THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 26.10.2010
Judgment Pronounced on: 28.10.2010
+ CS(OS) 2165/2008
MR. JEEVAN KUMAR MEHAN ..... Plaintiffs
- versus -
MRS. PRAVEEN VERMA & ORS. .... Defendants
Advocates who appeared in this case:
For the Plaintiff : Mr Kartike Anand,
For the Defendants : Mr A.K. Singh and Mr T. Akhtar,
Advs. for D-1 & 2.
Mr Nageshwar Pandey, Mr Anuj Kr.
Singh and Mr A.K. Pandey, Advs for
D-3. Ms Anju Lal and Ms Shalu Lal,
Advs. for D-4 to 7.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1.
Whether Reporters of local papers may be allowed to see the judgment? YES
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be reported in Digest? YES V.K. JAIN, J IA No. 14978/2008 (u/O 6 R 17 CPC)
1. This is an application for amendment of the plaint. The plaintiff wants to amend the plaint so as to incorporate Paras 18.1 and 18.3 and also wants to amend paras 19. 20, CS(OS)NO. 2165/2008 Page 1 of 18 22, 23 and 25 of the plaint while deleting para No. 21. The plaintiff also wants to amend the prayer clause so as to claim certain additional reliefs.
2. The application has been opposed by defendants No. 1 and 2. The application, however, is not opposed by defendants No. 3 to 7.
3. It has been alleged in the original plaint that the plaintiff is the co-owner of property No. C-85, NDSE-II, New Delhi having 1/4th share in it, which he purchased vide sale deed registered on 18th August 1986. The defendants 1 to 3 are the sisters of the plaintiff, whereas defendants No. 4 to 7 are the wife and children of his deceased brother. It has been further alleged in the plaint that the aforesaid property was purchased by the plaintiff, his father late Sh. Ram Dev Mehan and his brother late Sh. Rakesh Kumar Mehan, by pooling their resources. Earlier, this property was owned by Surinderjit Singh HUF and Shri Ravi Singh. Late Ram Dev Mehan, father of the plaintiff, purchased the half undivided share in that property from Surinderjit Singh HUF, whereas the plaintiff purchased 1/4th undivided share in the property from Shri Ravi Singh. Late Rakesh Kumar Mehan also purchased 1/4th undivided share in the CS(OS)NO. 2165/2008 Page 2 of 18 suit property from Shri Ravi Singh. Thus the plaintiff, his father and brother had proportionate shares of 1/4th, 1/2 and 1/4th, respectively in that property. It is further alleged that at the time of purchase of suit property, it had a single story construction. Later on, first floor and second floor were also constructed, besides making certain additions and alterations. After the aforesaid constructions, the plaintiff, his father and his brother entered into an amicable arrangement amongst themselves and by virtue of that arrangement they entered into separate and exclusive possession of different portions of the property, while leaving some parts common for the usage of all. Late Ram Dev Mehan took possession of the basement and the ground floor, the plaintiff took possession of the first floor whereas the brother late Rakesh Kumar Mehan took possession of the second floor. It has been further alleged that the co- owners took up exclusive possession and enjoyment of different portions, without severance of interest that would amount a partition of the suit property. It has also been alleged in para 9 of the plaint that the suit property also has a driveway on the ground floor which forms part of the common passages and areas of the suit property and are in CS(OS)NO. 2165/2008 Page 3 of 18 common possession and enjoyment of all the co-owners. The portion marked in Black in the site plan Annexure „A‟ to the plaint indicates common areas and passages. The portion shown in Red indicates the portion occupied by late Ram Dev Mehan. The portion marked in Green shows the portion occupied by the plaintiff, whereas the portion marked in Blue was in possession of late Rakesh Kumar Mehan. It has also been alleged that under the Will executed by late Ram Dev Mehan dated 3rd June 2001, his share in the undivided suit property devolved equally on defendants No. 1 to 3, who are his daughters. The condition imposed by the testator stipulated that in case any of his daughters wished to sell the share inherited by her, the first preference for such sale was required to be given to his other daughters and in case other daughters were not willing to purchase that share, the second preference was to be given to the plaintiff to purchase that share.
