IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CIVIL PROCEDURE. Judgment delivered on: I.A. No.12824/2010 in CS(OS) No.

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CIVIL PROCEDURE Judgment delivered on: I.A. No.12824/2010 in CS(OS) No.799/2010 J.L. Gugnani...Plaintiff Through Mr. Anil K. Kher, Sr. Adv. with Mr. Ankur Bansal and Mr. Rajesh Pandit, Advs. Versus KAMLENDER SINH... Defendant Through Mr. Manoj Kumar Singh, Adv. with Mr. Nilava Banerjee and Mr. Arpan Behl, Advs. CORAM: HON BLE MR JUSTICE MANMOHAN SINGH MANMOHAN SINGH, J. 1. By this order, I propose to decide the pending application being I.A. No.12824/2010 filed under Order VI, Rule 17 read with Section 151 CPC, by the plaintiff. CASE OF THE PLAINTIFF AS PER PLAINT 2. The plaintiff Mr. Gugnani had entered into an agreement to sell dated with the defendant Kamlendra Sinh for purchase of a property bearing No. A-9/20 admeasuring 1069 sq yards, situated at Vasant Vihar, New Delhi. The defendant agreed by virtue of the agreement, to sell his rights, in the above property to the plaintiff on a sale consideration of Rs.2,50,00,000/- (Rupees Two Crore Fifty Lac) out of which a sum of Rs.10,00,000/- (Rupees Ten Lac) were paid.

2 2.1 The plaintiff alleged that defendant is trying to breach the terms of the agreement to sell. The plaintiff averred in the plaint that he has paid a consideration of Rs.10,00,000/- (rupees ten lac) as part of total consideration or earnest money. The total consideration was fixed at Rs.2,50,00,000/- (two crores fifty thousand). Part consideration was paid to the defendants through a cheque bearing No drawn on Vijaya Bank, Barakhamba Branch. The same was acknowledged by the defendant. 2.2 It is stated in the plaint that the said property at Vasant Vihar, New Delhi, was belonging to Maharaja Surendra Sinhji of Alirajpur, Madhya Pradesh. The defendant became the owner of the said property by virtue of a sub-lease dated , executed by the Government Servant Servant s Cooperative House Building Society Ltd. The said lease was registered in the Office of the Sub-Registrar, New Delhi, vide document No.1078 in Additional Book No.1, Vol.2124 pages on Defendant was claiming the ownership of the said property on the basis of the Will dated of Late Sri Surendra Sinh, dated Surendra Sinh expired on By virtue of the Will dated the suit property was bequeathed in the name of defendant and the defendant was competent to sell the suit property. As per Will of late Surendra Sinh/testator desired that if the property is rented out or sold then the rental income/sale proceeds will have to be shared/distributed as per clauses 5.3 and 5.5 of the Will dated As per agreement dated the balance amount would be payable in fixed mode. Rs.1,15,00,000/- was to be paid on grant of probate by High Court of Madhya Pradesh, Indore Bench. Remaining amount of Rs.1 crore was to be paid at the time of execution/registration of the sale deed in favour of the buyer or his nominee. 2.6 By virtue of the agreement to sell dated the defendant undertook to take all necessary steps for obtaining the probate/letter of administration etc. The said clauses of the agreement are being reproduced herein below for the sake of immediate reference: Article III 3.01 The Seller shall make every effort to ensure that this agreement is completed

3 towards the logical and i.e. upto the execution of document of conveyance and shall take necessary steps to procure all possible certificates, grants, probate, letter of administration or sanctions required for the same The seller shall make available to Buyer all papers, reports, surveys, studies and other information which seller may have in his possession and which may assist Buyer in connection with the proof of Will and or the Probate case Unless and until the seller is prevented by complete frustration, the seller shall try to effectuate this agreement. 2.7 By virtue of clause 2.03 the plaintiff also agreed to pay in addition to the settled consideration to (i) Jyoti Rathore (ii) Thakur Rampratap Sinhji (iii) Kumar Motisinhji. By virtue of this clause, it was agreed by the plaintiff and the proportionate amount of settled sale consideration will be paid to these persons (in accordance with clause 5.5 of the Will dated ). As per plaintiff, in other words, the plaintiff undertook to discharge the liability of defendant which was imposed by clause 5.5 of the Will dated The case of the plaintiff is that the plaintiff was compelled to file the suit in reference, as the defendant turned dishonest and sent a letter dated making false allegations and giving cause to the plaintiff to believe that the defendant was attempting to wriggle out of his contractual obligations. 4. DEFENDANT S CASE AS PER WRITTEN STATEMENT 4.1 The defendant in the written statement stated that an agreement to sell dated was executed between them after sometime the plaintiff persuaded the defendant to cancel the said agreement, as the plaintiff was facing some financial crunches and needed some money. The plaintiff also asked for some loan to the defendant and hence the deal could not be completed between them. The agreement was cancelled mutually on The defendant states that, he got involved into many court cases in Madhya Pradesh and as well as in Delhi. Plaintiff approached defendant for some friendly loan and in return the plaintiff promised and assured that defendant property would be managed and also promised to mutate the said

