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2016 DIGILAW 1771 (DEL)

MOHINI ANAND v. DESH KUMAR KATHURIA

2016-04-08

VALMIKI J.MEHTA

body2016
ORDER : 1. On 19.1.2016, the last date of hearing, this Court passed the following order:- “I.A. No.13746/2015 (by plaintiff under Section 151 CPC) 1. By this application, plaintiff prays for closure of the evidence of the defendant which has to be led before the evidence of the plaintiff is to be led, in view of the order dated 27.8.2013, and by which order issues were also framed. 2. Counsel for defendant has drawn attention of this Court to the issue that requirement of evidence being led whether first of the defendant or other witnesses of the defendant achieved finality only on 18.2.2015 when the Division Bench disposed of FAO(OS) No.75/2015 and thereafter on 2.11.2015 when I.A. No.6778/2015 filed by the defendant to postpone the defendant’s evidence was dismissed. 3. In this suit issues were framed way back on 27.8.2013 and really I find that though defendant cannot be completely blamed defendant, however, defendant cannot also be absolved because it is surprising that the defendant’s evidence has not at all commenced. 4. Counsel for the defendant states that affidavits by way of evidence of nine witnesses have been filed and evidence will be confined to such nine witnesses except of course the liberty granted by the Division Bench vide order dated 18.2.2015 in FAO(OS) No.75/2015. 5. It is made clear that it will be the responsibility of the defendant to ensure that all the nine witnesses of the defendant are present on the dates fixed for recording of the evidence which are fixed before the Local commissioner and if even on a single date any one witness is not present, evidence of such witness will be closed. However, to bring reasonableness to the Local Commissioner’s proceedings, the defendant will not be bound to bring more than three witnesses on one date of hearing. 6. Application is accordingly disposed of with the aforesaid observations and further direction that the Local Commissioner should now commence the recording of evidence. Local Commissioner will endeavour that long adjournments are not given and adjournments are not unnecessarily given to any of the parties for the purposes of recording of evidence. CS(OS) No.360/2011 7. Parties to appear before the Local Commissioner on 4th February, 2016 at 4:00 p.m. 8. List for reporting of progress of recording of evidence on 11th May, 2016.” (underlining added) 2. CS(OS) No.360/2011 7. Parties to appear before the Local Commissioner on 4th February, 2016 at 4:00 p.m. 8. List for reporting of progress of recording of evidence on 11th May, 2016.” (underlining added) 2. A reading of the Order dated 19.1.2016 shows that plaintiff had applied for closure of the evidence of the defendant, however, the defendant was allowed to lead evidence subject to certain restrictions upon the defendant and which are stated in paras 4 and 5 of the Order dated 19.1.2016 and which includes that if witnesses do not come, then evidence is to be taken as closed. 3. On behalf of the plaintiff, it is stated that the defendant is deliberately again not leading evidence because whereas two witnesses were examined on 26.2.2016 and 27.2.2016 and discharged, the third witness of the defendant was under cross-examination and the matter was listed on 14.3.2016, 15.3.2016 and 17.3.2016. On these dates, however, evidence could not be recorded because defendant filed in the meanwhile an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) for amendment of the written statement being I.A. No.3484/2016. It is argued that an application for amendment of the written statement which is filed is only to deliberately delay the leading of evidence in this case for which specific directions were given on 19.1.2016. It is also stated that application for amendment after commencement of evidence is ordinarily not allowed after the amendment of Order VI Rule 17 CPC by the CPC amending Act 22 of 2002. 4. In my opinion, merely because an application for amendment was filed, defendant was not entitled to contend before the Local Commissioner that the dates fixed for evidence be cancelled inasmuch as not only that would be on the presumption that application for amendment was bound to be allowed but also that the evidence was bound to be led by the defendant on issues unconnected with the amendments sought. Even if the application for amendment was bound to be allowed, that does not mean that evidence which is not in conflict with the existing written statement ought not to have been led by the defendant. Accordingly, applying the strict observations made by this Court on 19.1.2016, the evidence of the defendant is closed as the defendant has failed to produce his witnesses in terms of the directions contained in the Order dated 19.1.2016. 