SEHDEV SETH v. VIDYAWANTI SETH — 1974 DIGILAW 17 (DEL)

T. V. R. TATACHARI ( 1 ) THIS Civil Revision has been filed by Shri Sehdev Seth, defendant in Suit No. 624 of 1965, on the file of the Court of Shri S. C. Ahuja, Subordinate Judge, 1st Class, Delhi, against an order, dated March 2, 1972, passed by the learned Subordinate Judge allowing an amendment of the plaint prayed for by the plaintiff, Shrimati Vidya Wati Seth, under Order 6, Rule 17 of the Code of Civil Procedure. ( 2 ) SHRIMATI Vidya Wati Seth, widow of Shri Multani Ram Seth, filed the aforesaid suit for a declaration that she was the owner and in possession of plot No. 69, Road No. 42, measuring 533. 33 square yards. Class "c, situated in Punjabi Bagh, Delhi, and that Shri Sehdev Seth, defendant in the suit. had no interest in the said plot. ( 3 ) ACCORDING to the plaint filed in the suit, the plaintiff s husband, Shri Multani Ram Seth, was a displaced person from Lahore, and he settled at Delhi after the partition of the Country. He was duly registered as a displaced person at Delhi under Refugee Registration Certificate KAR 829 (l)-v on November 21. 1947. He became a member of the Refugee Co-operative Housing Society Limited, and the Society agreed to allot one plot in his name. Accordingly, plot No. 69, Road No. 42, measuring 533. 33 square yards. Class "c", was allotted to him by the Society. Shri Multani Ram Seth had given the name of the plaintiff as his nominee. Subsequently, on June 22, 1955, Multani Ram Seth died. The plaintiff thereupon made an application to the Society on July 30, 1955. informing it about the death of her husband and requesting that the share held by him be transferred in her name, being his nominee. The Society agreed to allot one Class "c" plot to the plaintiff as per an agreement, dated January 10, 1959, subject to the payment of the development charges and other call money as and when the same would be demanded. It was alleged that the plaintiff paid all the call money and other demands which were made from time to time by the Society and that she was, therefore, entitled to the execution of a sale deed in her favour by the Society in respect of the said plot. It was alleged that the plaintiff paid all the call money and other demands which were made from time to time by the Society and that she was, therefore, entitled to the execution of a sale deed in her favour by the Society in respect of the said plot. ( 4 ) THE plaintiff further alleged that she had to raise a loan for constructing a building on the aforesaid plot, that the defendant, her real eldest son, who was aware that she had to apply for a loan for the construction of a building on. the plot, told her that she should sign an application which he would present in the office and arrange for the loan, and that having full faith in the defendant and believing what he stated, signed a letter typed in English on April 1, 1962, which was read over to her by the defendant to be an application on her behalf for raising the loan. According to the plaint, the plaintiff had been making enquiries from the defendant as to what had happened to her loan application, but the latter had been putting her out saying that her loan application was yet under consideration. About a month prior to December 14, 1965, the date of the plaint, she made enquiries and was informed that the letter, dated April 1st which she had signed was in tact a letter for transferring the plot from her name to that of the defendant, and that the defendant, on the basis of the said letter, had managed to get a sale deed executed on June 7, 1962, by the Society in his name in respect of the plot in question. The plaintiff submitted that she was never informed by the defendant that the letter was a letter for transfer of the plot and the share held by her in that plot in the name of the defendant, that had she known the same she would never have signed the same, that her signatures were obtained by fraud/misrepresentation and concealment of real facts, and that she never intended to transfer the plot in favour of the defendant, and in. fact had nominated her other son, Jaidev Seth, as her nominee regarding the said plot. She asked the defendant to cancel the aforesaid sale deed and recognise her as the owner of the plot, but he refused to do so. fact had nominated her other son, Jaidev Seth, as her nominee regarding the said plot. She asked the defendant to cancel the aforesaid sale deed and recognise her as the owner of the plot, but he refused to do so. She thereupon filed the suit on December 14, 1965, for a declaration that she was in fact the owner and in possession of the plot in question, and that the defendant had no interest whatsoever in the same. It was stated in the plaint that the cause of action for the suit accrued on April 1, 1962, when the defendant obtained the letter of transfer under fraud and misrepresentation, and also on June 7, 1962, when the plot was transferred by the Society in favour of the defendant, and about a month prior to the filing of the suit when the defendant refused to recognise the plaintiff as the owner of the plot. ( 5 ) THE defendant, Sehdev Seth. filed a written statement on January 4, 1966. wherein besides taking objections regarding the merits, raised preliminary objections that he was in actual and physical possession of the suit plot and the plaintiff was not in possession of the same, that the suit for mere declaration without a prayer for possession was not mantainable in view of the provision in Section 34 of the Specific Relief Act, that the suit was barred by limitation under Articles 58 and 113 of the Limitation Act, and that the Refugee Co-operative Housing Society was a necessary party. Thereupon, the plaintiff filed an application. dated March 22. 