4 property at Vasant Vihar. The plaintiff also assured that the property taxes would be paid at the concerned department time to time and the defendant need not worry about anything. Defendant gave a loan of Rs. 40,00,000/- to the plaintiff through cheque no dated The defendant alleges that plaintiff portrayed that all the litigation would end in 3-4 years. The plaintiff would pay taxes regularly and for that he would require the original perpetual lease deed dated in favour of Surender Sinhji and the original Will dated Hence, the plaintiff willfully induced the defendant to hand over the original documents and still is in illegal possession of the same. 4.4 After coming to know of the true evil intention of the plaintiff, defendant requested plaintiff to hand over the original documents. But even after persuasion the plaintiff did not hand over the original documents. Two letters dated was sent by the defendants asking to return the original documents. 5. During the pendency of the suit proceedings, the plaintiff has now filed the abovementioned application for amendment of the plaint. 6. It is stated by the plaintiff that in terms of the agreement to sell that upon grant of probate in the proceedings being CS(OS) No.1/1998 by the High Court of Madhya Pradesh, Indore Bench in respect of the Will dated left behind by late Sh. Surendra Sinh, the defendant is required to get the said property mutated in his name and also perform various other obligations, which the defendant is not completing despite notice from the plaintiff. The plaintiff, therefore, wishes to make appropriate pleadings, which became necessary in view of events that had taken place subsequent to the filing of the suit in reference, to seek additional reliefs and also incorporate the relevant pleadings in respect thereof. Therefore, consequential amendments are necessitated, the details are given in paragraph 9 of the application. 7. The plaintiff submits that to fully and completely adjudicate upon all the disputes and issues that have arisen between the plaintiff and the defendant, the plaintiff wishes to bring on record these later events, developments and facts and also elaborate on the submissions made in the plaint, rectify the typographical errors and inadvertent mistakes and also delete and/or amend the pleadings.

5 8. The plaintiff submits that the amendments sought by the plaintiff to the suit are bonafide and are necessitated because of the subsequent facts and developments that have come to the knowledge of the plaintiff in respect of issues, which are subject matter of adjudication before this court in the above suit. It is further submitted by the plaintiff that the above amendments sought by the plaintiff do not change the nature of the reliefs being sought by the plaintiff and no prejudice would be caused to the defendant if the above amendments are allowed as these amendments are being sought to bring on the facts and events, which are already within the knowledge of the defendant. 9. The details mentioned in para 9 of the application for amendment are given as under: 9.1 That as per agreements signed and the undertaking arrived at between the parties, the plaintiff paid substantial amount of consideration to one Mrs. Jyoti Rathore, who claimed to be a beneficiary to the property in reference and also part-consideration was payable in terms of agreement to sell executed between the parties. It is submitted that Mrs. Jyoti Rathore is, therefore, a necessary and property party to the present proceedings to fully and effectually decide upon the disputes. Accordingly, the plaintiff wishes to add the said Mrs. Jyoti Rathore as defendant No.2 to the Memo of Parties, whereas the defendant, Sh. Kamlendra Sinh is referred to as defendant No.1. Accordingly, the plaintiff be permitted to amend the Memo of Parties and the amended memo of parties be read as under : J.L. Gugnani S/o late Sh. Hari Chand Gugnani r/o 3-B, Nyaya Marg Chanakyapuri New Delhi Plaintiff Vs. 1. Kamlendra Sinh S/o late Maharaj Fatehsinjhi r/o Pratap Bhawan ALIRAJPUR District Jhabua Madhya Pradesh 2. Jyoti Rathore w/o Kamal Pratap Sinj Rathore

6 Ondwa House ALIRAJPUR District Jhabua Madhya Pradesh Defendants 9.2 That in view of impleadment of Mrs. Jyoti Rathore as defendant, the plaintiff wants to amend the plaint to refer the defendant at all places in the plaint, as defendant No.1. accordingly, the plaintiff be permitted to amend the plaint, at all places to refer the defendant as defendant No That the suit was filed by the plaintiff for specific performance and permanent injunction. The plaintiff wishes to seek a mandatory injunction to the defendant No.1. Accordingly, the plaintiff wishes to amend the heading of the suit and the amendment heading be read as under : SUIT FOR SPECIFIC PERFORMANCE, PERMANENT AND MANDATORY INJUNCTION 9.4 That the plaintiff wishes to bring on record the true and correct facts leading to the signing of the agreement to sell dated and the amount paid by the plaintiff towards consideration to the defendant and other beneficiaries and also state the facts in sequential order. Accordingly the plaintiff wishes to replace paragraph 4 to 15 of the plaint as under and the modified paragraphs be read as under : 4. That a leasehold property, bearing No.A-9/29, admeasuring 1069 sq. yards, situated in Vasant Vihar, New Delhi (hereinafter referred to as the said property ), was allotted on perpetual sub-lease to one Maharaja Surendra Sinh of Alirajpur, Madhya Pradesh, vide Perpetual sub-lease dated duly executed by the Government Servants Cooperative House Building Society Limited, which was duly registered with the Office of Sub- Registrar, New Delhi, vide document No.1078, in Addl. Book No.1, Volume No.2124, on pages 67 to 73 on That in or around October/November 2003, it has been brought to the notice and knowledge of the Plaintiff that the Defendant No.1 was intending to sell the said property. During the discussions/negotiations, it was stated by the Defendant No.1 that the sub-lessee, Shri Surendra Sinh, died on and the Defendant No.1 inherited the said property, by virtue of Will dated left behind by late Shri Surendra Sinh and that he had