5. Accordingly, applying the strict observations made by this Court on 19.1.2016, the evidence of the defendant is closed as the defendant has failed to produce his witnesses in terms of the directions contained in the Order dated 19.1.2016. 5. Let parties appear before the Local Commissioner for recording of evidence of the plaintiff with respect to issue nos.3 and 4 framed on 27.8.2013 on 2nd May, 2016 at 3.00 P.M. I.A. No.3484/2016 (under Order VI Rule 17 CPC by defendant) 6. By this application, the defendant seeks to amend the written statement by basically seeking to add preliminary objections. The subject suit is a suit for partition, rendition of accounts etc filed by the plaintiff Ms. Mohini Anand claiming as the daughter of late Sh. Asa Nand and late Smt. Roshan Devi. As per the pleadings of the parties, disputes which have arisen have been crystallized in terms of the issues framed on 27.8.2013 and these issues read as under:- “1) Whether the plaintiff is not a daughter of the deceased Smt. Roshan Devi and late Sh. Asa Nand Kathuria? OPD 2) Whether Smt. Roshan Devi had executed a registered gift deed in respect of the suit property in favour of the defendant? OPD 3) Whether Smt. Roshan Devi executed a genuine, valid and admissible power of attorney dated 21.12.1998 in favour of the plaintiff in relation to the House No.59, Plot No.24, W.E.A. Karol Bagh, New Delhi? OPP 4) Whether the plaintiff is entitled to the relief prayed for in the suit? OPP” 7. By the same Order dated 27.8.2013, the defendant was called to lead evidence at the first instance with respect to issue nos.1 and 2. 8. A reading of the issues shows that plaintiff as the daughter of late Smt. Roshan Devi and late Sh. Asa Nand Kathuria who claims rights in the suit property including under a power of attorney dated 21.12.1998 with respect to a portion of the suit property being House No.59, Plot No.24, W.E.A., Karol Bagh, New Delhi. Defendant has denied the right of the plaintiff to the suit property on the ground that plaintiff is not the daughter of late Smt. Roshan Devi and late Sh. Asa Nand Kathuria and also that defendant has in his favour a registered gift deed executed by Smt. Roshan Devi. 9. Defendant has denied the right of the plaintiff to the suit property on the ground that plaintiff is not the daughter of late Smt. Roshan Devi and late Sh. Asa Nand Kathuria and also that defendant has in his favour a registered gift deed executed by Smt. Roshan Devi. 9. Let me at this stage reproduce the preliminary objections which are sought to be added by amendment of the written statement as also the proposed para 10 to the written statement. A first glance shows that the pleas sought to be raised are cryptic to the extent of being vague and in violation of Order VI Rule 4 CPC, besides, repetition being found in the objections sought to be raised, and endeavouring to plead evidence which is not the scope of a pleading. It is almost as if the new pleas lack conviction of the defendant who seeks to plead the same and that defendant essentially is seeking to delay the disposal of the suit. These pleas which are sought to be added to the existing written statement are as under:- “Preliminary objections: 1. That the present suit as framed without seeking the relief of possession is not maintainable. 2. That the present suit for declaration without seeking relief of possession is not maintainable and is liable to be dismissed. 3. That the present suit does not disclose any cause of action and is liable to be rejected under Order 7 Rule 11 CPC. 4. That the present suit for declaration is barred by limitation as the limitation to file for declaration is three years from the date of cause of action and the present suit is hopelessly barred having been fined after a period of nine years when the alleged cause of action arose. 5. The plaintiff has valued for rendition of account of Rs.1,640000 and as such is liable to pay court fee on the said amount. 6. That the relief of rendition of account as claimed and prayed by the plaintiff in the prayer clause is also time barred and is liable to be dismissed being beyond a period of three years from the date of filing of the present suit. 7. That simplicitor suit for declaration is barred under section 34 of the Specific Relief Act without seeking consequential relief of possession. 8. 7. That simplicitor suit for declaration is barred under section 34 of the Specific Relief Act without seeking consequential relief of possession. 8. That the present suit is barred under Section 41(h) of the Specific Relief Act. 9. That the alleged General Power of Attorney dated 22.12.1998 alleged to be executed by late Smt. Roshan Devi although have been forged and fabricated document stands terminated on the death of Smt. Roshan Devi on 1.2.2001. 