[Cites 28, Cited by 0]
Bombay High Court
Ashok Gupta vs Rohini on 28 January, 2026
2026:BHC-OS:2345
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TRUSHA
TRUSHA TUSHAR
TUSHAR MOHITE ORDINARY ORIGINAL CIVIL JURISDICTION
MOHITE Date:
2026.01.28
14:51:57
+0530
INTERIM APPLICATION (L) NO.11484 OF 2025
IN
SUIT NO.2332 OF 1985
Ashok Gupta .. Applicant
Versus
Rohini Gupta D/o.Sita Devi & Anr. .. Respondents
Mr.Karan Bhosale i/b M/s.NDB Law, Advocate for the Applicant
Mr.K.G.Munshi, Senior Advocate, Advocate for the Respondent /
Original Defendant Nos.2 and 3
CORAM: FIRDOSH P. POONIWALLA, J.
RESERVED ON: OCTOBER 8, 2025
PRONOUNCED ON: JANUARY 28, 2026
JUDGEMENT:
-
1. This Interim Application has been filed by the Applicant /
Plaintiff seeking amendments to the Plaint.
2. The case of the Applicant in the Interim Application is as under:
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a. The present Suit was originally instituted by one Shri Om
Prakash Gupta and Smt. Savitri Devi, as Plaintiff Nos.1 and 2 ("Original
Plaintiffs"), praying inter alia for passing of decree of declaration,
rendition of accounts, partition and injunction besides making a prayer
for appropriate directions to the Defendants regarding details of assets
left behind by deceased Shri Kundanlal Gupta.
b. The Original Plaintiffs in the Suit passed away leaving behind
their respective Wills duly executed by them during their lifetime,
making a bequest of all their rights and claims of inheritance in respect
of their share in the leftover Estate of late Shri Kundanlal Gupta to Shri
Ashok Gupta (Applicant), who was substituted as a sole legatee / legal
representative of the Original Plaintiffs in the Suit. As such, the present
suit is now being prosecuted by the Applicant as the sole Plaintiff.
c. In addition to the Estate, which is the subject matter of the
present Suit, the deceased Kundanlal Gupta was also a partner in a
partnership firm named M/s. Kundan Talkies situated at Bahadurgarh,
Haryana, engaged, inter alia, in the business of running and conducting
a Cinema House. The said partnership firm was constituted vide
registered Partnership Deed dated 5th May 1970 to promote the family
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business. The deceased Shri K. L. Gupta, Shri Lalchand, Shri Om
Parkash and Shri Raj Kumar, minor son of aforesaid Shri Om Parkash,
were partners in the said partnership firm. The rights and claims of
Kundanlal Gupta, arising from the said partnership business, had not
been the subject matter of the present suit since Clause No.4 of the
Partnership Deed dated 5th May 1970 provides as follows:
"4. The Parties of the First and Second Parts are the
partners for life only i.e. during their life-time only and after
their death or retirement, their respective shares including all
benefits and other assets including goodwill in the said
Partnership Firm shall stand automatically distributed equally
between the Parties of the Third and the Fourth Parts. In that
event the partnership business shall be the exclusive property of
the remaining partners and no compensation or after benefits of
any kind shall be due to or claimed by the retiring partners
whatsoever."
d. This Partnership Deed dated 5th May 1970 is relevant in the
present suit for just and proper adjudication of the present suit since it
shows the different names used by the Late Kundanlal Gupta being (i)
Shri Kundanlal Gupta s/o Harnam Singh and (ii) Shri. K.L. Gupta, as
well as the parentage of all the partners of the said partnership firm.
e. During the pendency of the present Suit, a dispute had arisen
between Shri Raj Kumar Gupta, the sole surviving partner of the said
partnership firm and the Defendants herein, which led to the institution
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of a Suit on 24th September 2010 before the Civil Court at Bahadurgarh,
Distt. Jhajjar, Haryana, regarding the rights and entitlement to retain
the custody of the original registered Partnership Deed. The said Suit
was registered in the Civil Court, Bahadurgarh, as C.S. No.RBT-170 of
2010/ CIS No.CS-2469/2013 titled as Raj Kumar Gupta vs. Rohini D/o
Sita Devi and Another (hereinafter referred to as "the Bahadurgarh
Suit"). The Defendants herein were contesting the Bahadurgarh Suit as
Defendants.
f. Before the Civil Court at Bahadurgarh, Haryana, the Defendants
filed their joint Written Statement, adopting similar defences as taken
up by the Defendants in the present Suit. The Plaintiff in the
Bahadurgarh Suit also filed a Rejoinder to the Written Statement of the
Defendants.