7 already filed a petition for probate of the said Will and the same, numbered as MCC 329 of 196 (and later on numbered as C.S. No.1 of 1998) was pending before the High Court of Madhya Pradesh, Indore Bench. 6 That while making enquiries with regard to the title of the Defendant No.1 to the said property, it came to light that the Defendant No.2 herein had also made a claim to the said property, by relying upon a Will dated 28th March 1996 of late Shri Surendra Sinh and that she also filed an application for grant of letters of administration, being Probate Case No.50 of 1996 before this Court and that the said petition was also referred to the Indore Bench of the High Court of Madhya Pradesh and is being heard with the probate petition filed by the Defendant No.1 herein. 7. That by virtue of Will dated of late Shri Surendra Sinh, which was propounded and relied upon by the Defendant No.1, the Defendant No.2 and some other persons were to be given a share out of the total sale consideration, in case the Defendant No.1 wishes to sell the said property. 8. That in view of the above facts and circumstances, the Plaintiff held a joint meeting with the Defendant Nos.1 and 2 at Indore on 06th November 2003 and after extensive discussions it was agreed that both the Defendant were agreeable to sell their respective rights and interests in the said property and since court cases have been pending with regard to the respective claims of the Defendants, the Plaintiff can negotiate with both the Defendants and enter into separate Agreements. The terms agreed upon between the Plaintiff and the Defendants herein were duly recorded vide Purchase Agreement dated That pursuant to the terms agreed upon vide Purchase Agreement dated , the Plaintiff held separate negotiations with the Defendants and it was agreed as under: a) The Plaintiff would purchase the rights, title, interest and obligations of the Defendant no.1 in the said property and under Will dated for a total consideration of Rs.2,25,00,000/- and the terms and conditions agreed upon were duly recorded vide Purchase Agreement dated Against this Agreement, the Plaintiff paid a sum of Rs.10,00,000/- to the Defendant No.1, vide Bank Draft No dated drawn on Vijaya Bank, Barakhamba Road, New Delhi, which was duly acknowledged by him.

8 b) The Plaintiff would purchase the rights, title and interests of the Defendant No.2 under the Will dated or under Will dated , as the case may be, for a total consideration of Rs.1,85,00,000/-, on the terms and conditions that were duly recorded vide Agreement dated The Plaintiff paid a sum of Rs.10,00,000/- to the Defendant No.2 as earnest money at the time of signing this Agreement, vide Bank Draft No dated drawn on Vijaya Bank, New Delhi. 10. That thereafter the Parties have held discussions and negotiations with regard to finding an amicable solution or compromise to the cases pending with regard to grant of probate to the property left behind by late Shri Surendra Sinh. During these discussions and negotiations, the Plaintiff was asked to pay further consideration amount to the Defendants and/or to the beneficiaries named under the Will dated by late Shri Surendra Sinh, which the Plaintiff complied with to conclude the transaction expeditiously. 11. That accordingly it was agreed that the Defendant No.2 would relinquish all her claims in the said property, such that the probate petition being C.S. No.1 of 1998, filed by the Defendant No.1, is decreed and probate is granted to the Defendant No.1 herein. Upon such a broad settlement arrived at between the Parties, the Parties hereto have signed further Agreements as under: a) Plaintiff and the Defendant No.1 entered into an Agreement dated , whereby it was agreed that the Plaintiff shall pay the consideration to the Defendant No.1 at Rs.2,25,00,000/- and in addition the Plaintiff would also pay the amounts to the beneficiaries named in the Will dated left behind by late Shri Surendra Sinh and such consideration amount shall be settled by the Plaintiff with the respective beneficiaries and in the absence of such settlement, the Plaintiff shall pay to these beneficiaries at the rate(s) mentioned in the Will dated These terms were duly recorded vide Agreement to Sell dated signed between the Plaintiff and the Defendant No.1 and in confirmation thereof, the Plaintiff paid a sum of Rs.10,00,000/- to the Defendant No.1, vide Cheque No dated , drawn on Vijaya Bank, Barakhamba Road, New Delhi, which was duly accepted and encashed by the Defendant No.1. Vide said Agreement to Sell, the Plaintiff is required to

9 pay the balance consideration of Rs.2.15 crores to the Defendant No.1, as under: * Rs.1,15,00,000/- on grant of probate by the High Court at Indore; and * Balance Rs.1,00,00,000/- at the time of execution and registration of the sale deed of the said property in favour of the Plaintiff or his nominee before the Sub-Registrar. b) Thereafter, the Plaintiff also renegotiated the terms and entered into another Agreement dated with the Defendant No.2, whereby it was agreed that the Plaintiff shall pay Rs.1,85,00,000/- to the Defendant for what whatever rights accruable to her in the said property vide Will dated along with all improvements, hereditaments and appurtenances thereto. The balance consideration agreed to be paid in different installments, as provided in the said Agreement. 12. That it was also agreed amongst the Parties that the amount paid vide Agreements executed in November, 2003 would be appropriately adjusted against the consideration payable by the Plaintiff to the Defendants or to the beneficiaries. 13. That in confirmation of the above said agreement between the Parties and in part performance of the Agreement to Sell dated , the Defendant No.1 delivered the original Perpetual Sub-Lease of the said property; death certificate of late Shri Surendra Sinh and original death certificate of Princess Rohini Kumari to the Plaintiff, vide letter dated That the plaintiff has thus paid to the defendants and/or to the beneficiaries a sum of Rs.71,00,000/- as under : i) Rs.20,00,000/- was paid to defendant No.1 as under : * Rs.10,00,000/- vide cheque No dated drawn on Vijaya Bank; * Rs.10,00,000/- vide Demand Draft No dated , issued by Vijaya Bank. ii) Rs.43,00,000/- was paid to defendant no.2, as under :

