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2008 DIGILAW 587 (DEL)

Sarbir Singh Sarang v. Kanwal Sunir Singh Sarang

2008-05-29

HIMA KOHLI

body2008
JUDGMENT Hima Kohli, J. 1. The plaintiff has filed the present application under Order VI Rule 17 of the Code of Civil Procedure (for short CPC) for amendment of the plaint, by incorporating therein Paras 16A, 16B, 16C, 23(f) and 23(g) in the body of the plaint, amending Para 18 of the plaint and adding Para (ab) in the prayer clause, as detailed in paras 8 to 11 of the application. 2. The accompanying suit has been instituted by the plaintiff against his three brothers and mother, defendants No. 1 to 4 praying inter alia for partition, declaration and permanent injunction in respect of property bearing No. C-108, N.D.S.E. Part-II, New Delhi. .3. By an exparte order dated 01.07.1994, the defendants were restrained from alienating, selling or encumbering the above mentioned property or transferring the possession of the property or any part thereof in favour of anyone else. It is the case of the plaintiff that during the pendency of the present suit, it came to his notice that the defendant No. 1 had illegally and in direct contravention to the aforesaid order dated 01.07.1994, sold the entire 1st floor of the abovementioned property to one Mr. Shahzad Zafar Ali, who was subsequently impleaded as defendant No. 5 vide order dated 29.3.2007. 4. Counsel for the plaintiff stated that he was unaware of the date and the consideration of the said Sale in favour of the said Mr. Shahzad Zafar Ali. It was contended that soon thereafter, on 06.01.1996, the plaintiff moved an application under Order I Rule 10 read with Section 151 of the Code of Civil Procedure 1908, being LA No. 450 of 1996. A reply thereto was filed by the said Mr. Shahzad Zafar Ali on 18.04.2006, i.e., after a gap of 10 long years. In the aforesaid reply, Mr. Shahzad Zafar Ali for the first time informed the court that he had purchased only half of the first floor of the property, the remaining half having been purchased by his wife, Mrs. Nikhat Ali and the sale deed was placed on record therewith. .5. It was submitted on behalf of the plaintiff that the aforesaid fact came to his knowledge only on 29.03.07 when the counsel for the defendant made a statement to that effect in the Court, and while allowing the impleadment .application, it was directed that both Mr. Shahzad Zafar Ali and Mrs. .5. It was submitted on behalf of the plaintiff that the aforesaid fact came to his knowledge only on 29.03.07 when the counsel for the defendant made a statement to that effect in the Court, and while allowing the impleadment .application, it was directed that both Mr. Shahzad Zafar Ali and Mrs. Nikhat Zafar Ali be impleaded as Defendants No. 5 and 6 respectively. .6. It was pleaded on behalf of the plaintiff that in view of the subsequent development of facts as stated above, it is imperative for the plaintiff to amend the plaint so as to include therein the facts regarding the sale of a portion of the above-mentioned HUF property to the newly impleaded defendants. Thus it was submitted that the amendments as sought for are necessary to determine the real questions of controversy between the parties and to avoid multiplicity of suits. In support of his argument that the application for amendment should not be disallowed merely because it is opposed on the ground that the same is barred by limitation and if granting an amendment subserves the ultimate cause of justice and avoids further litigation, the same should be allowed, counsel for the plaintiff relied on the following judgments: .(i) Ragu Thilak D. John v. S. Rayappan and Ors. AIR 2001 SC 699 . .(ii) Pankaja and Anr. v. Yellappa (D) by L.Rs. and Ors. AIR 2004 SC 4102 . 7. The aforesaid application was opposed by the counsel for defendants No. 5 & 6 who submitted that the plaintiff knew all along that defendants No. 5 & 6 were residing on the first floor of the suit premises purchased by them in the year 1995. Despite the same, the plaintiff sought to serve the said defendants at their earlier address, as furnished in IA No. 450/1996 filed by the plaintiff under Order I Rule 10 CPC, in January 1996. He therefore submitted that the amendments sought for by the plaintiff were barred by limitation and could not be allowed. He submitted that by way of the proposed amendments, the plaintiff was seeking to change the nature of the suit by adding new reliefs which is not permissible. He therefore submitted that the amendments sought for by the plaintiff were barred by limitation and could not be allowed. He submitted that by way of the proposed amendments, the plaintiff was seeking to change the nature of the suit by adding new reliefs which is not permissible. He further submitted that the address of the defendants No. 5 & 6 furnished by the plaintiff was one where the said defendants were residing till the execution of the sale deed in respect of the first floor of the suit premises and that immediately thereafter, the said defendants had shifted to the suit premises. .8. Counsel for the defendants No. 5 & 6 contended