10. That the defendant further wants to add to the preliminary submissions on account of the subsequent developments which have taken place during the pendency of the present suit after filing of the written statement which would help in proper adjudication of the disputes involved in the present suit. 11. That the proposed para 10 of the preliminary submissions would read as under: Proposed Para 10. 1. That during the pendency of the present suit defendant had made several attempts by filing applications before the Sub Registrar under Right Of Information act seeking information regarding the registered gift deed and other necessary information for procuring the original gift deed which was in the custody of the office of Sub Registrar where the said gift deed had been registered. That despite several attempts to personally inspect the records, the defendants were not able to make sense of the records and thereafter filed RTIs to elicit information on the gift deeds. That further appeals and second appeals were filed against the replies received but in vain as the Department of Archives kept blaming the Sub-Registrars for the poor state of the records and insisted on it being only the custodian of the transferred records. That the defendant, on being dissatisfied with the replies and answers given by the office of Sub Registrars in appeals and second appeals and their subsequent failure to comply with the directions of the appellate authorities, has filed a Civil Writ Petition bearing No.WP(C)No.2205/2015 before the Hon’ble Court where on the Hon’ble Court has been pleased to issue notice to the office of Sub Registrar and directions are being given in this regard. That the defendant with due diligence have been making sincere efforts in procuring the original gift deed from the office of sub registrar where the said gift deed had been registered the particulars of which are not in the knowledge of the defendant.” 10. That the defendant with due diligence have been making sincere efforts in procuring the original gift deed from the office of sub registrar where the said gift deed had been registered the particulars of which are not in the knowledge of the defendant.” 10. At the outset, it must be noted that amendment of pleadings after the evidence has commenced has not to be liberally allowed in view of the amendment to the provision of Order VI Rule 17 CPC by the CPC amending Act 22 of 2002. Also, it is seen that preliminary objections now sought to be raised are such which were available and could be raised even in the original written statement. Ordinarily merits of the amendments sought to be introduced is not seen at this stage but, in order to see the malafide nature and futility of the same we will have to consider if the pleas sought to be added have substance or are at all necessary. Let me therefore now take up each proposed amendment which is sought to be added on behalf of the defendant, and which will show how frivolous the amendments sought to be added are and that the amendment application filed is only to delay the disposal of the suit filed by the plaintiff. 11. The first proposed preliminary objection is that suit framed without seeking relief of possession is not maintainable and it is also relatable to proposed preliminary objection nos.2, 7 and 8 and which are effectively repetition of preliminary objection no.1 and which is just to unnecessarily add more amendments. One issue which is sought to be urged cannot be broken up by repeatedly calling them as separate preliminary objections. In essence, the objection is that the plaintiff is not entitled to any reliefs in this suit for partition because plaintiff should have sued for possession. The plea sought to be now raised by the defendant besides being available to the defendant in the original written statement which was filed is in fact misconceived in law because every co-owner of the property is deemed to hold possession for and on behalf of all the co-owners and a co-owner does not have to file a suit for possession unless in the plaint it is admitted that ouster has been pleaded to be established against the plaintiff. Therefore plaintiff being one co-owner of the property as the daughter of late Smt. Roshan Devi and late Sh. Asa Nand Kathuria, she need not have sued for possession, and hence the suit for partition as filed is sufficient in law. In any case, there is no reason to allow the amendment prayed in this regard at this stage after commencement of leading of evidence in view of the CPC amending Act 22 of 2002 which provides that at this stage, amendments ordinarily sought not to be allowed. The object of the amending Act was that liberal interpretation of the provision of CPC should not cause unnecessary harassment and that it is high time that amendments should not be routinely allowed if the amendments are sought for at a delayed stage in the suit viz after the commencement of recording of evidence. 