10 Cheque/DD No. Date Amount/Rs. DD / ,00,000 Ch ,00,000 Ch ,00,000 Ch ,00,000 Ch ,00,000 Cash 700,000 iii) Rs.8,00,000/- was paid to Mr. Ram Pratap Singh, as under : Cheque/DD No. Date Amount/Rs. Ch ,00,000 Ch ,00,000 Ch ,00,000 The cheques/demand drafts mentioned above were drawn on, or issued by, Vijaya Bank. 15. That in view of Plaintiff paying Rs.43,00,000/- to the Defendant No.2, it was agreed that the next installment of Rs.50,00,000/- would be paid against grant of probate and mutation of the property in the name of Defendant No.1 and against filing an application by Defendant No.1 for conversion of leasehold system into freehold. 9.5 That in view of facts stated in Clause 9.5, the Plaintiff wishes to modify Paragraph 22 of the Plaint and the amended Paragraph 22 of the Plaint be read as under: 22) That by virtue of Clause 2.03 the Plaintiff also agreed to pay in addition to the settled consideration to (i) Jyoti Rathore (ii) Thakur Rampratap Sinhji (ii) Kumar Motisinhji. As stated above, the Plaintiff negotiated with these beneficiaries and agreed to pay the consideration amount, in the manner stated in the preceding paragraphs. 9.6 That with respect to probate petition pending before the High Court of Madhya Pradesh, Bench at Indore, the Petitioner wants to elaborate the factual position and accordingly, the Plaintiff wishes to amend Para 26 of the Plaint and the amended Paragraph be read as under:

11 26) That the Agreement to Sell dated signed between the Plaintiff and the Defendant No.1 requires the Plaintiff to pay the next installment of Rs.1,15,00,000/- on grant of probate by the Hon ble High Court of Madhya Pradesh, Indore Bench to the Defendant No.1. On the basis of the above said Agreements, the Plaintiff has performed all his obligations till date and the remaining obligations with respect to payment of part of the remaining consideration were to commence only after the Defendant No.1 obtained the order of probate with respect to the Will dated of late Shri Surendra Sinh. The Defendants, however, delayed the proceedings before the Hon ble High Court of Madhya Pradesh at Indore Bench, due to various reasons including non-payment of property taxes relating to the said property etc. 9.7 That the Plaintiff wants to amend Para 29 of the Plaint to rectify a typographical error and accordingly modified Para 29 of the Plaint be read as under: 29) That the plaintiff is in a lawful possession of the above said documents, which were handed over to the Plaintiff in part performance of the Agreement to Sell dated That Paragraphs 32 and 33 of the Plaint deal with the Proceedings pending before the Madhya Pradesh High court, Indore Bench, in CS No.1 of As submitted above the said proceedings have since been decided by granting a decree in favour of the Defendant No.1. Accordingly, the Plaintiff wants to amend the paragraph Nos. 32 to 33 and the amended paragraphs be read as under: 32 That by the first week of April 2010, appropriate steps were taken by the defendants with regard to filing of no objection by the defendant No.2 for grant of probate to the defendant No.1 in terms of petition filed by him before the High Court of Madhya Pradesh, Bench at Indore and appropriate orders/judgments was still to be passed in the said proceedings bearing CS No.1 of That in view of the above, paragraph No.34 be read as para 33 and the amended paragraph 33 be read as under :

12 33 It is submitted that the plaintiff has duly fulfilled his obligations arising out of the agreement to sell dated and has not defied the said terms in any manner. It has been clearly stipulated in Clause No. 1 of the agreement to sell dated that the balance sale consideration is to be paid only after the grant of the probate by the High Court of Madhya Pradesh Bench at Indore. That stage had still not arisen because the Probate Case No.CS-1/98 was still to be adjudicated/decided by the High Court of Madhya Pradesh Bench at Indore That in view of renumbering, paragraph 35 and 36 of the plaint be read as paragraph 34 an 35 of the amended plaint That to correct the typographical errors and to elucidate the facts in detail, the plaintiff wishes to amend para 37 to be read as para 36 and 37, and the amended paragraph 36 and 37 be read as under : 36. That when the probate proceedings pending before the High Court of Madhya Pradesh, Indore Bench were coming to an end, the defendant No.1 became dishonest, as is evident from his letter dated , whereby the defendant No.1 made false and frivolous allegations by alleging that he delivered the original will dated of late Sh. Surendra Sinh and that the plaintiff did not take any steps to return the same. It is pertinent to state that vide letter dated the plaintiff was given only the original perpetual sub lease and the original will was never given to the plaintiff. The defendant No.1 also made totally false and baseless allegations with regard to not taking case of all pending litigations on his behalf and for grant of necessary steps for grant of probate. 37. That it is pertinent to state under the agreement to sell dated , the plaintiff was not required to pursue any matter in Delhi with respect to the said property or in respect of grant of probate. In fact, the plaintiff did has best in having an understanding between the defendants with regard to the succession and on the basis of the terms agreed upon, the defendant No.2 agreed to relinquish her claims and have the probate granted to the defendant No.1 in terms of will dated , as has been duly recorded vide purchase agreement dated signed between the parties and in fact the probate petition proceeded in terms of the said understanding. It was, however, the defendant No.1, who dragged on the

