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2014 DIGILAW 2265 (DEL)

Prit Pal Singh Bhasin v. S. Ranbir Singh

2014-08-25

G.P.MITTAL

body2014
Judgment : G.P. Mittal, J: 1. This is an application under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) seeking amendment of the plaint. 2. A suit for possession, permanent injunction and grant of mesne profits was filed by the Plaintiff alleging that property bearing municipal no.XIV/11186-A, Bagh Rao ji, known as Doriwalan, Delhi measuring 135 sq.yds was owned by Late Sardar Darshan Singh Bhasin. On 02.04.2000, Late Sardar Darshan Singh Bhasin died intestate in USA leaving behind his widow i.e. Defendant no.3 and children, i.e. the Plaintiff and Defendants no.5 to 7. Another small portion measuring about 25 sq. yds adjacent to the property owned by the Plaintiff and Defendants No.3 to 7, bearing municipal no.XIV/11187-A, Bagh Raoji, Delhi, a lease hold portion was purchased and acquired by Defendant no.3 in or around 1985 and this portion also got amalgamated and merged into the house property of Late Sardar Darshan Singh Bhasin. It is the case of the Plaintiff that sometime in the year 1987, Late Sardar Darshan Singh Bhasin was granted Visa for USA and at the instance/suggestions/guidance of one Raghubir Singh Kohli, he executed a General Power of Attorney(GPA)/Special Power of Attorney(SPA) in favour of the said Raghubir Singh Kohli to look after, manage, rent out or sell the property if need be in his absence. 3. According to the Plaintiff, Late Sardar Darshan Singh Bhasin, in addition to executing the said GPA also permitted Defendants no.1 and 2 to occupy the ground floor shown as ‘red’ in the site plan as a licensee for storage of tyres, etc. as they (Defendants no.1 and 2) were dealing in tyres. According to the Plaintiff, said Power of Attorney was cancelled by Late Sardar Darshan Singh Bhasin during his visit to India on 05.04.1999 and he also filed a registered cancellation deed and, therefore, the Defendants had become liable to restore the possession of the said property and since they failed to vacate the same, they are liable to pay damages, etc. 4. In the application for amendment, it is stated that at the time of Late Sardar Darshan Singh Bhasin’s visit to India on 04.03.1999 (inadvertently earlier mentioned as 05.04.1999), he cancelled the Power of Attorney as stated above as also a Will dated 15.07.1987. Consequently, the Plaintiff wants to amend para 10 of the plaint. 4. In the application for amendment, it is stated that at the time of Late Sardar Darshan Singh Bhasin’s visit to India on 04.03.1999 (inadvertently earlier mentioned as 05.04.1999), he cancelled the Power of Attorney as stated above as also a Will dated 15.07.1987. Consequently, the Plaintiff wants to amend para 10 of the plaint. The application is opposed by Defendant no.1 on the ground, inter alia, that the story set up in the plaint as also in the application is false and concocted and hence, the application is liable to be dismissed. It is stated that the Plaintiff has no right, title or interest in the suit property which was sold by Late Sardar Darshan Singh Bhasin to Defendant no.1 and his brothers in the year 1987 for valuable sale consideration. It is stated that no notice of execution of the cancellation deeds was given by the Plaintiff as Late Sardar Darshan Singh Bhasin to Defendant no.1 or his brothers. 5. The learned counsel for the Defendant has urged that the amendment sought if allowed will change the nature of the suit and will also take away the valuable right of the Defendant as the relief claimed with regard to the cancellation of the Will is barred by limitation. On the other hand, the learned counsel for the Plaintiff urges that in the written statement itself, the Defendant has taken a plea that the Will dated 15.07.1987 was also executed by Late Sardar Darshan Singh Bhasin and thus, there is no question of setting up a new case. It is urged that no prejudice is going to be caused to the Defendant if the amendment is allowed. 6. It is well settled that unless there is serious injustice or irreparable loss to the opposite side, the Court should adopt a liberal approach in allowing amendment of a pleading, particularly when the trial of the suit has not commenced. There is no gainsaying that truthfulness or falsity of the averments made in the application for amendment of pleadings is not to be gone into at the stage of deciding the application for amendment of pleadings. If there is no prejudice and the amendment sought is necessary for determining the real controversy between the parties, the amendment must be allowed. There is no gainsaying that truthfulness or falsity of the averments made in the application for amendment of pleadings is not to be gone into at the stage of deciding the application for amendment of pleadings. If there is no prejudice and the amendment sought is necessary for determining the real controversy between the parties, the amendment must be allowed. In para C of the counterclaim, Defendant no.1 himself has stated that the cancellation deeds dated 04.03.1999 executed by Late Sardar Darshan Singh Bhasin qua the Special Power of Attorney/General Power of Attorney and the Will are illegal and void ab initio and has no force in the eyes of law. As such, the present counter claim has been filed by Defendant no.1 to declare that the cancellation deed dated 04.03.1999 in respect of Special Power of Attorney/General Power of Attorney and Will etc. dated 15.07.1987 are void ab initio and that they have no value in the eyes of law and no binding force. 7. In the instant suit, the Plaintiff is not seeking the cancellation of the Will. There is no question of the relief on the basis of the averments made in the plaint being barred by limitation as the Plaintiff seeks possession on the plea that the said documents having been cancelled and the Defendant’s licence been revoked, Defendants no.1 and 2 have become unauthorised occupants of the property. 8. To my mind, the amendment sought is necessary to determine the real controversy between the parties and merits of the claim made by the Plaintiff are not to be judged at this stage. Of course, by amendment of the plaint, there will be some inconvenience to Defendant no.1, who is contesting the suit. It may also result in some expenditure by the Defendant. The same can be compensated by cost. 9. The amendment sought is, therefore, allowed, subject to payment of cost of Rs.10,000/, which shall be paid by the Plaintiff to Defendant no.1/his counsel within four weeks. Subject to payment of cost, the amended plaint shall be taken on record and Defendant no.1 shall be at liberty to file written statement to the amendment plaint within four weeks of the receipt of the cost. 10. List before the Joint Registrar for completion of pleadings on 26th November, 2014.