12. The proposed preliminary objection no.3 is no pleading in the eyes of law because this proposed preliminary objection only states that the suit does not disclose cause of action and is liable to be rejected under Order VII Rule 11 CPC. This proposed preliminary objection is totally vague and in fact the plaint as per the pleadings discloses a cause of action and it is only because of which the issues have been framed by this Court on 27.8.2013 which are reproduced above. 13. The proposed preliminary issue no.4 is with respect to the suit being barred by limitation by alleging that limitation is three years, however, it is not stated in the proposed preliminary objection as to how for any relief claimed of partition, the suit would be barred with respect to the reliefs claimed merely because the relief of declaration would be barred. In fact, the relief of declaration is unnecessarily claimed because once plaintiff would succeed with respect to the issues framed then there would automatically and implicitly declared the entitlement of the plaintiff and which declaration does not have to be sought by way of a specific relief. Whenever a court grants a relief to a party first there is declaration of a right of a party and thereafter relief is granted but that does not mean that for each relief claimed firstly a declaration has to be sought and established. Whenever a court grants a relief to a party first there is declaration of a right of a party and thereafter relief is granted but that does not mean that for each relief claimed firstly a declaration has to be sought and established. Declaration is mandatory only in law if the law so provides and there is no legal requirement of seeking the relief of declaration, and which is only prayed by the plaintiff as a matter of abundant caution. This proposed preliminary objection is also therefore misconceived. 14. The proposed preliminary objection no.5 is that the court fee is liable to be paid with respect to rendition of accounts and which proposed preliminary objection is misconceived for two reasons. Firstly, on the relief prayed for rendition of accounts ad valorem court fee at this stage is not payable as per the relevant provisions of the Court-Fees Act, 1870 and the Suits Valuation Act, 1887 as applicable to Delhi. Court fee is only paid when rendition of accounts is granted and specific amount is decreed in favour of the plaintiff after rendition of accounts. The second and the more important reason is that the plaintiff has been allowed to sue as a pauper without payment of court fee as the suit originally filed as I.P.A. No.27/2009 has been registered as a suit by the Order of the learned Single Judge of this Court dated 19.11.2010. This proposed preliminary objection is therefore clearly misconceived. 15. The proposed preliminary objection no.6 is that relief of rendition of accounts is time barred, however, the relief of rendition of accounts is never time barred except for a period of three years prior to filing of the suit and there is no need of any pleading in this regard much less by amending of the written statement at the stage of evidence. 16. So far as preliminary objection no.9 being the challenge to the power of attorney dated 21.12.1998 is concerned, it is noted that issue in this regard is already framed and hence there is no need to add proposed preliminary objection no.9 in this regard. 17. 16. So far as preliminary objection no.9 being the challenge to the power of attorney dated 21.12.1998 is concerned, it is noted that issue in this regard is already framed and hence there is no need to add proposed preliminary objection no.9 in this regard. 17. So far as the prayer to add the para of ‘subsequent developments’ of the defendant not having been able to get the original gift deed or registered copy of the gift deed is concerned, surely this is not a matter of pleadings because this pertains to the aspect of the defendant not getting evidence to prove his existing case as per the pleadings. Evidence is not to be pleaded in the pleadings of the parties. This proposed preliminary objection is therefore misconceived and is not to be allowed to be added in the written statement. 18. The proposed preliminary objections, and the additional para 10 sought to be now pleaded after this Court had passed the Order dated 19.1.2016 directing time bound completion of defendant’s evidence, and this application being filed at the stage of evidence after the amendment of CPC by the Act 22 of 2002, for these reasons and the reasons otherwise given above, the present application is a gross abuse of the process of law and is therefore dismissed with costs of Rs.25,000/-. Costs shall be paid to the plaintiff within six weeks from today. 19. List on 11.05.2016.