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Second Appeals Nos. 409 and 410 of 1979, decided on 1st October, 1986.

‑‑‑S. 100 & O. VI, R. 17‑‑Amendment of plaint‑‑Concurrent findings of Courts below‑‑Appellate jurisdiction, exercise of‑‑Courts below by giving cogent reasons concurrently dismissed application for amendment of plaint moved by appellant after about seven years of filing of original suit‑‑High Court in exercise of appellate jurisdiction upheld concurrent findings of Courts below in appellate jurisdiction.

Hyder Raza Naqvi for Appellant.

Rehmat Elahi for Respondent.

Date of hearing: 10th August, 1986.

This appeal and Appeal No. 410 of 1979 are against the single judgment and decree, dated 30‑7‑1979 passed in two Civil Appeals Nos. 26 of 1978 and 28 of 1978.

These appeals arise out of a dispute in respect of a residential house bearing C.S. No. 3034/35 situated in Shahi Bazar Sukkur. The appellant was an auction purchaser of this house from the Settlement Authority in an open auction for a consideration of Rs.10,000. Out of this amount a sum of Rs.1,401 was adjusted towards payment through appellant's compensation book leaving a balance of Rs.9,599 to be paid later.

2. By an agreement, dated 14th December, 1967 the appellant agreed to sell this house to the respondent for a consideration of Rs.18,000. The balance due to the Settlement Authority was also payable by the purchaser under this agreement. A sum of Rs.500 was paid in advance to the appellant at the time of execution of the agreement and another sum of Rs.10,000 was to be paid by the purchaser after approval of the agreement by the Settlement Authority and the final payment of Rs.7,500 was payable by the purchaser to the appellant after the P.T.D. had been issued in favour of the purchaser by the Settlement Authority.

3. It is admitted position that two instalments in the sum of Rs.1,250 and 1,150 have so far been paid by the respondent to the appellant together with the advance of Rs.500 which was paid at the time of the agreement; total payment to the respondent would thus be Rs.2,900.

There is no dispute between the parties that this amount has been received by the appellant. The controversy and dispute between the parties is on a short question namely, whether the balance due to the Settlement Authority was separately payable by the respondent, as alleged by the appellant or the sum of Rs.18,000 was inclusive of this amount.

4. The parties started with this dispute and two suits came to be filed in the Court of the Senior Civil Judge, Sukkur. Suit No. 356 of 1970 was filed by the appellant for the recovery of Rs.15,100 being the balance of the consideration of the house and Suit No. 255 of 1969 was filed by the respondent against the appellant for recovery of possession. Both the parties have filed separate agreement in support of their pleas. The appellants have filed an agreement, dated 14‑12‑1967 (Exh.47/C) and according to this agreement, the balance of the auction purchase money was to be paid by the respondent. The respondent on his part has also filed an agreement, dated 14‑12‑1967 (Exh.63/E) which shows that he was liable to pay only Rs.18,000 under the agreement and after discharging the liability of the Settlement Authority, the balance due to the appellant was only a sum of Rs.5,501 and not Rs.15,100 as claimed by the plaintiff in her Suit No. 356 of 1970. Both these suits arising out of the same cause of action, were tried and it would do well to produce the main issues in the two suits in order to highlight the controversy between the parties. Issue No.l in Suit No. 255 of 1969 was as under:‑

"(1) Whether the balance of transfer price and their public dues were to be paid by the plaintiff on his own behalf or the same was to be deducted from the agreed consideration "

Issue No. 2 in Suit No. 356 of 1970 was as under:‑--

"(2) Whether the balance of transfer price and other Government dues were to be paid by the defendant on his own behalf or the same was liable to be deducted from the agreed consideration "

5. It would be evident that the main contest between the parties was regarding the liability of payment of the auction money to the Settlement Authority. I may state at once that nothing turns on other issues which were framed in the two suits and it is not necessary to say anything about them. These two suits were heard together. Parties led evidence and the suits were fixed for hearing of arguments by the Court. It is not clear from the record whether these arguments had concluded. Enough to say that before judgment was announced an important event intervened and that has how become the focal point in the case.

6. On 24‑3‑1977 the appellant moved an application under Order VI, Rule 17, C.P.C. seeking permission to amend the plaint to claim the following relief:‑--

"That a decree in the sum of Rs.85,000 (Rs. eighty‑five thousand) which is the market value of the suit property with interest thereon be passed in the favour of the plaintiff or in the alternative the plaintiff may be allowed to rescind the contract and agreement of sale cancelled."