1966, for an amendment of the plaint by adding the Refugee Co-operative Housing Society Limited as party to the suit. The said amendment was allowed, on April 6, 1966, and an amended plaint was filed on April 14. 1966, wherein the Society was impleaded as defendant 2. and Sehdev Seth was shown as defendant 1. In paragraph 11 of the attended plaint, the plaintiff alleged that the plot in question was lying vacant and, as the plaintiff was the true and real owner of the plot. she should be deemed in law to be in lawful possession of the plot, and that she was, therefore, entitled to file a suit only for a declaration. ( 6 ) ON July 21, 1966, defendant 1, Sehdev Seth. she should be deemed in law to be in lawful possession of the plot, and that she was, therefore, entitled to file a suit only for a declaration. ( 6 ) ON July 21, 1966, defendant 1, Sehdev Seth. filed a written statement in which he reiterated the same preliminary objections that the suit for mere declaration was not maintainable, and that the suit was barred by limitation. The Society, defendant 2, filed a written statement in which it was stated in paragraph 11 that the Society had no objection to deliver the possession of the plot to the lawful owner. ( 7 ) THE Court framed seven issues on August 22, 1966, both on the preliminary objections and on the merits. The parties adduced evidence, and only the statement of the plaintiff remained to be recorded. On October 9, 1967, the plaintiff applied for producing some additional oral evidence. But. by an order, dated November 27, 1967. the application was dismissed by the Court on the grounds that the witnesses whom the plaintiff wanted to examine were not material, and that the application was filed late. The plaintiff filed Civil Revision No. 24 of 1968, in the High Court against the said order. On January 25, 1968. the Civil Revision was allowed by S. N. Andley J. (as his Lordship then was), and the plaintiff was allowed to examine the witnesses on payment of costs. Accordingly, the plaintiff adduced her evidence, and the evidence of the plaintiff was closed on June 5, 1968. Defendant 1 then adduced his evidence, and the same was closed on May 2, 1970. The case was thereafter adjourned from time to time for arguments. On November 16. 1971, in the course of the arguments, the plaintiff s counsel requested for time to file an application for amendment of the plaint by adding a prayer for. possession of the property. The adjournment was granted. ( 8 ) THEN, on November 24, 1971, the plaintiff filed an application under Order 6, Rule 17 of the Code of Civil Procedure for amendment of the plaint. possession of the property. The adjournment was granted. ( 8 ) THEN, on November 24, 1971, the plaintiff filed an application under Order 6, Rule 17 of the Code of Civil Procedure for amendment of the plaint. In that application, reference was made to the statement in the written statement of the Society that it had no objection to deliver the possession of the plot to the lawful owner, and to the statement in the written statement of defendant 1 that he was in actual physical possession of the plot. It was submitted that in order to cut short the objection of defendant 1 that the suit was not maintainable, the plaintiff wanted to amend her plaint by praying for delivery of possession of the plot either from defendant 1 or from the Society, defendant 2, in the alternative. The application was opposed by defendant 1. But, the trial Court, by its order, dated March 16, 1972, allowed the amendment prayed for on payment of Rs. 50 as costs. It is against the said order that the present Civil Revision has been filed by defendant 1, Sehdev Seth. ( 9 ) ORDER 6, Rule 17 of the Code of Civil Procedure empowers a Court to allow amendments of pleadings. While Order 6, Rule 16 deals with amendments which a party desires to be made in his opponent s pleading Order 6, Rule 17 deals with amendment which a party desires to make in his own pleading. Rule 17 provides that the Court may at any stage of the. proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may "be necessary for the purpose of determining the real questions in controversy between the parties. ( 10 ) AS pointed out by the Privy Council in Charan Das v. Amir Khan, AIR 1921 PC 50, and by the Supreme Court of India in P. H. Patil v. K. S. Patil, AIR 1957 SC 363 (paragraph 9), the power to allow an amendment of pleadings under Order 6, Rule 17 of the Code of Civil Procedure is one within the discretion of the Court. The discretion has, however, to be exercised in accordance with certain principles which are well- settled. The discretion has, however, to be exercised in accordance with certain principles which are well- settled. One such