13 matter by failing to pay the taxes and other dues to the Municipal Authorities and various other parties That in view of clarifications provided hereinabove, the plaintiff wishes to delete paragraphs 41 to 45 of the plaint and accordingly the plaintiff seeks leave to delete these paragraphs That plaintiff wishes to add the following additional paragraphs to the plaint to bring on record the events that have taken place subsequent to the filing of the above suit and the plaintiff be permitted to add the following paragraphs as paragraphs 41 to 45 of the amended plaint. 41. That it transpired that the defendant No.1 became dishonest and was attempting to sell the said property to some third parties for a hefty consideration, in total disregard to the terms of the agreement dated , as is evident from his letter dated , which incidentally coincided with the application filed/statement given by defendant No.2 thereby giving her no objection to the grant of probate to the defendant No.1 in respect of Will dated of late Sh. Surendra Sinh. In these circumstances, the plaintiff was left with no option but to initiate the present proceedings against the defendant No.1, before this Court, being CS(OS) No.799/2010, for specific performance and permanent injunction. It is submitted that the defendant No.1 duly appeared in the said suit No.799/2010 and has been well aware that the plaintiff has been and is still ready and willing to perform his part of the obligation to complete the sale transaction in terms of the agreement to sell dated However, though under an obligation to do so, the defendant No.1 did not communicate anything about the decision of the court in the probate petition pending before the High Court of Madhya Pradesh, Indore Bench. As such, the plaintiff made independent enquiries and it came to the notice of the plaintiff that the High Court at Indore has granted probate to the defendant No.1, in CS No.1 of 1998, vide judgment dated The plaintiff thus applied for certified copy of the said judgment and upon confirmation of grant of probate to the defendant No.1, though the defendant No.1 failed to inform the plaintiff about the said judgment, the plaintiff, vide his letter dated , addressed to the defendant No.1;

14 a) Sent the payment of Rs.1,15,00,000/- to the defendant No.1, vide cheque No dated , drawn on Vijaya Bank, in favour of the defendant No.1; b) Informed the plaintiff that the sum of Rs.51,00,000/- paid to the defendant No.2 and Mr. Ram Pratap Singh can be adjusted against the consideration payable to them; c) The plaintiff has performed his part of the obligation till date and has always been and is still ready and willing to perform remaining part of the obligations; and d) Requested the defendant No.1 to cooperate with the plaintiff in completing the transaction by having the said property mutated in his name in the records of Delhi Development Authority and inform the plaintiff, so that the plaintiff can initiate steps to have the leasehold rights in the said property converted to freehold, in terms of the agreement to sell. The defendant No.1 duly received the said letter and the part payment of Rs.1,15,00,000/- 43. That in addition to paying the balance consideration to the defendant No.1, the plaintiff will have to pay additional consideration to the defendant No.2 and the beneficiaries under the Will dated , which the plaintiff agrees and undertakes to pay to the respective parties, as and when the said payment becomes due and payable to them. 44. That the defendant No.1, who has since received the said letter, has returned it back and has thus refused to perform his part of the obligations under the said agreement to sell dated That seeing the past conduct of the defendant No.1, the plaintiff apprehends that the defendant No.1 has no intention to honour his contractual obligations by performing his part of obligations under the agreement to sell dated As such, the plaintiff is left with no option but to file the present proceedings to seek specific performance of the agreement to sell dated That the plaintiff wants to amend paragraph 47 of the plaint to elaborate the factual position and to bring on record the various obligations the defendant No.1 is required to perform to complete the sale transaction.

15 Accordingly, the plaintiff be granted leave to amend the paragraph 47 and the amended paragraph 47 be read as under : 47. It is submitted that as per the clause 8.01, the sale deed in respect of the property in question can be executed only after the grant of probate in the name of the defendant/after mutation/after conversion of the property into freehold. Therefore, the remaining terms of the agreement cannot be completed till the probate is granted in the name of defendant. Otherwise the plaintiff is always ready and willing to perform his part of the contract. To take forward and complete the sale transaction in terms of the said agreement to sell, the defendant No.1 is required to have the said property mutated in his name in the records of Delhi Development Authority and thereafter have the leasehold system of the property converted to freehold, for which the plaintiff will have to move appropriate application and deposit the requisite fee. Since the defendant No.1 is not coming forward, the plaintiff seeks a decree of mandatory injunction thereby requiring the defendant No.1 to perform these obligations leading to execution of the sale deed in favour of the plaintiff or his nominee, in terms of agreement to sell dated That the plaintiff wishes to place on record the breaches committed by the defendant No.1 and also to highlight the dishonest intentions of the defendant No.1 and accordingly the plaintiff be granted permission to amend paragraph 48 of the plaint and the amended paragraph 48 be read as under : 48. That the plaintiff has the reasons to believe that the defendant is trying to enter into some secret deal/secret arrangement with some builder, otherwise there is no reason/occasion for writing such kind of letter dated to the plaintiff. The defendant No.1 also did not come forward to perform his part of the obligations even after a letter was sent to the defendant No.1 together with a cheque of Rs.1.15 cores towards part consideration by the plaintiff, in part performance of his obligations under the agreement to sell dated That in view of subsequent events and additional cause of action arisen, the plaintiff wishes to amend the para 50 relating to cause of action and the amended paragraph 50 be read as under :