g. Based on the pleadings of the parties in the Bahadurgarh Suit,
the Civil Court at Bahadurgarh was pleased to frame issues by an Order
dated 9th July 2014, which were further modified, altered and amended
by an Order dated 17th November 2022, and on which the trial was
finally conducted and concluded vide Judgement and Decree dated 13 th
February 2023 passed in the Bahadurgarh Suit. It is the case of the
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Applicant that some of the issues raised in the present Suit are similar to
the issues framed in the Bahadurgarh Suit. According to the Applicant,
this is evident from the two issues framed in the Bahadurgarh Suit
which are as follows:
Issue No. 1:
"Whether the deceased "Sh. Kundan Lal Gupta" alias "Kundan
Lal" son of late "Shri Harnam Singh" son of Sh. Nanhe Mal and
"Sh. Kundanlal Laxmichand Gupta" alias "KL Gupta" son of
"Laxmichand Motilal Gupta" are one and the same person and
what is his lineage? OPP
Issue No. 6:
Whether Kundanlal Laxmichand Gupta alias KL Gupta son of
Laxmichand Motilal Gupta had any original family history
and/or pedigree table and if so, then what is his pedigree table?
OPD
h. It is the case of the Applicant that a long trial was conducted in
the Bahadurgarh Suit. The Plaintiff in the Bahadurgarh Suit summoned
the records from various statutory authorities, state bodies and
institutions and examined as many as 19 witnesses, including private
witnesses, in support of his claims and to discharge the onus put on him
to prove the facts pleaded in the said Bahadurgarh Suit. The Defendants
examined two witnesses in support of their claims in the Bahadurgarh
Suit. After conclusion of the trial in Bahadurgarh Suit, the Civil Court
was pleased to pass a decree in favour of the Plaintiff vide Judgement
and Decree dated 13th February 2023 and held that the Plaintiff therein
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had been able to prove his case under Issue No.1 whereas the
Defendants had failed to prove their case under the Issue No.6. Further,
one Shri Shiv Kumar, who appeared as the Plaintiff's witness in the
Bahadurgarh Suit as PW1, has also passed away.
i. In the Bahadurgarh Suit, in order to establish Issue No.1 before
the Bahadurgarh Court, as stated hereinabove, the Plaintiff therein had
summoned public and private witnesses besides records maintained by
statutory authorities, Government bodies and institutions to establish
the lineage of Shri Kundanlal Gupta. After considering the nature of
allegations and counter allegations and based on the evidence collected
in the course of the trial, the Bahadurgarh Court, vide Judgement and
Decree dated 13th February 2023 clearly held that "the court reached to
the conclusion on the basis of preponderance of probabilities of evidence
that the plaintiff has been able to prove his case under Issue No.1
whereas the defendants have failed to prove their case under Issue
No.6". The Court further held that "the deceased Sh. Kundan Lal Gupta
alias Kundan Lal son of late Sh. Harnam Singh son of Sh. Nanhe Mal
and Sh. Kundanlal Laxmichand Gupta alias K L Gupta son of
Laxmichand Motilal Gupta were the one and the same person whose
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lineage remained to be as claimed by the plaintiff and as depicted in
Pedigree table at Para 2 above".
j. It is the case of the Applicant that he learnt about the pendency
of the Bahadurgarh Suit, which was instituted by Shri Raj Kumar Gupta,
when the Applicant was approached around 1 st August 2019 by Shri Raj
Kumar Gupta, along with his attorney and counsel prosecuting the
Bahadurgarh Suit at the Bahadurgarh Court, persuading the Plaintiff to
depose in the Bahadurgarh Suit. On being persuaded, the Applicant was
examined as a witness of the Plaintiff in the said Bahadurgarh Suit.
k. Aggrieved by the Judgement and Decree dated 13 th February,
2023, the Defendants preferred an Appeal before the learned District
Judge, Jhajjar, being Civil Appeal No.77 of 2023 (hereinafter referred to
as "the said Civil Appeal"). Further, Rajkumar Gupta also filed cross-
objections in order to set aside the following findings of the
Bahadurgarh Court.