that if the averments made by the plaintiff in para 13 of the plaint were true that though he had gone to USA after locking his rooms on the second floor of the suit premises, the portion remained in his possession and he continued to occupy the same, then there was no reason for the plaintiff not to have known that the defendants No. 5 & 6 were residing on the first floor of the very same premises and that service ought to have been effected on them at the said premises and not at the old address. In support of his submission that time barred claims cannot be allowed by way of the amendments, he relied on the judgment rendered by the Supreme Court in the case of Shiv Gopal Sah alias Shiv Gopal Sahu v. Sita Ram Saraugi and Ors. reported as AIR 2007 SC 1478 . Relying on the decision rendered in the case of Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. reported as . AIR 2006 SC 1647 and Usha Balashaheb Swami and Ors. v. Kiran Appaso Swami and Ors. reported as AIR 2007 SC 1663 , counsel for the defendants No. 5 & 6 submitted that unexplained delay in filing the amendment application should not be allowed and that only such amendments should be allowed which do not cause injustice or prejudice to the other side and that by way of allowing amendments to the plaint in case the same results in materially substituting the cause of action or nature of the claim, such an amendment should not be allowed. 9. I have heard the counsels for the parties and have carefully perused the records, particularly the order sheets. 9. I have heard the counsels for the parties and have carefully perused the records, particularly the order sheets. 10. Upon going through the records, it transpires that the present suit was instituted by the plaintiff on 29.6.1994. While registering the suit and issuing notice on the interim application, an exparte interim injunction order dated 1.7.1994 was passed restraining his brothers, i.e. defendants No. 1 to 3 and his mother, defendant No. 4 from alienating, selling or encumbering the suit premises and from transferring the possession of the property in question or any part thereof in favour of anyone else. While proceedings were pending in the aforesaid suit, as none appeared on behalf of the plaintiff on 5.12.1994, the aforesaid interim order was vacated. Immediately thereafter, the plaintiff filed an application for review of the aforesaid order, being RA No. 17/1995. Notice was issued on the aforesaid application on 6.9.1995. In the meantime, the plaintiff filed another application, being IA No. 4623/1995 seeking grant of an injunction order restraining defendant No. 1 from selling, transferring or parting with possession of the suit premises and more particularly, the first floor thereof. Notice was issued on the aforesaid application vide order dated 5.9.1995 and in the meantime, the defendants No. 1 & 4 were directed to maintain status-quo qua transfer, alienation, parting with possession of the suit premises. 11. On 6.1.1996, the plaintiff filed two applications. The first application, being IA No. 449/1996 was filed by the plaintiff praying inter alia for restraining defendant No. 1 from executing/registering any sale deed in respect of the first floor of the suit premises and in case of having executed any documents, for disclosing mode and manner of the transfer. A prayer was also made to issue directions to defendant No. 1 to deposit the entire sale consideration in the Court which he had accepted for sale of first floor of the suit premises. The second application, being IA No. 450/1996 was filed by the plaintiff under Order I Rule 10 CPC for impleadment of Sh. Shahzad Zafar Ali as a defendant in the suit on the ground that the first floor of the suit premises had been sold by defendant No. 1 to the aforesaid person. Notice was issued on the aforesaid applications vide order dated 15.1.1996. However despite repeated orders, service could not be effected on the proposed defendant No. 5. Shahzad Zafar Ali as a defendant in the suit on the ground that the first floor of the suit premises had been sold by defendant No. 1 to the aforesaid person. Notice was issued on the aforesaid applications vide order dated 15.1.1996. However despite repeated orders, service could not be effected on the proposed defendant No. 5. Finally, defendant No. 5 was served by way of publication of citation in the newspaper and appearance was entered on his behalf as recorded in the order dated 28.4.2005. 