16 50. That the cause of action for filing the present suit has arisen in favour of the plaintiff and against the defendant. The cause of action first arose in the month of August 2004 when the terms were negotiated and agreement to sell dated was entered into between the plaintiff and the defendant and the plaintiff had also paid Rs.10,00,000/- (Rupees Ten Lac Only) to the defendant as Earnest Money out of the total agreed sale consideration of Rs.2,25,00,000/-. The cause of action also arose on account of the fact that on , the defendant also undertook/assured that after disposal of the probate case No.CS-1/98 after mutation and after conversion of property into freehold, the sale deed will be executed in the name of plaintiff. The cause of action also arisen on account of the fact that the defendant will take all necessary steps for obtaining the probate/letter of administration. That cause of action also arose when by the letter dated , the original lease deed and other documents (mentioned therein) were given to the plaintiff by the defendant through his attorney Major General M.S. Sandhu (Retd.). The cause of action on all such dates as and when the plaintiff enquired about the probate case and the defendant always conveyed that the said probate case pending in the High Court of Madhya Pradesh Bench at Indore is being contested vigorously by the defendant and the defendant also assured the plaintiff that as and when the probate case is decided/adjudicated, the necessary intimation will be given to the plaintiff and the needful will be done. That the cause of action to file a suit for specific performance of the case arose in favour of the plaintiff when the defendant No.1, instead of performing his part of the obligations, sent a letter dated making false and baseless allegations with a view to wriggle out of the contractual obligations and in an attempt to create third party interest or alienate the property in reference in violation of his contractual obligations. The cause of action also arose on when the plaintiff sent the part payment of Rs.1,15,00,000/- in part performing of his obligations and informed the defendant No.1 that he is ready and willing to perform his remaining obligations upon defendant No.1 getting his name mutated in the records of the DDA. The cause of action to file the suit for specific performance also arose on the date when the defendant No.1 received the said letter dated with part payment, but failed to respond to the same. The cause of action to seek specific performance of the agreement to sell is still continuing in favour of the plaintiff and against the defendant

17 No.1. The cause of action to seek a decree of mandatory injunction has arisen in favour of the plaintiff and against the defendant No.1 when the plaintiff called upon the defendant No.1, vide letter dated , to get the said property mutated in his name in the records of Delhi Development Authority and inform the plaintiff; but the defendant No.1 failed to respond and/or take any action in respect thereof till date. The cause of action is recurring and continuing unless and until the defendant performs his part of the contract under the agreement to sell dated executed between the parties and unless and until the defendant is not permanently restrained from entering into any deal/secret deal or arrangement with some builder/person and from creating 3rd party interest in favour of any other person except the plaintiff. The cause of action is continuing as the plaintiff is always ready and willing to perform his part of the contract. The cause of action is continuing as the defendant is trying to defy the agreement dated The cause of action is continuing as the defendant wrote letter dated with a dishonest intention That as submitted above the consideration payable to the other beneficiaries under the said agreement to sell was not taken into account while calculating the value for court fee and jurisdiction and also the plaintiff needs to pay the court fee for the additional relief of mandatory injunction. Accordingly, the plaintiff wishes to amend the paragraph 52 and the amended para be read as under : 52. That the plaintiff states that the agreement to sell dated , the plaintiff has agreed to pay Rs.2,25,00,000/- to the defendant no.1; Rs.22,50,000/- (being 10% of consideration) to one Thakur Rampratap Sinh of Kod; Rs.22,50,00,000/- to one Kumr Motisinh of Kathiwada; and Rs.1,85,00,000/- to the defendant No.2 herein. Thus the total consideration payable in respect of the sale transaction to the defendants and the beneficiaries named in the said agreement to sell comes to Rs.4,55,00,000/-. That the plaintiff values the present suit for purpose of court fee and jurisdiction as under: a) for decree of specific performance to direct the defendants to perform his

18 obligations under agreement to sell dated : Rs.4,55,00,000/- b) for decree of mandatory injunction to directions to defendant No.1 : Rs. 200/- c) for decree of permanent injunction to restrain defendant No.1 : Rs. 200/- The plaintiff is affixing appropriate court fee on the relief of specific performance. The value of suit for purpose of jurisdiction is Rs.4,55,00,400/ That the plaintiff wants to amend prayer clause by adding a new prayer relating to mandatory injunction and accordingly the plaintiff be permitted to add Clause II(a) to the prayer clause as under: II(a) pass a decree of mandatory injunction against the defendant No.1, thereby directing him to get the said property bearing No.A-9/29, plot of land admeasuring approx sq. yards and the building constructed thereon, situated at Vasant Vihar, New Delhi, mutated in his name in the records of the Delhi Development Authority and further to cooperate with the plaintiff in having the leasehold rights in the said property converted to freehold by signing the necessary application and other relevant documents etc. as may be required by Delhi Development Authority from time to time. 10. The plaintiff submits that according to Will dated by Late Surender Sinhji, the defendant was required to get the said property mutated in his name and do various other obligations. The defendant is not complying with the same despite notice from the plaintiff. As per agreement signed/ undertaking arrived at between the parties, Mrs. Jyoti Rathore who claims to be a beneficiary, hence the plaintiff wishes to implead Mrs. Jyoti Rathore as party to the suit, as defendant no. 2 and accordingly the cause title of the suit shall be amended by the plaintiff. The plaintiff wants to amend the heading of the suit as suit for specific performance permanent and mandatory injunction.