principle is that as a general rule "a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new case or cause of action is barred" by limitation, vide A. K. Gupta and Sons Ltd. v. Damodar Valley Corporation, AIR 1967 SC 96 (paragraph 7 ). Mr. Makhija, learned counsel for the petitioner, relied on the said principle and argued that the amendment prayed for by the plaintiff in the present case ought not to have been allowed by the lower Court as it sought to set up a new cause of action and a new case. But, it has to be noted that the Supreme Court also pointed out in the aforesaid decision in the case of A. K. Gupta and Sons Ltd. (supra), that "where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendments will be allowed even after the expiry of the statutory period of limitation". and in that context, the Supreme Court explained the meaning of the expressions "new cause of action" and "new case". In that case, a contract of work contained a clause that in case of an increase of labour rate of more than 10% in any particular month, the proportionate increase in rate would be charged by the contractor firm. Subsequent to the making of the contract, there was an increase in the labour rate by 20%. The contractor firm claimed under the aforesaid clause that it was entitled to the whole amount of the increase, while the opposite party contended that the contractor was entitled to a part only. The contractor filed a suit for a declaration that on a proper interpretation of the clause in the contract it was entitled to an enhancement of 29% over the tendered rates. The trial Court decreed the suit accepting the contention of the contractor. The contractor filed a suit for a declaration that on a proper interpretation of the clause in the contract it was entitled to an enhancement of 29% over the tendered rates. The trial Court decreed the suit accepting the contention of the contractor. On appeal to the High Court, a plea that the suit for mere declaration was barred in view of the proviso to Section 42 of the Specific Relief Act, 1877 (Section 34 of the Specific Relief Act, 1963) which was raised but not pressed in the trial Court, was allowed to be raised and decided against the contractor. It appears that the contractor moved the High Court for leave to amend the plaint by adding an extra prayer for a decree for a sum of Rs. 65,000 or such other amount as may be found due on proper accounting. But, the High Court refused to permit the amendment, allowed the appeal, and dismissed the suit. On appeal by the contractor to the Supreme Court, it was decided by a majority that the High Court ought to have allowed the amendment. A. K. Sarkar, J. pointed out in paragraph 9 of the judgment of the majority that the expression "cause of action" in the context of amendment of a plaint does not mean "every fact which it is material to be proved to entitle the plaintiff to succeed", but only means "a new claim made on a new basis constituted by new facts", and that the words "new case" mean "new set of ideas". The majority held that in that case the amendment sought "to introduce a claim based on the same cause of action, that is, the contract", and that it introduced no new case of facts as the facts on which the money claim sought to be added was based were not in dispute, and even the amount of the claim sought to be made by amendment was mentioned in the plaint in stating the valuation of the suit for the purpose of jurisdiction. It was observed that the opposite party "was fully aware that the ultimate object of the appellant (contractor) in filing the suit was to obtain the payment of that amount and that it was a case "in which the claim for money was in substance in the plaint from the beginning, though it had not formally been made. It was observed that the opposite party "was fully aware that the ultimate object of the appellant (contractor) in filing the suit was to obtain the payment of that amount and that it was a case "in which the claim for money was in substance in the plaint from the beginning, though it had not formally been made. " ( 11 ) IN the present case, can it be said that the amendment sought to introduce a new cause of action or a new case, and that defendant was taken by surprise? In my opinion, it cannot be so said. The suit was filed on the basis of title. It was the title, which was denied by defendant 1, that formed the cause of action on which the suit was based. The amendment prayingfor possession sought to introduce a claim based on the same cause of action, i. e. the title. Also, the amendment did not seek to introduce a new case. The plaintiff s claim to possession was in fact mentioned in the origi nal plaint as is apparent from the prayer for a declaration "that she was in fact the owner and in possession of the plot" in question. Defendant 1 was aware that the object of the plaintiff in filing the suit was to secure her title to and possession of the plot. It is thus a case in which the claim regarding possession was in substance in the plaint from the beginning of the suit. Defendant 1 could not. therefore, legitimately say that he was taken by surprise by the amendment. The prayer for possession was just a consequential relief, and was not a new case and much less an