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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ TEST.CAS. 51/2010
MANU MARKANDE & ANR ..... Petitioner
Through: Mr. Rajiv Aneja, Adv.
versus
THE STATE & ORS ..... Respondents
Through: Ms. Anusha Ojha, Adv. for R-1.
Mr. Vipin Kumar Gupta and Mr.
Birjesh Singh, Advocates for R-4
with R-4 in person.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
ORDER
% 14.01.2016 I.A.No.21049/2014(U/o 6 Rule 17 CPC by R-3 and 4)
1. Petitioners who are the son and daughter of late Smt. Suraksha Markande claim letters of administration to the properties of their maternal grandparents Sh. Pyare Lal Sharma and Smt. Shanta Sharma. The mother of the petitioners Smt. Suraksha Markande expired on 16.3.1999 i.e before the death of the grandfather and the grandmother who expired on 20.8.2000 and 10.12.2000 respectively. Essentially the petitioners claim rights as Class-I legal heirs to the properties of their maternal grandparents and for which TEST.CAS. 51/2010 page 1 of 9 purpose this testamentary case seeking letters of administration has been filed.
2. By this application for amendment respondent no.3 and 4 in the petition seek amendment of their written statement to add the following pleas/stands:-
(i) The mother of the petitioners Smt. Suraksha Markande had in her life time executed a family agreement dated 11.10.1993 whereby the mother Smt. Suraksha Markande had waived of her rights in the property bearing no. C-113, Naraina Vihar, New Delhi. It is contended that on account of the negligence of the earlier counsel this most important plea was not taken earlier. This plea which is now sought to be raised is supported by filing the original agreement dated 11.10.1993 executed by Smt. Suraksha Markande.
(ii) Late Sh. Pyare Lal Sharma the grandfather died leaving behind his Will dated 16.8.2000 as per which the petitioners received a sum of Rs.1 lakh each and gave up of their rights in the properties of their grandparents. Accordingly, the written statement is sought to be amended with other related facts that on account of the Will dated 16.8.2000 of late Sh. Pyare Lal Sharma, petitioners have no rights to the properties of the grandparents.
TEST.CAS. 51/2010 page 2 of 9
(iii) The petition for letters of administration is pleaded to be barred by limitation as the period of limitation is 3 years with respect to the probate case and thus this letters of administration case which has been filed in the year 2010 is time barred as the Will of late Sh. Pyare Lal Sharma is dated 16.8.2000.
(iv) The petition is also barred by limitation because the respondent nos. 3 and 4 had got mutated the suit property in their names in the year 2001 and the claim of the petitioners to the suit property is hence time barred.
3. Learned counsel for the petitioners has very vehemently opposed the amendments which are sought, by arguing that there is considerable delay in filing of the present amendment application which has been filed in the year 2014 although the suit was filed 4 years back in 2010. It is also argued that the family agreement dated 11.10.1993 relied upon by the respondent nos. 3 and 4 is a forged and fabricated document and that the Will dated 16.8.2000 of late Sh. Pyare Lal Sharma is also a forged and fabricated document.
4. It is trite that at the stage of deciding the amendment application courts do not very minutely examine the merits of the matter because by allowing an amendment only a case is allowed to be set up and it is not TEST.CAS. 51/2010 page 3 of 9 that the case as is allowed to be set up by amendment is believed by the court. Whether the case as stated in the amendment application sought to be introduced is correct or not, will be a subject matter of decision in the suit, and merits will be decided after framing of issues and leading of evidence at the stage of final arguments in the suit. Courts ordinarily therefore do not look at the merits of the amendment sought unless and until the merits categorically show such a gross amount of malafides for the amendments sought being disallowed. If two views are possible with respect to a particular plea and a document, courts will ordinarily allow parties who have committed mistake in the conduct of their cases to rectify the mistake by allowing amendment of pleading to add the plea, subject of course to the other side being monetarily compensated. Also, it is settled law that amendment of a written statement is to be more liberally allowed then amendment of a plaint because whereas amendment of plaint is circumscribed by the principle that a totally new cause of action cannot be introduced or a plea which is time barred cannot be inasmuch as a suit on the basis of time barred plea would be dismissed and an application for amendment of the written statement is essentially towards a plea of defence TEST.CAS. 51/2010 page 4 of 9 to which limitation period does not apply and so also does not apply the aspect of bringing in a new cause of action by amending of a written statement which only contains defence. As per these principles let us examine the amendments which are prayed for on behalf of respondent nos. 3 and 4.
