THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Pronounced on: 19.05.2011
+ IA No. 187/2011 (Order 6 Rule 17) in
CS(OS) No. 2179/2010
PRAMOD KUMAR JAIN & ANR ..... Plaintiffs
- versus -
RAMESH KUMAR JAIN ..... Defendant
Advocates who appeared in this case:
For the Plaintiff: Mr. A.K. Singla, Sr. Adv. with
Mr. J.K. Sharma, Adv.
For the Defendant: Mr. Navin Chawla, Mr. Gaurav Kaushik
and Mr. Tushar Singh, Advs.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported No
in Digest?
V.K. JAIN, J. (ORAL)
1. This is an application filed by the defendant for amendment in the written statement. The defendant wants to add the following paragraph to the written statement:-
"5A. That in any case, the present suit is CS(OS)No. 2179/2010 Page 1 of 9 barred by the law of limitation as it has been instituted 12 years after the possession of the defendant through his predecessor-in-interest namely Shri J.R. Jain became adverse to the plaintiffs."
2. The case of the plaintiffs is that they are the co- owners of the property no. 26, Friends Colony (West), New Delhi-110065 along with Smt. Niti Jain and Smt. Ram Kali Jain. This is also their case that Late Shri J.R. Jain, father of the defendant was appointed as attorney of the plaintiffs in respect of the aforesaid property and power of attorney has since been cancelled. This is also their case that the defendant is in occupation of a portion of the suit property as a family member of another co-owner Smt. Ram Kali Jain and this was admitted by him in a suit for partition of the suit property filed by another co-owner Smt. Niti Jain. It is also alleged that that the licence of the plaintiff has been terminated by the plaintiffs and therefore, he cannot continue in possession of the portion occupied by him in the suit property.
3. A perusal of the written statement would show that the case of the defendant is that the suit property i.e. property no. 26, Friends Colony (West), New Delhi-110065 was purchased by the joint family consisting of his father Late Shri J.R. Jain and his three brothers namely Late Dr. R.N. Jain, CS(OS)No. 2179/2010 Page 2 of 9 Late Shri S.R. Jain and Shri N.L. Jain. A number of other properties are stated to have been purchased by the aforesaid joint family consisting of Late Shri J.R. Jain and his three brothers. It is also alleged that in order to avoid disputes between the families, it was orally decided amongst Late Shri J.R. Jain and his brothers and with the blessing of their father Late Shri Uddham Singh Jain, that the property no. 26, Friends Colony (West), New Delhi shall be occupied and shall belong to Shri J.R. Jain and his family; the house at 14, Alipore Road, Delhi shall be owned and enjoyed by Dr. R.N. Jain and Shri S.R. Jain and their families; and the property at Kolkata will be enjoyed by Shri N.L. Jain and his family.
It is further alleged that the above referred family settlement was duly implemented and the four brothers and their families continue to enjoy the properties in terms of the said settlement. It is also claimed that as far as the family of Shri J.R. Jain is concerned, a further oral family settlement took place whereby it was decided that in the property at Friends Colony, Smt. Ram Kali Jain (wife of Late Shri J.R. Jain and mother of the defendant), Shri Raj Kumar Jain (elder brother of the defendant), Shri Ramesh Jain (the defendant himself) and Late Shri Mukesh Jain (brother of the defendant) CS(OS)No. 2179/2010 Page 3 of 9 and Shri Rakesh Jain (another brother of the defendant) would have an equal share.
It is also alleged that since formal recording of transfer of titles would have required lot of documentation and expenditure, the oral family settlement was given effect to in various forms like exchange of gift deeds between Smt. Ram Kali Jain with regard to the property at Alipore Road in favour of Smt. Sushila Jain (wife of Shri S.R. Jain) and the one executed by Shri Sushil Kumar Jain (son of Shri S.R Jain) in favour of Smt. Ram Kali Jain in respect of the suit property at Friends Colony. Similar transactions are pleaded in respect of various companies like Jain Export Pvt. Ltd., Ajanta Tubes and Pasupati Spinning and Weaving Mills Ltd. It is also claimed that Late Shri J.R. Jain was dealing with all authorities including MCD in respect of the suit property.