4. It is also alleged in the original plaint that defendants No. 1 to 3 were intending to sell their portion in the suit property without first offering the same to the plaintiff. The plaintiff sought a permanent injunction, CS(OS)NO. 2165/2008 Page 4 of 18 restraining them from alienating their share in the suit property, marked in red in the site plan and also the common driveway marked in brown and the terrace rights, in contravention of the terms of the Will of late Ram Dev Mehan.
5. Thus, the stand taken by the plaintiff in the original plaint is that the suit property was jointly owned by him, his late father Sh. Ram Dev Mehan and his late brother Sh. Rakesh Kumar Mehan and that though under the arrangement between them the basement and ground floor was in occupation of his late father Sh. Ram Dev Mehan, the first floor was in his occupation and the second floor was in occupation of his late brother Sh. Rakesh Kumar Mehan, there was no partition as such amongst them and there was no severance of their status as the co- owners of the suit property. Of course, there is no averment in the original plaint that the terrace of the second floor was in the joint use and possession of the parties or was their common property.
6. Alongwith the suit, the plaintiff also filed IA No. 12488/08 under Order II Rule 2 of CPC, seeking liberty to seek/include other legal remedies either by way of CS(OS)NO. 2165/2008 Page 5 of 18 amendment or fresh legal action.
7. Now, the plaintiff, by way of proposed amendment of the plaint, wants to plead that since he, defendants 1 to 3 and defendants 4 to 7 have an undivided share in the suit property, defendants 1 to 3 cannot sell their share in the suit property to any third party. He also wants to claim that in any event defendants 1 to 3 can sell, only what does belong to them. He also wants to plead that late Shri Ram Dev Mehan had only half undivided share in the suit property and in the undivided land underneath the construction, alongwith half proportionate share in the undivided roof-rights. Further, he wants to plead that in seeking to sell the basement and ground floor, including garage and roof rights, the defendants 1 to 3 intend to infringe upon the rights of the plaintiff and defendants 4 to 7 and in any case, no such sale can be made, without partition of the property by metes and bounds. The plaintiff wants to claim additional relief comprising (i) a decree for declaration that he has one-fourth undivided share in the land underneath the construction on the suit property and proportionate one fourth share in the roof rights; and (ii) a decree for partition of the suit property by metes and CS(OS)NO. 2165/2008 Page 6 of 18 bounds.
8. It is settled proposition of law that an amendment should generally be allowed, unless it is shown that permitting the amendment would be unjust and would result in prejudice to the opposite party which cannot be compensated by cost or would deprive him of a right which has accrued to him with the lapse of time. Errors or mistakes, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or Written Statement. If there is no undue delay, no inconsistent cause of action is introduced and no vested interest or accrued legal right is affected and the application for amendment is not mala fide or will not prejudice the opposite party, the amendment should ordinarily be allowed.
9. It was contended by the learned counsel for the defendants 1 and 2 that whereas the case setup by the plaintiff in the original plaint is that the defendants 1 to 3 cannot sell their portion of the suit property, without first offering the same to him, the case now sought to be setup by way of proposed amendments is that since the property had not been partitioned, they had no right at all to sell CS(OS)NO. 2165/2008 Page 7 of 18 their portion in the suit property to any one, till the property was divided by metes and bounds. It was also pointed out that late Shri Ram Dev Mehan had bequeathed his entire share in the suit property, including the roof rights on the second floor to his daughters, it was contended that the Will was admitted in the plaint. By way of proposed amendment the plaintiff wants to take away an admission that the portion bequeathed by his late father Ram Dev Mehan to his daughters belonged exclusively to the Testator.
10. In my view, no admission is sought to be withdrawn by the plaintiff by way of the proposed amendment. Nowhere has the plaintiff admitted in the plaint that there was a partition of the suit property between him, his late father and his late brother Rakesh Kumar Mehan. What the plaintiff has claimed in para 7 of the plaint is that there was an amicable arrangement for separate and exclusive possession of different portions of the construction raised on the suit property while leaving some parts common for the usage of all. It has been specifically pleaded in para 8 of the plaint that the co- owners took exclusive possession and enjoyment of different portions without severance of interest that would amount to CS(OS)NO. 2165/2008 Page 8 of 18 a partition of the suit property. Thus, the case setup in the original plaint is that there was an arrangement for the mutual and exclusive possession of different portions of the suit property, though there was no partition as such and there was no severance of the interest. If there was no severance of interest, that would mean that there was no partition of the property and the parties continued to be the co-owners of the entire property.