12. In the meantime, defendant No. 1 filed a reply to the aforesaid application filed by the plaintiff under Order I Rule 10 CPC admitting inter alia that the first floor of the suit premises had been sold to Sh. Zafar Ali and in terms of an Agreement to Sell which was entered into between him prior to filing of the suit. It was also admitted that the documents of sale were executed after the vacation of the interim order passed on 1.7.1994. When the proposed defendant No. 5 filed his reply to the aforesaid application on 18.4.2006, he submitted that by way of registered sale deeds executed by defendant No. 1 on 23.5.1995, he along with his wife, Mrs. Nikhat Ali had become the owners of the entire first floor portion of the suit premises. The aforesaid application was disposed of vide order dated 29.3.2007. The Court while taking note of the fact that though the application filed by the plaintiff was only for impleadment of Mr. Zafar Ali as a defendant in the suit, taking into consideration the fact that the first floor of the suit premises was purchased by two separate sale deeds in the name of Mr. Shazad Zafar Ali and his wife, Ms. Nikhat Shazad, impleaded both the parties as defendants No. 5 & 6 in the suit in exercise of the jurisdiction under Order I Rule 10(2) CPC. It is pertinent to note here that aggrieved by the order of impleadment, defendant No. 5 filed an appeal before the Division Bench, being FAO(OS) No. 159/2007 which was withdrawn vide order dated 18.5.2007. 13. It is pertinent to note here that aggrieved by the order of impleadment, defendant No. 5 filed an appeal before the Division Bench, being FAO(OS) No. 159/2007 which was withdrawn vide order dated 18.5.2007. 13. Immediately thereafter, the plaintiff filed the present application for amendment of the plaint so as to place on record the subsequent events that had taken place during the pendency of the present proceedings, including the fact that the first floor of the suit premises was sold by defendant No. 1 to the defendants No. 5 & 6. As a result, certain consequential reliefs were sought by the plaintiff by way of the amendments. Notice was issued on the aforesaid application vide order dated 29.5.2007. 14. A perusal of the provision of Order VI Rule 17 CPC make it manifest that the Court is conferred with the power to allow alterations and amendments of the pleadings if the Court is of the view that such amendments may be necessary for determining the real question in controversy between the parties at any stage of the proceedings. Proviso to Order VI Rule 17 CPC stipulates that no application for amendment shall be allowed after trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, party could not have raised the matter before the commencement of trial. In the present case, proviso to Rule 17 CPC has no application as trial of the suit has not yet commenced. 15. It is trite that the Court should be liberal in granting prayer for amendment of the pleadings, unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer made in the amendment application is malafide. One of the basis for rejecting an amendment of the pleadings is that the amendment shall result in changing the subject matter of the suit by substituting one cause of action for another and the other is that the relief sought by way of amendment is time barred. 16. The object of the aforesaid provision is that the Courts should try the merits of the case that come before them and should allow all amendments that may be necessary for determining the controversy between the parties provided, it does not cause any injustice or prejudice to the other side. 16. The object of the aforesaid provision is that the Courts should try the merits of the case that come before them and should allow all amendments that may be necessary for determining the controversy between the parties provided, it does not cause any injustice or prejudice to the other side. It is also settled law that while considering whether an application for amendment should be allowed or disallowed, the Court should not go into the correctness or the falsity of the case in the amendment, nor should it record a finding on the merits of the amendment sought to be incorporated by way of amendment. [Refer: Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. [ AIR 2006 SC 1647 ]. 17. It is equally well settled principle that the prayer for amendment of the plaint and prayer for amendment of the written statement stand on different footing and different yardsticks are applicable. As against the general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim, in the case of written statement the said principle is not applicable and addition of new grounds of defence or substituting or altering a defence by taking inconsistence pleas in the written statement is permissible. 18. As held by the Supreme Court in the case of B.K. Narayana Pillai v. Parameswaran Pillai reported as AIR 2000 SC 614 , the Courts while deciding prayers for amendment should not adopt a hypertechnical approach and amendments should be allowed in the pleadings to avoid uncalled for multiplicity of litigation. In the case of Ragu Thilak D. John v. S. Rayappan and Ors. reported as AIR 2001 SC 699 , the Supreme Court observed that even if the amendments sought would change the nature of the suit originally filed, the same could not be a reason for refusing the application for amendment and that the dominant purpose of Order VI Rule 17 CPC was to minimize the litigation and that the plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case. .19. .19. Now keeping in mind the real controversy, the test which is held to be the cardinal test for exercise of discretion to allow or disallow an amendment is whether such an amendment is necessary to decide the real dispute between the