* HIGH COURT OF DELHI : NEW DELHI
+ IA No.2887/09 in CS (OS) No. 558/2007
% Judgment reserved on : 24th April, 2009
Judgment pronounced on : 5th May, 2009
MRS. RAJNI MONGA ..... Plaintiff
Through Mr.Kirti Uppal with
Mr.Sanjeev, Advs.
versus
HARDEEP KUMAR & ORS. ..... Defendants
Through Mr.S.P. Mehta, Adv. for D-1.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MANMOHAN SINGH, J.
1. By this order, I shall dispose of the plaintiff's application under Order 6 Rule 17 read with Section 151 CPC being I.A. No. 2887/09.
2. The plaintiff has filed the aforesaid suit for declaration, injunction, partition and recovery of mesne profits. The plaintiff has filed the present application pursuant to the order dated 19 th August, 2008 wherein this court directed the plaintiff to amend the plaint for properly valuing the suit in respect of several reliefs claimed. It was also directed that the plaintiff should examine the objection raised by CS (OS) No.558/2007 Page 1 of 4 the defendants with respect of mis-joinder of causes of action.
3. It is submitted by the plaintiff that the defendants' objection with respect to alleged mis-joinder of cause of action is completely vague and incorrect as it is the case of the plaintiff that the property bearing No.D-1/27, Vasant Vihar, New Delhi was gifted to the plaintiff by her mother Late Smt.Kailash Kumari vide registered gift deed dated 6th August, 1997 and the same was in possession of the tenant, namely, PLO Embassy. In the Will dated 6th August, 1997 of Late Smt. Kailash Kumari, this property has been given to the plaintiff to the exclusion of other heirs. Thus, by including the relief pertaining to this property, there is no mis-joinder of cause of action as alleged. It is further stated that the defendant No.1 with malicious intention has forcibly deprived the plaintiff from utilizing the rental income of the property gifted to the plaintiff by her mother, therefore, the plaintiff filed the present suit not only for partition based on Will dated 6 th August, 1997 but also for declaration, injunction and recovery of mesne profits in respect of property bearing No.D-1/27, Vasant Vihar, New Delhi mentioned in the Will. Accordingly by prayers (f), (g) and (h), the plaintiff prayed before this court as under:-
a) Pass a decree of Rs.36,00,000/- towards rentals illegally collected by Defendant No.1 for the last three years along with interest @ 18% p.a.
b) Pass a decree of mesne profits in respect of rentals of property No.D-1/27, Vasant Vihar, New Delhi, after holding an enquiry as per Order XX Rule 12 CPC. CS (OS) No.558/2007 Page 2 of 4
c) Direct defendant No.1 to deposit all future rentals in respect of property No.D-1/27, Vasant Vihar, New Delhi in this Hon'ble court till the property is vacated and file accounts in respect of previous rentals paid by the tenant i.e. PLO Embassy.
4. This application has been opposed by the defendants on various grounds, details of which are given as under:-
a) That the valuation of the property as accessed by the plaintiff is illegal as the Government has already declared circle rates of the immoveable properties, independently, of each year and as such the minimum market value of every property has to be accessed as per the said rates.
b) That the suit filed by the plaintiff has no cause of action as the plaintiff has claimed partition of the properties which have already been sold by the deceased Smt. Kailash Kumari during her lifetime on the basis of forged and fabricated Will.
c) That during the course of arguments on the application under Order 7 Rule 11 CPC when the court was going to dismiss the suit of the plaintiff on the basis of incorrect valuation, the plaintiff sought time for further instructions and amendment of the suit, therefore, this application is baseless, illegal and cannot be allowed.
5. It is well settled law that while considering application for amendment of the plaint, the merit of the case is immaterial as observed in the case of Lakha Ram Sharma vs. Balar Marketing Pvt Ltd reported in 2003 (27) PTC 175 (SC). It is not in dispute CS (OS) No.558/2007 Page 3 of 4 that the case is at the initial stage and if the amendment is allowed, no prejudice will be caused to the defendants as the issues in the matter are yet to be framed. As regards the preliminary objection raised by the defendants is concerned, the said objections have to be decided on merit and the same can be considered at the time of framing of issues. If the suit is not maintainable as alleged by the defendants, a preliminary issue in this regard can be framed and the arguments can be addressed by the parties. Insofar as the present application is concerned, there is no bar to allow the said amendment at this stage in view of the well settled law on amendment. Thus, the amendment sought is allowed subject to costs of Rs.10,000/- to be paid by the plaintiff to the defendants within four weeks from today. The amended plaint is taken on record. The defendants may file the written statement, if any, within four weeks from today. List the suit for framing of issues as well as hearing of the pending applications on 11th August, 2009.
MANMOHAN SINGH, J MAY 05, 2009 SD CS (OS) No.558/2007 Page 4 of 4