4. It is thus evident that the case of the defendant, as pleaded in the written statement, is that he is one of the co- owner of the suit property, which had fallen to the share of the branch of his father Late Shri J.R. Jain in the family settlement which took place amongst Shri J.R. Jain and his three brothers. By way of the proposed amendment, the defendant wants to claim that the suit is barred by limitation having been CS(OS)No. 2179/2010 Page 4 of 9 filed more than 12 years after the possession became adverse to the plaintiffs. Thus, on the one hand, the defendant is pleading co-ownership of the suit property whereas on the other hand, by way of proposed amendment, he wants to claim that his possession was adverse to the plaintiffs meaning thereby that the plaintiffs were the owners and his possession was hostile and adverse to them.
5. The law of amendment of pleadings in our country is rather liberal in nature the legal proposition being with an amendment should ordinarily be allowed unless it is likely to prejudice the opposite party or is likely to take away a vested right which has accrued to the opposite party provided the opposite party can be compensated in terms of cost. 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.
6. The question as to whether such a plea can be taken by way of amendment to the written statement came up for CS(OS)No. 2179/2010 Page 5 of 9 consideration before the Division Bench of this court in FAO (OS) No. 634/2009. In that case, a Will executed by Smt. Abnash Kaur was set up by the plaintiff. In his written statement, the appellant did not dispute the Will. He however claimed superior rights as a subrogatee mortgagee in possession of the property and as a tenant with a right of subletting in the property. He thus claimed possession of the property as a co-owner, as a subrogatee-mortgagee in possession and as a tenant.
The defendant sought amendment in the written statement in order to plead that he has been in adverse possession of the property for a period of more than 12 years before the filing of the suit and therefore, title of the plaintiff had been extinguished by virtue of limitation and he was its absolute owner. The amendment was disallowed by a learned single Judge of this court.
Rejecting the appeal filed by the defendant, the Division Bench of this Court relying upon the decision of the Supreme Court in L.M. Aswathama vs. P. Prakash (2009) 13 SCC 229, held that the plea of adverse possession sought to be taken by the defendant was mutually destructive to the plea of possession as co-owner, as a subrogatee-mortgagee and as a CS(OS)No. 2179/2010 Page 6 of 9 tenant. It was noticed that the adverse possession does not begin to operate until title is renounced and unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner.
7. In Steel Authority of India vs. Union of India, 2006 (12) SCC 233, the workmen before the labour court had taken a stand that they had been working under the contractors, they also wanted to plead that they were also the workmen of the principal employer. Supreme Court was of the view that to raise such a mutually destructive plea is impermissible in law and such a mutually destructive plea should not be allowed to be raised even in industrial adjudication.
8. In Sarva Shramik Sangh vs. Indian Oil Corporation Ltd. and Ors., AIR 2009 SC 2355, the Supreme Court observed that mutually repugnant and contradictory pleas, destructive of each other may also not be permitted to be urged simultaneously by a plaintiff/petitioner, though alternative plea can be taken when there is no inconsistency in the facts alleged.
9. In the case before this court also, since the defendant has already pleaded co-ownership. Plea of ownership and the CS(OS)No. 2179/2010 Page 7 of 9 plea of adverse possession now sought to be taken by way of proposed amendment are mutually destructive and both of them cannot be allowed to stand together. Law permits the defendant to set up alternative and in some cases even inconsistent pleas, but, not the pleas which are mutually destructive of each other. The application therefore, is liable to be dismissed on this short ground alone.
10. The learned counsel for the defendant states that the plea of adverse possession has been necessitated on account of the case of the plaintiffs that one of them had revoked the power of attorney in favour of Mr. J.R. Jain in the year 1995 whereas the other plaintiff revoked the same in the year 2005. I fail to appreciate how this could be a material consideration while considering the amendment sought to be made by the defendant. What is material is that the defendant having already pleaded co-ownership of the suit property, it is not open to him to simultaneously claim possession adverse to that of the plaintiff.
The application is accordingly dismissed. CS(OS) 2179/2010, IA No. 14351/2010 (Order 39 Rule 1 and 2), IA No. 14549/2010 (Order 15A), IA No. 188/2011 (Section 10 CPC) and IA No. 189/2011 (Order 6 Rule 16) The learned counsel for the defendant seeks an CS(OS)No. 2179/2010 Page 8 of 9 adjournment on the ground that he is not ready with the arguments on these applications.
Hence, list for disposal on 14 th September, 2011.
(V.K. JAIN) JUDGE MAY 19, 2011 SD CS(OS)No. 2179/2010 Page 9 of 9