A. "Further since the matter of paternity of parties in relation to
said executant of the said partnership deed is not the subject
matter of the suit and so, findings on these issue shall have no
direct bearings on such matter in dispute if any pending or
otherwise between parties" (Para No.57 at Page No.99 of said
Judgement dated 13-02-2023) and
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B. "Neither marriage of Kundan Lal Laxmi Chand Gupta nor
birth of Mohini & Rohini are in dispute or subject matter of
determination under the issue." (Para No.67 at Page No.123 of
said Judgement dated 13-02-2023)
l. By a Judgement dated 14th August, 2024 passed in the said Civil
Appeal, the District Judge, Jhajjar, upheld the Judgement and Decree
dated 13th February, 2023. However, the cross-objections filed by
Rajkumar were partly allowed.
m. It is the case of the Applicant that he came to know about the
passing of the Judgement and Decree dated 13 th February 2023 in the
Bahadurgarh Suit in favour of the Plaintiff therein as well as the
Judgement and Decree dated 14th August 2024 passed in the said Civil
Appeal by the learned District Judge Jhajjar, from the attorney of the
Plaintiff in the Bahadurgarh Suit, when he met with the Applicant on the
occasion of Holi on 14th March 2025. Thereafter, the said attorney of the
Plaintiff in the Bahadurgarh Suit provided a certified copy of the cross-
objections filed in the said Civil Appeal, a certified copy of the
Judgement dated 14th August 2024 passed by the District Judge, Jhajjar,
in the said Civil Appeal, other documents and proceedings relating to
the Bahadurgarh Suit and the said Civil Appeal to the Applicant.
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n. Further, it is the case of the Applicant that the Original Plaintiffs
and the Applicant had not been aware of the complete details and
particulars of the estate / properties left behind by Shri Kundanlal
Gupta and had made a prayer before this Court for appropriate
directions to the Defendants to furnish the same. However, it is the case
of the Applicant that, during the pendency of the present Suit, the
Defendants disclosed that they had filed Testamentary Petition bearing
No. 481 of 1982 in this Court for obtaining Letters of Administration
from this Court, and, along with the said Petition, they also furnished
the particulars of Properties, Assets and Credits owned and possessed by
the said Kundanlal Laxmichand Gupta and left behind by him at the
time of his death. It is the case of the Plaintiff that it is relevant to place
on record the aforesaid details by way of amendment to Exhibits G, J
and R annexed to the original Plaint for just and proper disposal of the
present case and to do complete justice to the parties to the present Suit.
o. Further, it is the case of the Applicant that the findings returned
and observations made in the Judgement and Decree dated 13 th
February 2023 in the Bahadurgarh Suit are binding on the parties,
unless that are upset, modified or altered by a superior court. It is the
case of the Plaintiff that the observations made and findings returned in
the said Judgement and Decree would remain binding on the
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Defendants herein. As such, to bring the aforesaid facts on record and to
raise a plea of res judicta and estoppel, it is expeditious and necessary
for the Plaintiff to incorporate appropriate pleadings, by way of
amendments, in the Plaint instituted before this Court, and for this
reason also, the Applicant was seeking amendments to the Plaint in the
present Suit.
p. Further, it is the case of the Applicant that on meticulous
examination of the prayers made in the Suit, it was noticed that,
although it was intended to make prayer (d) as an alternative prayer to
prayer (c) of the Plaint, inadvertently, while drafting the alternative
prayer (d) of the Plaint, the same was made as an alternative prayer to
prayers (a), (b) and (c) instead of making it as an alternative prayer to
prayer (c) only. For this purpose also, the Applicant seeks to amend the
Plaint.
3. Further, in the Interim Application, the Applicant has also
sought amendment of the verification clause in the Plaint.
4. The Defendant No.2, Mohini Gupta, has filed an Affidavit dated
25th June 2025 opposing the Interim Application. The Applicant has also filed
a Rejoinder dated 9th July, 2025.
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5. The amendments sought by the Applicant are bifurcated into
four parts.
6. I will deal with the submissions made by the learned counsel for
the parties in respect of each part separately and will also give my findings in
respect of each part separately.
7. FIRST PART
The first part of the amendment is for the purpose of bringing on
records the facts and documents in the Trial and Appeal before the
Courts in Haryana as also the Judgements dated 13 th February 2023 and
14th August 2024 passed in the Trial and Appeal before the Courts in
Haryana. This part also seeks to raise the plea of res judicta and
estoppel.
Submissions of the Applicant on the First Part.
8. Mr.Karan Bhosale, the learned counsel appearing on behalf of
the Applicant, stated that the Bahadurgarh Suit was filed by Raj Kumar
Gupta wherein he sought prayers for declaration and mandatory injunction
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in respect of the original registered Partnership Deed dated 5 th May 1970 of
the partnership firm Kundan Talkies.
9. Mr.Bhosale submitted that Issue Nos. 1 and 6 framed in the
Bahadurgarh Suit overlap with Issue No. 2 to 8 in the present Suit. He
submitted that the same was evident from the comparative chart mentioned
in the Affidavit in Rejoinder and from the Transfer Petition in the Supreme
Court preferred by the Defendants.
10. Mr.Bhosale submitted that the Defendants to the present Suit
filed a Transfer Petition (Civil) No. 1026/2021 in the Hon'ble Supreme Court,
wherein they have taken up the following stands:
"(i) The Issues in the Bahadurgarh Suit are substantially
covered in the Bombay Suit.