inconsistent case. ( 12 ) IT is true that the plaintiff claimed in the original plaint to have been in possession of the plot. But, as explained in paragraph 11 of the amended plaint, the said claim appears to have been made in the view that, as the true and real owner of the plot, she should be deemed in law to be in possession of the plot. If at all, the mistake in the frame of the suit appears to be more that of the learned counsel, and there is no ground for thinking that the plaintiff had not acted in good faith. If at all, the mistake in the frame of the suit appears to be more that of the learned counsel, and there is no ground for thinking that the plaintiff had not acted in good faith. In Sheopuian Rai v. Kesho Prasad Singh, AIR 1924 Pat 310, it was held that where a plaintiff has framed his suit bona fide believing that consequential relief is not open to him and that he is entitled to a declaration, the plaint may be allowed to be amended even in appeal by adding a prayer for possession. ( 13 ) IN this context, reference may usefully be made to the decision of the Privy Council in the case of Charan Das, AIR 1921 PC 50 (supra ). In that case, a suit was filed for a declaration of the right of pre-emption of the plaintiffs therein over a certain land. A prayer for. amendment of the plaint by claiming possession on pre-emption was refused by the trial court and the first appellate Court on the ground that the time had expired for bringing a suit to enforce the right. But, the amendment was allowed on second appeal to the Court of the Judicial Commissioner of the North-West Frontier Province, there being no ground for suspecting that the plaintiffs had not acted in good faith. The learned Judicial Commissioner observed that "however defective the frame of the suit may be, the plaintiffs object was to pre-empt the land; their cause of action was one and the same whether they sued for possession or not". On further appeal, the Privy Council agreed with the said observation and affirmed the decision of the Judicial Commissioner. The Privy Council held as under: "where the plaintiffs, through some clumsy blundering, attempted to assert rights that they undoubtedly possessed under the statute in a form which the statute did not permit, they should be at liberty to express their intention in a plainer and less ambiguous manner, and to amend the plaint so as to express the rights which it has been really their intention all along to establish, although the amendment of the plaint is sought to be made at a time when the suit itself if instituted then would be time-barred. And though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are out-weighed by the special circumstances of the case. "the said decision of the Privy Council was applied by the Supreme Court of India to the facts before them in P H. Patil s case, AIR 1957 SC 363 (supra) (vide paragraph 9 of the judgment of the Supreme Court ). ( 14 ) REFERENCE may also be made to the decision of the High Court of Andhra Pradesh in Suryanarayana Rao v. Veera Rajamma, AIR 1964 Andh Pra 223 (FB ). In that case, a suit for declaration of title simpliciter was filed, although the plaintiff was admittedly not in possession of the suit property in respect of which the title was claimed. The Full Bench held that the declaration prayed for could not be made in view of the provision in Section 42 of the Specific Relief Act, and then observed (vide paragraph 5 of the judgment at page 226) that in such cases an, opportunity should always be given to the plaintiff to make an amendment of the plaint by adding a prayer for the relief of possession, as it advances the cause and subserves the interests of justice, ( 15 ) SIMILARLY, in Maruti v. Ranganath, AIR 1955 Hyd 1 (FB), it was held that where the plaintiff sought permission merely to add a prayer for possession which did not alter the cause of action or change the essential nature of the suit, and that such an amendment should be allowed when its refusal would drive the plaintiff to a fresh suit. ( 16 ) THUS, it cannot be said that by asking by amendment for the relief of possession of the plot in respect of which the plaintiff had asked for a declaration of his title in the original plaint, the plaintiff sought to set up a new cause of action or a new case or an inconsistent case. ( 16 ) THUS, it cannot be said that by asking by amendment for the relief of possession of the plot in respect of which the plaintiff had asked for a declaration of his title in the original plaint, the plaintiff sought to set up a new cause of action or a new case or an inconsistent case. It has also to be noted that the period of limitation of 12 years under Article 65 of the Limitation Act for a suit for possession of the plot had not expired, and a suit for possession had not, therefore, become barred by November 24, 1971, the date of the application for amendment. ( 17 ) MR. Makhija next contended that the application for amendment of the plaint was filed at a late stage about five years after the institution of the suit, and that the amendment should not, therefore, have been allowed. The learned counsel pointedout that the suit was filed on December 14, 1965 that the written statement of defendant 1 was filed on January 4, 