11. As regards rights in the roof of the second floor, though the father had bequeathed the same to his daughters to the exclusion of his sons, he would have no right to do so in case there was no partition or a family arrangement, whereby the status of the father and sons as co-owners came to an end and they became absolute owners of the respective portions occupied by them in the suit property. The fact remains that there is no admission in the plaint that the rights in the roof of the second floor vested exclusively in late Shri Ram Dev Mehan though there is an admission that he had bequeathed these rights to his daughters, to the exclusion of his sons. If there was no partition amongst late Shri Ram Dev Mehan and his sons, he would be entitled to bequeath only his share in the rights CS(OS)NO. 2165/2008 Page 9 of 18 in the roof of the second floor and not the whole of such rights. In any case, it is settled proposition of law that the truthfulness or the legality of averments proposed to be made in the pleadings is not to be examined by the Court while deciding an application for amendment of pleadings.
12. It was next contended by the learned counsel for the defendants 1 and 2 that the relief initially claimed by the plaintiff was only for permanent injunction and by claiming additional reliefs of declaration and partition he is changing the very nature of the suit. I, however, find no merit in the contention. Mere claiming additional reliefs on the same set of facts does not amount to changing the nature of the suit or the cause of action on which the suit is based. The plaintiff is always entitled to claim additional reliefs by way of amendment of pleadings when the factual foundation for claiming those additional reliefs already exists in the original pleadings.
13. Drawing my attention to para 22 of the plaint, where it is alleged that the cause of action in the suit arose on 07th October, 2008 when defendant No.2 revealed the intention of defendants 1 to 3 to sell their share in the suit property in contravention of the Will of their father, it was CS(OS)NO. 2165/2008 Page 10 of 18 contended by the learned counsel for the defendants 1 and 2 that the proposed amendment would also result in altering the cause of action for filing the suit. Again, I find no merit in the contention. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to institute an action and seek remedy in a court or a tribunal. This is a combination of operative facts giving rise to one or more basis of suing before a Legal Forum; a factual situation that entitles one person to obtain relief, through court, from another person or entity.
In Halsbury Laws of England (4th Edn.) it has been stated as follows:
"„Cause of action‟ has been defined as meaning simply a factual situation, the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. 'Cause of action' has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action".
In ONGC vs. Utpal Kumar Basu, 1994 (4) SCC CS(OS)NO. 2165/2008 Page 11 of 18 711, Supreme Court held that:
"It is well settled that the expression „cause of action‟ means that bundle of facts which the petitioners must prove, if traversed, to entitled him to a judgment in his favour by the Court....Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts."
In Rajasthan high Court Advocates' Assn vs. Union of India 2001 (2) SCC 294, Supreme Court, inter alia, observed as under:
"The expression "cause of action" has acquired a judicially-settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in "cause of action".
Therefore, it cannot be said that mere attempt of CS(OS)NO. 2165/2008 Page 12 of 18 the defendants to sell the portion bequeathed to them by late Ram Dev Mehan amounted to cause of action to file the present suit. In order to maintain his action, the plaintiff is required to prove host of facts, including that he is a co- owners in the suit property, the defendants were trying to transfer possession of the portion occupied by them and that they have no right in law to transfer the portion occupied by them. The cause of action for claiming reliefs of declaration and partition is, therefore, not different from the cause of action for claiming the relief of the perpetual injunction alone. It is settled proposition of law that the cause of action has to be culled out from a conjoint reading of all the paragraphs in the plaint and averments made in one particular paragraph cannot be read in isolation and divorced from the facts alleged in other parts of the plaint. Therefore, there is no substitution of the cause of action by carrying out the proposed amendment.
14. Suraj Prakash Bhasin vs Smt. Raj Rani Bhasin And Ors. 1981 (3) SCC 652, the plaintiff filed a suit for partition of his share in the super structure of a theatre. After two years, he sought amendment of the plaint by claiming additional reliefs, on the footing that there was a CS(OS)NO. 2165/2008 Page 13 of 18 partnership of theatre business in which he had a share. He further demanded rendition of accounts in respect of cinema business. The amendment was resisted on the ground that it was a dubious device of developing a case of partnership and seeking relief thereon, while leaving such a cause dormant in the original plaint. Rejecting the contention of the defendant, the Supreme Court, inter alia, held as under:
"The plea based on partnership is neither a virgin case nor a violent departure from the original. After all, the appellant- defendant has a full opportunity to meet the case presented by the amendment. Maybe, a variety of circumstances some of which were mentioned before us might, if successfully established, disprove the veracity of the plaintiff's case, They are matters bearing on the merits of the case, not on the tea ability of the amendment.