This application was dismissed on 7‑5‑1977 by the leaned Civil Judge on the following considerations:‑--

"(1) That the. application for such an amendment was too belated having been moved after seven years of the filing of the original suit.

(2) That the plaintiff cannot be allowed to raise claim from Rs.15,100 to Rs.85,000 merely because she had not been able to get the money according to the schedule prescribed. The inflation would not entitle here to change the complexion of the suit because the delay in disposal of the suit which was, no doubt, filed in 1967, was not the responsibility of the respondent /defendant.

(3) That in its very nature the amendment would change the whole complexion of the suit and the relief claimed and this cannot be done under Order VI, Rule 17, C.P.C."

7. Revision No. 8 of 1977 was filed against this order, dated 7‑5‑1977. This revision was also dismissed on more or less the same ground by a judgment, dated 30th October, 1977. No further steps were taken by the appellant and the matter closed here, as far as her grievance for a raised claim is concerned.

8. After the dismissal of this revision by the IIIrd Additional District Judge, Sukkur, the learned Senior Civil Judge proceeded to pass a decree in Suits Nos. 255 of 1969 and 356 of 1970. By judgment, dated 30‑8‑1978 the learned Senior Civil Judge decreed the Suit No. 356 of 1970 decreeing full claim of Rs.15,100 in favour of the plaintiff to be paid by the defendant/ respondent. So far Suit No. 255 of 1969 is concerned, the learned Judge decreed the suit for possession but only subject to the payment of Rs.15,100 as claimed by the appellant in her Suit No. 356 of 1970. The agreement Exh.47/C which was filed by the respondent was held to be forged and his plea that the consideration of Rs.18,000 was inclusive of the dues of the Settlement Authority, was rejected.

9. The respondent /defendant did not file any appeal against this decree. The appellant, however, filed two appeals being Civil Appeals Nos. 26 of 1978 and 28 of 1978. Both these appeals were heard by the learned IInd Additional District Judge, Sukkur and were dismissed by a single judgment, dated 30‑7‑1979.

10. The present two appeals have been filed against the judgment. I have heard the learned counsel for the appellant as well as for the respondent. The learned counsel for the respondent has argued that he is willing to abide by the decree passed in the two suits and is willing to pay the amount of Rs.15,100 with interest as decreed by the learned Civil Judge. The appellant, however, is not satisfied with the decree and the learned counsel for the appellant has argued that because the agreement, dated 12‑12‑1967 Exh.47/C has been held to be a forged document, the respondent was not entitled to a decree for possession. His suit for possession should have been dismissed by the learned Civil Judge.

11. The short answer to this contention is that the two suits were tried together and the decree granted to the respondent in Suit No. 255 of 1969 is in the nature of things a consequential relief of the prayers in appellant's own suit in which she herself has claimed Rs.15,100 being the balance of consideration remaining unpaid to the appellant. The version of the respondent to the extent of consideration has been rejected and the plea of the appellant has been fully accepted and her suit has been decreed.

12. Faced with this situation, the learned counsel turned to argue that the decree in the two suits, though sustainable, should be changed and the case should be remanded to the trial Court with the direction that her application under Order VI, Rule 17, C.P.C. should be allowed and a re‑trial should be held on the basis of the amended plaint which would mean either cancellation of the agreement or raising the claim in the suit from Rs.15,100 to Rs.85,000.

I am afraid this may be too late in the day to re‑open the whole thing again and reach a point which has already been left behind. The prayer for amendment was examined at the level of the trial Court and was held to be not sustainable. This view was confirmed by the appellate Court in the judgment, dated 30‑10‑1977 against which no further remedies were pursued.

I agree with the concurrent views of the two Courts below and', with the reasonings given in the original as well as in the appellate' judgment. As rightly held by the learned 1st Appellate Court that the fate of the plea for amendment was foreclosed by the passing of the order in Civil Revision No.8 of 1977 on the amendment application. The revisional order has held the field since 30‑10‑1977 and remains undisturbed. It would be too much to go behind this order and allow the amendment necessitating a totally fresh trial on new facts. The learned First Appellate Court has rightly held that:‑----

"Since the amendment was not allowed for the prayer sought by the appellant, hence at this stage when all reliefs claimed by the appellant have been decreed, the question of claiming benefit under Doctrine of Frustration does not arise at all."

I may also add that to allow such an amendment would also amount to changing the terms of the agreement between the parties and unilaterally substituting additional obligations to be performed by the respondent by making him pay Rs.85,000 for the property which the appellant, according to her own version she had agreed to sell for Rs.18,000.

There is no merit in the two appeals and, therefore, they are dismissed with cost.

H.B.T. Appeals dismissed.

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