1966, in which he alleged that he was in actual physical possession of the suit plot and not the plaintiff, that the plaintiff should have, therefore, taken steps to amend the plaint at least at that stage, that the plaintiff asked for amendment of the plaint and amended the same on March 27, 1966, but did not take care to amend the plaint by adding the prayer for possession, that the plaintiff had stated in her statement that she was not in possession of the property and yet closed her evidence on June 5, 1968, that she could have prayed for an amendment of the plaint at least at that stage, but chose to file the application for amendment about three years thereafter, and that she was thus extremely negligent in not moving the application for amendment earllier. ( 18 ) THIS contention has no force. Rule 17 itself provides that amendment may be allowed at any stage of the proceedings. In Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, AIR 1969 SC 1267 , it was observed in paragraph 5 as follows: "rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side. " ( 19 ) IN the present case, it is true that the plaintiff could have moved for the amendment earlier than she did. But, as observed by the Supreme Court in a similar situation in P. H. Patil s case, AIR 1957 SC 363 (supra) in paragraph 9, the mistake in the frame of the suit appears to be more that of the learned counsel, and there is no ground for thinking that the plaintiff had not acted bona fide and in good faith. As stated earlier, the suit for possession for the plot on the amended plaint was not barred by limitation on the date of the application for amendment. In the circumstances, it cannot be said that any valuable right had accrued to the defendants or that by the delay in filing the application for amendment any injury that may not be compensated by costs had been caused to the defendants. The lower court in fact allowed the amendment on payment of costs. Mr. Makhija did not complain that the amount of costs awarded was inadequate. In view of the aforesaid decision of the Supreme Court, it is not necessary to refer to decisions of High Courts cited by Mr. Makhija and by Mr. Vohra on this question of delay. ( 20 ) MR. Makhija also contended that although the suit for possession was not barred by limitation on the date of the application for amendment, the suit, even after amendment, would not be maintainable as the plaintiff had not asked for cancellation of the letter, dated April 1, 1962, said to have been signed by the plaintiff, and the sale deed, dated June 7, 1962. said to have been executed by defendant 2 in favour of defendant 1. said to have been executed by defendant 2 in favour of defendant 1. It is not necessary to go into this contention, as it is open to defendant 1 to raise this contention before the lower Court during the further hearing of the suit on the basis of the amended plaint. ( 21 ) THE last contention of Mr. Makhija was that though the plaintiff filed the application for amendment under Order 6, Rule 17 of the Code of Civil Procedure, she prayed that paragraph 12 of the original plaint be amended to the effect, inter alia, that so far as the prayer for possession of the plot is concerned, the value for purposes of court-fees and jurisdiction is Rupees 20,000, that the plaintiff is a pauper and is unable to pay the requisite courtfee and she be permitted to file the suit in forma pauperis, and that the lower court, by the impugned order, allowed the amendment without even going through the procedure under Order 33 of the Code of Civil Procedure and deciding the question of the alleged pauperism of the plaintiff, and that the impugned order of the lower court should be treated only as allowing the amendments prayed, but not as granting permission to the plaintiff to sue in forma pauperis. Mr. M. S. Vohra. learned counsel for the plaintiff, admitted that the impugned order cannot be treated as one granting permission to the plaintiff to sue in forma pauperis as the procedure under Order 33 was never gone through, in fact, in the last para graph of the impugned order, the lower court stated only that the application for amendment was allowed subject to payment of Rs. 50 as costs. Nothing was said about the question of pauperism. It is, therefore, clear that the impugned order was only one granting the amendments prayed for, and not one granting permission to the plaintiff to sue-in forma pauperis. and the lower court has still to go through the procedure under Order 33 and decide the Question regarding the alleged pauperism of the plaintiff. ( 22 ) FOR the foregoing reasons, it has to be held that the lower court rightly allowed the application for amendment. The CivilRevision accordingly fails and is dismissed. In the circumstances of the case, the parties are directed to bear their own costs in the Civil Revision. ( 22 ) FOR the foregoing reasons, it has to be held that the lower court rightly allowed the application for amendment. The CivilRevision accordingly fails and is dismissed. In the circumstances of the case, the parties are directed to bear their own costs in the Civil Revision. The parties are also directed to appear before the lower court on February 4, 1974 for further proceedings in the suit.