parties. The defendants No. 5 & 6 have undoubtedly purchased the first floor of the suit premises from defendant No. 1 during the pendency of the present proceedings in the period when the interim order granted in favour of the plaintiff on 1.7.1994 stood vacated vide order dated 5.12.1994, only to be restored vide order dated 21.3.1996 when in the interregnum, the sale deeds came to be executed by defendant No. 1 in favour of defendants No. 5 & 6 on 24.5.1995 and 8.6.1995 respectively. It is a matter of record that the plaintiff filed two applications in the year 1996. One of them, being IA No. 450/1996 by which the impleadment of defendant No. 5 was sought by the plaintiff, came to be allowed vide order dated 29.3.2007 and both the defendants were impleaded in the present proceedings. The other application filed by the plaintiff being IA No. 449/1996 is still pending disposal. It has also been held on 29.3.2007 that the .presence of defendants No. 5 & 6 is necessary to enable the Court to effectively and completely adjudicate upon and settle the questions involved in the suit. Thus, to a large extent, the cardinal test for exercise of discretion has been answered in the affirmative in favour of the plaintiff vide order dated 29.3.2007. 20. This leaves the objection raised on behalf of the defendants No. 5 & 6 as to limitation. Thus, to a large extent, the cardinal test for exercise of discretion has been answered in the affirmative in favour of the plaintiff vide order dated 29.3.2007. 20. This leaves the objection raised on behalf of the defendants No. 5 & 6 as to limitation. While it is an admitted position that the proposed amendments sought to be carried out by the plaintiff in the plaint is to bring on record the subsequent developments that have taken place during the pendency of the present proceedings, namely, sale of the first floor of the suit premises by defendant No. 1 in favour of defendants No. 5 & 6 and the consequences thereof, fact remains that after having gained knowledge of the sale of the first floor of the suit premises to the defendant No. 5 in the year 1996, when the plaintiff filed an application under Order I Rule 10 CPC, the plaintiff did not take any steps for seeking amendment of the plaint at the said time, at least in respect of defendant No. 5. Hence the defendant No. 5 is justified in raising the plea of the proposed amendments being barred by limitation qua him. 21. That is however, not the case as far as defendant No. 6 is concerned for the reason that the fact that a part of the first floor of the suit premises was sold by defendant No. 1 to defendant No. 6 (wife of defendant No. 5), came to the knowledge of the plaintiff only as recently as in the year 2006, when defendant No. 5 filed a reply to IA No. 450/1996. The aforesaid conclusion is fortified by the fact that while filing a reply to IA No. 450/1996, the defendant No. 1 did not make any mention of the second sale deed in favour of the defendant No. 6 and instead, only referred to sale of the first floor of the suit premises to the defendant No. 5. Thus the plea of limitation raised by the counsel for the defendants No. 5 & 6 against the plaintiff for seeking the proposed amendments as far as the defendant No. 6 is concerned, fails and it cannot be said that the proposed amendments qua the defendant No. 6 are barred by limitation. 22. Thus the plea of limitation raised by the counsel for the defendants No. 5 & 6 against the plaintiff for seeking the proposed amendments as far as the defendant No. 6 is concerned, fails and it cannot be said that the proposed amendments qua the defendant No. 6 are barred by limitation. 22. Coming back to the proposed amendments in the plaint qua the defendant No. 5, the plaintiff cannot deny the fact that he was aware of the sale of the first floor of the suit premises by the defendant No. 1 to the defendant No. 5 right from the year 1996 onwards. But for inexplicable reasons, the plaintiff did not take any steps to simultaneously seek amendment of the plaint to bring on record, the subsequent events with respect to defendant No. 5. At the same time, it is quite true that the Courts have in a large number of cases allowed by way of an amendment even such claims which were barred by time, subject to fulfillment of the test of bonafides and reasonable explanation offered for the delay on the part of a party. Hence, the plaintiff who seeks to introduce a time barred claim should not only be expected to offer a reasonable explanation and justification for the same, but should also show by his conduct his bonafides, particularly when such a claim sought to be introduced by the plaintiff by way of an amendment would have the consequences of defeating the rights created in the defendants by sheer lapse of time. 23. Counsel for the plaintiff has not offered any explanation, much less plausible explanation to justify the delay of over one decade in filing the application for amendment. The explanation offered in respect of defendant No. 6 does not hold true in so far as the defendant No. 5 is concerned. The colossal negligence and lack of diligence shown on the