19 11. The plaintiff submits that no prejudice would be caused to the defendant if he above amendments are allowed by this Court as these amendments are being sought to bring on the facts and events, which are already within the knowledge of the defendant. Therefore, the plaintiff be granted the permission to place on record the amended plaint, incorporating the above amendments, court fee and the amended memo of parties. 12. Defendant has strongly opposed the prayer made in the application and submits that the plaintiff moved an application under Order 6 Rule 17 only after defendant have filed their written statement wherein the defendant has given true facts and real picture of the case. As per defendant, the plaintiff filed Order 6 Rule 17 CPC in order to change the facts of entire case by virtue of present application. The defendant submits that the plaintiff has taken totally inconsistent facts which were contained in earlier plaint. The amendment sought by the plaintiff if allowed would also prejudiced the case of the defendant. 13. Defendant denies that any agreement was ever entered or any consideration against the sale of suit property was given for the same. It is submitted that the amount of Rs. 71,00,000/- (as alleged by the plaintiff) is paid by the plaintiff. It is rather submitted by the defendant that a sum of Rs.40,00,000/- was given to the plaintiff which plaintiff has not returned till date and in return plaintiff is trying to usurp the property of the defendant. The alleged agreement as well as in the original plaint, as per the case of the plaintiff himself merely Rs. 10 lacs in advance payment was made by the plaintiff but in the present application, the plaintiff has totally changed his stand. 14. Defendant submits that as plaintiff omits to sue in respect of mandatory injunction and if he relinquishes any portion of his claim under Order II Rule 2 CPC he shall not be afterwards allowed to sue in that respect of that portion so omitted or relinquished. Sub-rule (3) further provides that a person entitled to one or more reliefs shall not afterwards sue for any reliefs so omitted. Hence defendant objects to the application moved by the plaintiff under Order 6 Rule 17 of the Code by adding the prayer of mandatory injunction. 15. The defendant submits that the plaintiff by this present application wants to implead Ms. Jyoti Rathore as defendant No.2 which is not possible as Ms. Jyoti Rathore is not the owner of the property and is also not a party to

20 the alleged agreement. Defendant No.1 is the sole owner is the property. Ms. Jyoti Rathore is merely one of the beneficiary of the Will dated Ms. Jyoti Rathore indeed had produced a Will but later on she recused herself from the probate proceeding before the Hon ble High Court of Madhya Pradesh. Jyoti Rathore has no locus to be a party in this present suit. The fact of grant of probate is already mentioned in the written statement. 16. The defendant has placed reliance on two judgments Revajeetu Builders & Developers Vs. Narayanaswamy (2009) 10 SCC 84 wherein it was held by the Supreme Court in our considered view, Order 6 Rule 17 is one of the important provisions of the CPC, but we have no hesitation in also observing that this is one of the most misused provision of the Code for dragging the proceedings indefinitely, particularly in the Indian courts which are otherwise heavily over burdened with the pending cases. All civil courts ordinarily have a long list of cases, therefore the Courts are compelled to grant long dates which causes delay in disposal of the cases. The applications for amendment lead to further delay in disposal of the cases. The defendant also relied on Kisandas Vs. Rachappa Vithoba reported in (1909) 33 Bom 644. It was observed by Batchelor J. that from the imperative character of the last sentence of the rule it seems to me clear that, at any stage of the proceedings, all amendments ought to be allowed which satisfy the two conditions (a) of not working in justice to the other side and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. 17. In nut-shell, by means of amendment, the plaintiff has broadly sought the following amendments : I a) The plaintiff claims that he paid to defendant a sum of Rs. 71,00,000/- however it was mentioned in the plaint that only Rs. 10,00,000/- was paid towards consideration or part payment. b) The plaintiff valued the suit at Rs. 2,25,00,000/- being agreed to pay the defendant. The plaintiff also submitted that plaintiff agreed to pay some additional consideration to the beneficiaries of the defendant. c) There are typographical errors in the plaint. At Page 37 the read should read as instead of At para 38 the duly should be read as duty d) The plaintiff wishes to delete the pleadings relating to the Probate Case baring CS 1/98 pending before the High Court Madhya Pradesh Indore