5. So far as the first amendment prayed for as also the aspect of the Will of Sh. Pyare Lal Sharma dated 16.8.2000 with its related pleas is concerned, it is seen that the respondent nos. 3 and 4 have filed the original family agreement dated 11.10.1993 as also the original Will dated 16.8.2000. In my opinion today at this stage itself there is no ground to hold that this Court should hold these original documents containing the signatures of the executants and the witnesses of these documents to be forged without trial being held. Whether these documents are genuine documents or are forged and fabricated documents pertain to merits of the matter and at the stage of allowing of amendment application, and which is only allowing a plea to be set up, this Court ought not to give a summary finding on existence/validity or otherwise of such documents. Therefore, amendments sought by placing reliance upon the family agreement dated 11.10.1993 and the Will dated 16.8.2000 alongwith the other consequential factual amendments sought in TEST.CAS. 51/2010 page 5 of 9 the written statement are allowed to be made.
6. So far as the plea of the respondent nos. 3 and 4 that the suit is time barred because the date of the Will is 16.8.2000 and to question which legal proceedings had to be initiated within three years of the execution of the Will, but the present proceedings are initiated in the year 2010, this stand of the respondent nos. 3 and 4 is ex facie misconceived because a limitation period for arising of a cause of action to challenge the Will only commences when the Will is set up and brought to the knowledge of the person who ought to file legal proceedings to challenge the same. Nothing in this case has been pointed out to this Court to show that the Will dated 16.8.2000 was brought to the knowledge of the petitioners three years prior to the filing of the present suit. Therefore, once the plea which is set up is ex facie impermissible in law, I do not propose to allow this amendment to permit the respondent nos. 3 and 4 to plead that the suit is barred by limitation as it has been filed after three years of the Will dated 16.8.2000 or three years after the death of the grandfather Sh. Pyare Lal Sharma on 20.8.2000.
7. So far as the fourth amendment sought is concerned of the suit being barred by time on the ground of mutation having been done in favour of the TEST.CAS. 51/2010 page 6 of 9 respondent nos. 3 and 4 of the Naraina Vihar property in 2001, this amendment also cannot be allowed for the reason that not only mutation in the municipal record does not confer title, but for any right to accrue on the basis of the mutation which is an assertion to hostile title of adverse possession, it must be shown that 12 years period have expired for the petitioners to have lost the right to the property under law of adverse prescription under Section 27 of the Limitation Act. Mutation is of the year 2001 and the present petition is of the year 2010 i.e the present proceedings are filed before the expiry of 12 years and hence this plea of limitation of the respondent nos. 3 and 4 is also ex facie misconceived and therefore amendment accordingly sought is dis-allowed.
8. I may note that there is no gross delay in filing of the present amendment application inasmuch as issues in this petition have not yet been framed. After the amendment of CPC in 2002 courts have to strictly look to the amendments prayed for being disallowed only when trial has commenced and which is not so in the present case. The amendments which are sought for by the respondent nos. 3 and 4 are to be allowed by the Court as they are crucial to determine the matters in controversy and hence the TEST.CAS. 51/2010 page 7 of 9 amendments to the extent as permitted above are allowed to be incorporated in the written statement subject to payment of costs of Rs.25,000/- to the petitioners.
9. Amended written statement be now filed within a period of six weeks by the respondent nos. 3 and 4 confining the amendments thereto to the extent as allowed by the present order, and replication to this amended written statement be filed by the petitioners within a period of six weeks thereafter as prayed. Costs also be paid to the petitioners in terms of the present order alongwith the filing of the written statement by the respondent nos. 3 and 4.
I.A is allowed to the limited extend stated above and disposed of accordingly.
I.A Nos.13679/2013 (u/O 12 R 6 CPC by petitioner), 11249/2015(U/o 8 R 1A(3) CPC by R-3 and 4) and 15049/2015 (U/o 7 Rule 2 & 9 CPC by petitioner)
10. Counsel for the parties state that I.A Nos.13679/2013, 11249/2015 and 15049/2015 have become infructuous in view of disposing of I.A 21049/2014 and are therefore disposed of as such.
TEST.CAS. 51/2010 page 8 of 9 I.A.No.587/2016(U/o 7 Rule 11 CPC(d) by R-3 and 4)
11. This application is disposed of as not pressed with liberty to the respondent nos. 3 and 4 to urge all grounds of facts and law at the stage of final arguments in the suit.
Test Cas.51/2010
12. Parties will file additional documents, if any, in their power and possession to the amendments as now allowed within a period of six weeks and admission/denial thereof be done within a period of six weeks thereafter by filing an affidavit attaching thereto an index of documents of the other side containing an additional column of the endorsement of admission/denial.
13. List before the Joint Registrar for marking of exhibits to the documents on 27th April, 2016.
14. List in Court for framing of issues on 25th May, 2016.
VALMIKI J. MEHTA, J
JANUARY 14, 2016
ib
TEST.CAS. 51/2010 page 9 of 9