15. In Pankaja and Anr. vs. Yellappa (Dead) by Lrs. And Ors. (2004) 6 SCC 415, the plaintiff filed a suit seeking possession of the suit property. After six years, he filed an application to amend the plaint so as to claim relief of declaration of his ownership in that property. One of the grounds on which amendment was refused was that grant of permission to amend the plaint would amount to introduction of a relief different from that sought in the CS(OS)NO. 2165/2008 Page 14 of 18 plaint. Allowing the appeal, Supreme Court held that the amendment sought for by the plaintiff did not introduce a different relief so as to bar the grant of prayer for amendment, since necessary factual had already been laid down in the plaint, in regard to the title, which though had been denied by the defendant. The Court felt that the title would be an issue to be decided in a trial and it would be incorrect to conclude that by the proposed amendment the plaintiff was introducing a different relief. In the present case also, the factual foundation for the additional reliefs claimed by way of proposed amendments already exist in the plaint since the plaintiff has already claimed that there was no partition of the suit property and the arrangement between him, his father and his brother was only with respect to exclusive possession of various portions of the suit property.
In G.Nagamma and Anr. vs. Siromanamma and Anr: 1996 (2) SCC 25, the plaintiff filed a suit for specific performance of agreement of re-conveyance. They later on applied for amendment so as to plead that the transactions of execution of the sale deed and obtaining a document for re-conveyance were single transaction, viz., mortgage by CS(OS)NO. 2165/2008 Page 15 of 18 conditional sale. They also wanted alternative relief to redeem the mortgage. The amendment was refused by the High Court. Allowing the appeal filed by the plaintiff, Supreme Court held that the plaintiff was entitled to plead even inconsistent pleas, though in the case before it, the plaintiffs were seeking only alternative reliefs. It was held that the application for amendment of the plaint did not change the cause of action and did not materially affect the relief claimed in the plaint. In the case before this Court, the plaintiff stands on a much stronger footing since she is not seeking to setup any inconsistent plea and is not seeking to claim even alternative reliefs.
16. One of the objectives behind allowing amendment of pleadings is to avoid multicity of proceedings. It cannot be disputed that the plaintiff has a right to file a separate suit, claiming partition and declaration. It would only result in multiplicity of proceedings if the proposed amendments are refused.
17. This is not the case of the contesting defendants that the additional reliefs claimed by the petitioners are barred by the limitation. Thus, they do not take away any vested interest of the contesting defendants. CS(OS)NO. 2165/2008 Page 16 of 18
18. The suit is at the very initial stage. No prejudice is likely to be caused to the defendants if the proposed amendments are allowed. They will have an opportunity to file written statement to the amended plaint and to controvert the factual and legal plea sought to be taken by way of proposed amendment. The plaintiff is not seeking to substitute the cause of action or the subject matter of the suit.
19. For the reasons given in the preceding paragraphs, the proposed amendments are allowed, subject to payment of Rs 15,000/- as costs. The IA stands disposed of. CS(OS) 1108/2006 Amendment plaint has already been filed. Written statement to the amended plaint be filed within two weeks. Replication, if any, can be filed within two weeks thereafter. Additional documents, if any, be filed within four weeks from today. The parties to appear before the Joint Registrar for admission/denial of documents on 30th November, 2010. IA No. 12488/2010 (under Order 2 Rule 2 of CPC) Since the amendments sought by the plaintiff have been allowed, this application has become infructuous and is dismissed as such.
CS(OS)NO. 2165/2008 Page 17 of 18 IA No. 12487/2010 (under Order 39 Rule 1 & 2 of CPC) To come up for disposal of the application on 06th December, 2010.
(V.K. JAIN) JUDGE OCTOBER 28, 2010 AG/BG CS(OS)NO. 2165/2008 Page 18 of 18