21 Bench. The plaintiff wishes to delete the superfluous pleadings and wishes to replace the same with the present status of the case. II i) The change made in para 5 of the plaint - around October-November 2003 to the notice and knowledge that the defendant was intending to sell the property. Sri Surendra Sinhji expired on and defendant no.1 inherited the property by virtue of Will dated and defendant no.1 filed a probate case before the High Court of Madhya Pradesh, Indore Bench. ii) Para 6- while making enquires with regard to title of Defendant no. 1 it came to light of the plaintiff that the defendant no.2 also claimed exclusive rights over the property relying upon a Will dated 28th March iii) Para 7- by virtue of the Will dated which was relied upon by defendant no.1, defendant no. 2 and some other persons were to be given a share out of the total sale consideration. iv) Para 8 plaintiff had joint a meeting with defendant no. 1 & 2 at Indore on 6th November After extensive meeting, it was agreed by both the parties, that both defendant could sell their respective rights and interest in the said property since court cases were pending. v) Para 9- apart from the above purchase agreement dated plaintiff held separate negotiations with defendants. They are:- a. Plaintiff would purchase rights, title, interest and obligations of defendant no. 1 for total consideration of Rs. 2, 25,00,000/- terms and conditions were recorded vide agreement dated Plaintiff paid a sum of Rs. 10,00,000/- vide Bank Draft No dated drawn on Vijaya Bank, Barakhamba Road. b. Plaintiff would purchase the share of defendant no.2 for a total consideration of Rs. 1,85,00,000/- which under Will dated Terms and considerations vide agreement dated Plaintiff paid 10lacs vide draft no dated drawn on Vijaya Bank. vi) Para 10- Parties held discussions and negotiations for amicable solution/compromise to case pending (probate case). Plaintiff asked to pay further consideration. vii) Para 11- it was agreed that defendant no.2 would relinquish all her rights in the said property. Probate case was decreed and probate granted to defendant no. 1. Parties further signed agreements. Plaintiff and defendant entered into agreement dated plaintiff shall pay consideration to defendant no. 1 Rs. 2,25,00,000/- and also pay in addition the beneficiaries named in the Will dated Plaintiff paid 10,00,000/- to defendant dated vide cheque no.

22 drawn on Vijaya Bank. Remaining amount to be paid of Rs. 1,15,00,000/- grant of probate by High Court, Indore Bench and balance of Rs. 1,00,00,000/- at the time of registration/ execution of sale deed of the said property in favour of the plaintiff. viii) Para 12- it was agreed that agreement dated November 2003 would be adjusted against consideration payable. ix) Para 13- defendant no.1 delivered original perpetual sub-lease of the said property. Death certificate of Sri Surendra Sinhji and Princess Rohini Kumari vide letter dated to the plaintiff. x) Para 14- payments made defendant/beneficiaries a sum of (i) Rs. 71,00,000/-. Rs. 20,00,000/- paid to defendant no. 1. Rs. 10,00,000/- by way of cheque no dated Rs. 10,00,000/- vide DD No dated (ii) Rs. 43,00,000 to defendant no.2 (iii) Rs. 8,00,000/-to Ram Pratap Sinhji xi) Para 15- plaintiff paid Rs. 43,00,000/- to defendant no.2 and it was agreed that next installment of Rs. 50,00,000/- would be paid against filing application by defendant no. 1 for conversion of the said property from leasehold to freehold. III It appears from the application that the plaintiff also wishes to bring on record the facts leading to the agreement to sell dated and the amount paid by plaintiff to the defendant/beneficiaries. Hence plaintiff wishes to replace para 4 to 15 of the plaint. Correction of facts in various paras of plaint i) Para 22- by virtue of Cl. 2.03, the plaintiff also agreed to pay in addition to the settled consideration to Mrs. Jyoti Rathore, Thakur Ram Pratap Sinhjiji and Kuamr Motinshinji. ii) Para 26- agreement to sell dated signed between plaintiff and defendant no.1, plaintiff requires to pay installments of Rs. 1,15,00,000/-. Apart from these mentioned paragraphs the plaintiff also seeks to amend para 29,32,33. iii) Para 32- the defendant took appropriate steps on April 2010 with regards to filing of no objection by defendant no. 2 for grant of probate in Probate Case No. 1/98. iv) Para 41 to 45 of the plaint is deleted and in its place following new paras have been added. * Para 41- defendant no. 1 was dishonest and was planning to sell the said property to some third party for a hefty consideration with disregard to the agreement dated The plaintiff was left with no option but to file

23 this instant suit CS (OS) No. 799 of 2010 for specific performance. Plaintiff states that he is still willing to perform all his obligations. * Para 42- the defendant did not inform plaintiff about the probate case. The plaintiff on enquiry that probate has been granted on favour of defendant no. 1 vide judgment dated Plaintiff applied for certified copy. Plaintiff through his letter dated addressed to the defendant requesting him to perform his contractual obligations and also enclosed along with that letter a cheque of Rs. 1,15,00,000/- vide cheque no dated * Para 43, 44 and 45 have been deleted. v) Para 47- the plaintiff wants to bring on record factual position the various obligations of defendant no. 1 as per cl Sale deed can only be executed only after grant of probate in name of defendant after mutation and conversion of the property to freehold. Hence remaining parts of the contract cannot be completed in obligation. vi) Defendant no. 1 is not coming forward to mutate the said property. Therefore plaintiff seeks decree of mandatory injunction against defendant no. 1 to perform all obligations. vii) Para 50- the cause of action arose on August 2004 when the terms were negotiated and agreement to sell dated was entered into between plaintiff and defendant. viii) Cause of action arose on account of the fact that on , defendant undertook/ assured that after disposal of the probate case mutation/conversion of the property would be done by him and sale deed will be executed in the name of plaintiff. Cause action arose when defendant undertook to obtain probate and Letter of Administration. Cause of action also arose on when letter dated and original lease deed and other documents were given by authority of defendant through his attorney Major General M.S. Sandhu (Retd). ix) Cause of action arose for suit for specific performance when defendant no. 1 sent a letter dated making false and baseless allegations. The plaintiff also states that cause of action also arose on 9th of June 2010 when plaintiff sent the part payment of Rs. 1,15,00,000/- and no reply was sent by defendant No The Supreme Court has laid down principles that while allowing or rejecting the application like whether the amendment like whether the amendment sought is imperative for proper and effective adjudication of the