part of the plaintiff is a relevant consideration for deciding the present application. The bonafides on the part of the plaintiff is also to be tested in the light of the fact that it is the plaintiffs own case that he was in occupation of the second floor of the suit premises. The bonafides on the part of the plaintiff is also to be tested in the light of the fact that it is the plaintiffs own case that he was in occupation of the second floor of the suit premises. Any reasonable person would assume that the fact that the defendants No. 5 & 6 were residing on the first floor of the same premises since the year 1995-96, after having purchased the same, was to the knowledge of the plaintiff and yet for about a decade, no effort was made by him to serve the said defendants at the said address, due to which the application for impleadment kept lingering till the year 2006-2007. 24. However, matter does not rest here. Despite the fact that the plaintiff had sought impleadment of only defendant No. 5 in the impleadment application, the Court while allowing the application vide order dated 29.3.2007, arrived at a conclusion that the defendant No. 6 being a purchaser of one half of the first floor of the suit premises by virtue of a separate sale deed, was also a necessary and proper party to effectively and completely adjudicate upon and settle the questions involved in the suit. As a result, both the defendants were impleaded in the suit as defendants No. 5 & 6. It is also relevant to note that the aforesaid order of impleadment was challenged by the defendants No. 5 & 6 in an appeal, being FAO(OS) No. 159/2007 filed before a Division Bench, which was ultimately dismissed as withdrawn vide order dated 18.5.2007. 25. In these circumstances, the application filed by the plaintiff for introducing proposed amendments qua the defendant No. 5 cannot be rejected outright as the Court has already exercised its discretion while impleading both the defendants No. 5 & 6, as necessary and proper parties to effectively and completely adjudicate upon and settle the questions involved in the suit. 25. In these circumstances, the application filed by the plaintiff for introducing proposed amendments qua the defendant No. 5 cannot be rejected outright as the Court has already exercised its discretion while impleading both the defendants No. 5 & 6, as necessary and proper parties to effectively and completely adjudicate upon and settle the questions involved in the suit. Under the aforesaid circumstances and having evaluated the material on the record relevant for deciding the present application, this Court is of the opinion that it would subserve the ends of justice if the application filed by the plaintiff seeking to amend the plaint is allowed, while keeping the issue as to whether the delay has extinguished the right of the plaintiff qua the defendant No. 5, by virtue of expiry of the period of limitation prescribed in law, by holding that the plea of limitation in respect of defendant No. 5 be made a subject matter of an issue at the time of framing of issues, after allowing the amendment as prayed for by the plaintiff and after completion of pleadings. 26. Accordingly, the application of the plaintiff seeking amendment of the plaint as proposed, is allowed subject to payment of costs of Rs. 10,000/- payable by the plaintiff to the defendant No. 5, through counsel within four weeks. 21.27. It may be clarified that the plaintiff is liable to pay the costs in view of the gross negligence shown by him in conducting the present proceedings. It is further clarified that the proposed amendments to the plaint are allowed without prejudice to the right of the defendant No. 5 to keep the legal plea of limitation alive, for consideration at the time of framing of issues. ORDER 1. By way of a separate order, IA No. 6600/2007 filed by the plaintiff seeking amendment of the plaint has been allowed conditionally. The plaintiff shall file the amended memo of parties within four weeks with advance copy to the other side. The defendants are directed to file the written statement to the amended plaint within four weeks with an advance copy to the counsel for the plaintiff who shall file replications within four weeks thereafter. 2. Both the parties are directed to file their original documents, within four weeks, with advance copies to be exchanged with each other. The defendants are directed to file the written statement to the amended plaint within four weeks with an advance copy to the counsel for the plaintiff who shall file replications within four weeks thereafter. 2. Both the parties are directed to file their original documents, within four weeks, with advance copies to be exchanged with each other. The parties shall exchange the index of documents in advance and endorse the admission/denial of documents in a separate column on the index. After the admission/denial is conducted before the Joint Registrar, the exhibited documents shall also be endorsed on the list of documents of all the parties. 3. List before the Joint Registrar on 18.9.2008, for admission/denial of documents. Application allowed