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2017 DIGILAW 4228 (DEL)

Brij Mohan v. Om Parkash Fateh Chand Ltd.

2017-10-31

JAYANT NATH

body2017
JUDGMENT : JAYANT NATH, J. I.A. No. 6502/2015 1. This application is filed under Order 6 Rule 17 CPC seeking amendment of the plaint. 2. The plaintiffs have filed the present suit seeking a decree of possession in respect of the certain portions of the property bearing Municipal Nos. 8711 to 8715, Ward No. XV, Desh Bandhu Gupta Road, Paharganj, New Delhi-110055. A decree is also sought for direction to the defendants to hand over the chain of documents to the plaintiffs. Mesne profits/damages are also sought. 3. The case of the plaintiffs is that they are the owners of the respective shares of the suit property through eight sale deeds executed by the defendants out of property bearing Municipal Nos. 8707 to 8715, Ward No. XV, Desh Bandhu Gupta Road, Paharganj, New Delhi-110055. It is stated that at the time of execution and registration of the sale deeds, it was assured by the defendants that the previous original title deeds would be handed over to the plaintiffs and simultaneously peaceful and vacant physical possession of the suit property would also be handed over to the plaintiffs. It is further averred that the defendants failed to fulfil the promises and hence the present suit. 4. The defendants have filed their written statement denying the claim of the plaintiffs. As per the defendants, it was a loan transaction and the sale deeds were executed as a security only and that there was no intention to convey any property to the plaintiffs. 5. By the present application, the plaintiffs seeks to add four more sale deeds in addition to the eight sale deeds in the present suit and states that being layman's while preparing the present suit, the said sale deeds have not been mentioned in the plaint. 6. I have heard the learned counsel for the parties. 7. The learned counsel appearing for the defendants has strongly opposed the present amendment stating that there is no case made out by the plaintiffs for the reliefs which have been sought in the plaint. He reiterates that the said sale deeds were executed as a security only. He further submits that the sale deeds were executed in 2009 and now the amendment is sought to be incorporated to them in the plaint. He also raised the issue of limitation. 8. He reiterates that the said sale deeds were executed as a security only. He further submits that the sale deeds were executed in 2009 and now the amendment is sought to be incorporated to them in the plaint. He also raised the issue of limitation. 8. The fact of the matter is that the suit is filed for possession of the certain shares of the suit property. Inadvertently it appears that a reference was not made to the four sale deeds which are now sought to be added to the plaint. The amendment does not change the nature of the suit. 9. Regarding the plea of the learned counsel for the defendants, the merit of the facts sought to be added vide amendments is not relevant for adjudication of the application under Order 6 Rule 17 CPC. Hence, the plea that the facts which are sought to be incorporated would have no merit has no relevance at this stage. 10. Regarding the plea of limitation, in my opinion, the suit is for possession. Mere incorporation of reference to additional four sale deeds does not introduce any new relief by the plaintiffs which can be said to be barred by limitation. 11. The supreme court in Pankaja and Another vs. Yellapa (D) by LRs. and Others, (2004) 6 SCC 415 held that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. There is discretion in such cases and it depends upon facts and circumstances of the case. The supreme court held as follows: “14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really sub serves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.” 12. If the granting of an amendment really sub serves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.” 12. In any case, the Supreme Court in the case of Revajeetu Builders and Developers vs. Narayanaswamy and Sons and Others, (2009) 10 SCC 84 , held as follows:- “67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala-fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money. (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation. (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.” 13. The present application is hence bona-fide. The facts sought to be added are necessary for the purpose of determining the real questions in controversy between the parties. 14. The present application is allowed subject to payment of costs of Rs. 25,000/-. Amended plaint is taken on record. The defendants may file written statement to the amended plaint without four weeks from today. Replication to the said written statement may be filed within six weeks thereafter. CS (OS) No. 2307/2014 & I.A. No. 14430/2014 15. List before the Joint Registrar for carrying out admission and denial of the documents on 05.02.2018.