examined as many as five witnesses and tendered the alleged agreement to sell as Exh.P.1.

5. On 10.03.2015, the petitioner filed an application under Order VI, Rule 17 read with section 151, C.P.C., coupled with sections 31 and 34, of the Specific Relief Act, 1877, seeking amendments to the plaint. Leaving aside the details of the amendments sought to be incorporated in the plaint, the petitioner intended to substitute land measuring 6 Kanals, situated in Mouza Bhathal for Mouza Bhullar Kay. In the same way, mutation No.787 was to be substituted for mutation No. 767 in paragraph No.1 of the plaint. Statedly, these errors had crept in Exh.P.1, the alleged agreement to sell due to some misunderstanding of the part of the composer of Exh.P.1.

6. The learned trial Court seized of the suit proceeded to dismiss the aforesaid application vide order dated 24.03.2015. The petitioner filed a revision petition to challenge the correctness and legality of the order dated 24.03.2015 but his efforts were not crowned with success. His petition was dismissed vide judgment dated 04.06.2015. The petitioner has filed this petition to call into question the vires of the aforesaid order and judgment passed by the learned Courts below.

7. In support of this petition, learned counsel for the petitioner contends that both the learned Courts below fell in serious error of law in dismissing the application of the petitioner, seeking to make amendments to the plaint, which were so essential to resolve the controversy in issue. According to him, the Courts of law are vested with ample authority to allow amendments to the pleadings at any stage of the proceedings. He has also read out sections 31 and 34, of the Specific Relief Act, 1877 to urge that the Court can rectify a document and pass a decree after its rectification. It is stridently argued by him that both the learned Courts below passed orders in a flippant, perfunctory and slipshod manner. As such they have failed to exercise the discretion vested in them, warranting the interference of this Court under section 115, C.P.C.

8. Arguments heard. Record perused.

9. I am unable to agree with the contentions raised by the learned counsel for the petitioner for the following reasons.

10. The suit of the petitioner rests on a purported agreement to sell dated 27.06.2011, which was allegedly made by late Habib Ullah with him. The suit was instituted on 14.07.2011. From a perusal of the plaint, it is painfully clear that the petitioner was alleging agreement with late Habib Ullah in respect of land measuring 6 kanals, situated in Mouza Bhullar Kay, Tehsil and District Sheikhupura for a consideration of Rs.9,20,000/-. Now he seeks to change this land with the one situated in Mouza Bhathal. Significantly, the defendants, who are the legal heirs of Habib Ullah had denied the execution of the alleged agreement to sell by him and also denied the receipt of earnest money by the alleged executant. Resultantly, issues were framed on 17.04.2013. Thereafter, the petitioner appeared as P.W.1. He reiterated the facts in his examination-in-chief, consistent with the averments made in the plaint. He prayed for the transfer of the land measuring 6 Kanals, situated in Mouza Bhullar Kay through a registered sale deed. Malik Fakhar Abbas, P.W.2 who claimed to be the marginal witness to the purported agreement to sell (Exh.P.1) also made a similar statement regarding the description of the suit land sought to be transferred to the plaintiff. Muhammad Latif, the other alleged marginal witness to Exh.P.1 who deposed as P.W.3 also corroborated the statements of P.W.1 and P.W.2 regarding the suit land. Rana Nafees was examined as P.W.4. He claimed to be the composer of Exh.P.1, the alleged agreement to sell. He testified that an extract from a Jamanbandi was delivered to him, on the basis whereof he composed Exh.P.1. It needs to be stressed that in the petition moved by the petitioner under Order VI, Rule 17, C.P.C., seeking to incorporate amendments in the plaint, it was maintained that due to some misconception of facts and oversight, the composer of Exh. P.1 had made a clerical mistake, but the deposition of the composer, Rana Nafees negates the assertion so made by the petitioner. When he and the alleged marginal witnesses to Exh. P.1 have consistently stated that the deal was struck regarding land measuring 6 kanals, situated in village Bhullar Kay, how could the blame be laid at the door of the composer? Now, when the petitioner has almost concluded his evidence, he is seeking to repudiate his own case set up in the plaint in the guise of an amendment. It the case of the petitioner is examined closely, he is aiming a seeking correction and rectification of Exh. P.1. Indubitably, thiE is beyond the scope and purview of Order VI, Rule 17, C.P.C. Moreover, if the amendments sought to be made are allowed, it would change the nature of the cause of action, if not the complexion of the suit. Therefore, the liberal approach adopted by the Courts to allow the parties to make amendments to the pleadings would not render any assistance to the petitioner in the peculiar facts and circumstances of the case. Needless to say, Order VI, Rule 17, C.P.C. was designed to empower the Courts to allow amendments to the pleadings and not to make rectification of the instruments/documents.

11. The reliance of the learned counsel for the petitioner upon the provisions of sections 31 and 34, of the Specific Relief Act, 1877 is misconceived. A bare look at the prayer made by the petitioner in the plaint shows that nowhere has it been prayed by him that the purported agreement to sell dated 27.06.2011 was to be first rectified and then their suit for specific performance be decreed accordingly. Incidentally, no such prayer has been made by him in the petition moved by him under Order VI, Rule 17, C.P.C. Furthermore, it has not been averred in the plaint that the disputed agreement to sell did not express the intention of the parties correctly and/or that it was manoeuvred by late Habib Ullah by perpetrating fraud upon the petitioner or that it resulted from a mutual mistake. On the other hand, he stated in his deposition as P.W.1 that the office of Nafees Jillani (P.W.4), composer of Exh. P.1 was adjacent to his own office and that he took late Habib Ullah to him, meaning thereby that Nafees Jillani enjoyed the confidence and trust of the petitioner. The very fact that the petitioner examined him as P.W.4 bears this out. Therefore, the question of his committing fraud upon the petitioner is simply beside the point. To his credit, the petitioner has not made any such allegation against him. However, he has maintained that the composer misconceived the facts that resulted in the error in the description of the suit land. This was described as a clerical mistake. If so, the case of the petitioner is not covered by the provisions of section 31, of the Specific Relief Act, 1877, which read as under: "When instrument may be rectified. When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing does not truly express their intention, either party, or his representative in interest, may institute a suit to have the instrument rectified; and if the Court finds it clearly proved that there has been fraud or mistake in framing the instrument, and ascertain the real intention of the parties in executing the same, the Court may in its discretion rectify the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value". "Specific enforcement of rectified contract. A contract in writing may be first rectified and then, if the plaintiff has so prayed in his plaint and the Court thinks fit, specifically enforced".

13. For what has been stated above, the learned Courts below did not commit any material irregularity in the exercise of the jurisdiction vested in them. They rightly dismissed the application moved by the petitioner under Order VI, Rule 17, C.P.C. read with sections 31 and 34 of the Specific Relief Act, 1877.

14. This petition being devoid of force is hereby dismissed in limine. ZC/M-282/L Petition dismissed.