(ii) All the parties in the Bombay Suit and Bahadurgarh Suit are
one and the same.
(iii) Any decision in the Bahadurgarh Suit will substantially
affect the Bombay Suit including proof towards legitimacy of the
claims of the Defendants.
iv) The Defendants in the Transfer Petition stated that "As the
subject matter of Bahadurgarh suit is substantially covered by
the earlier suit filed in Mumbai and parties in Bahadurgarh suit
are parties in Mumbai suit, it will be appropriate and convenient
to the parties including defendants (Mohini Gupta and Rohini
Gupta) that the second suit filed at Bahadurgarh covering
substantially the same issues as the original suit filed in 1985 is
transferred to Mumbai"."
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11. Mr.Bhosale submitted that the Petitioners to the Transfer
Petition, who are also the Defendants in the present Suit, cannot take
conflicting stands with respect to the subject matters of the present Suit and
the Bahadurgarh Suit and overlapping Issues therein.
12. Mr.Bhosale submitted that the Transfer Petition was disposed of
by an Order dated 11th August 2021 passed by the Hon'ble Supreme Court by
stating that:
"But the prayer in the suit pending on the file of the Court at
Bahadurgarh, Jhajjar District is in respect of partnership deed
registered in the office of the Sub-Registrar, Jhajjar, Haryana.
Therefore, the same cannot be transferred to Bombay.
There are other remedies open to the petitioners in respect of the
suit whose transfer is sought. Therefore, leaving it open to the
petitioners to exhaust those remedies, this Transfer petition is
dismissed."
13. Mr.Bhosale further submitted that the Bahadurgarh Suit
culminated into the Judgement dated 13 th February 2023, wherein Issue Nos.
1 and 6, dealing with the different names of Kundanlal Gupta and his original
family history/pedigree table and lineage, were decided, wherein lineage of
Kundanlal Gupta S/o Harnam Singh alias Kundanlal Laxmichand Gupta son
of Laxmichand Motilal Gupta was accepted, as claimed by the Plaintiff and
depicted in the Pedigree table at paragraph 2 of the Judgement dated 13 th
February 2023.
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14. Mr.Bhosale submitted that the Bahadurgarh Court concluded
that Raj Kumar Gupta was able to prove his case under Issue No. 1, whereas
the Defendants therein (the Defendants to this Suit) failed to prove their case
under Issue No. 6. This finding in the Judgement dated 13 th February 2023
was confirmed in the First Appeal by the Judgement dated 14th August 2024.
15. Mr.Bhosale further submitted that, although by the Judgement
dated 13th February 2023, the Court held that the findings with respect to
paternity of parties will not have a bearing on such matters in dispute if
pending between the parties therein, however, against this portion of the
Judgement, cross objections were preferred by the Plaintiff to the
Bahadurgarh Suit, which were decided by the Judgement in Appeal dated 14 th
August 2024. In this Judgement, the Court specifically watered down the
aforementioned portion of the Judgement dated 13 th February 2023 and
stated that the findings with respect to Issue Nos. 1 and 6 can be used in
other proceedings.
16. Mr.Bhosale further submitted that the Defendants have
preferred a Second Appeal against the Judgement dated 14 th August 2024,
which is pending admission before the Punjab and Haryana High Court. He
also submitted that, for almost a year, the Defendants have been seeking
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adjournments in the Second Appeal. Mr.Bhosale submitted that, on one
hand, the Defendants have been arguing that reliance cannot be placed on
the Judgements dated 13th February 2023 and 14th August 2024 on account
of the pending Second Appeal, and on the other hand, they have been seeking
repeated adjournments for around a year in the pending Second Appeal,
without pressing for any interim relief therein.
17. Mr.Bhosale submitted that, in view of the above, the Schedule to
the present Interim Application seeks to bring on record the facts and
background which are necessary to set up the plea of res judicata and
estoppel on account of the passing of the said Judgements dated 13 th
February 2023 and 14th August 2024, along with the underlying documents
leading to these judgements.
18. Mr.Bhosale submitted that, in the Schedule to the Interim
Application, the Applicants have specifically pleaded the case of res judicata,
which, as per settled law, has to be specifically pleaded.
19. In support of his submissions in respect of the First Part of the
amendment, Mr.Bhosale relied upon the following judgements:
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(i) Life Insurance Corporation of India v Sanjeev Builders Private Limited
(2022) 16 SCC 1.
(ii) Omprakash Gupta v Ranbir B. Goyal, (2002) 2 SCC 256
(iii) Pulavarthi Venkata Subbarao and Ors. v. Valluri Jagannadha Rao AIR 67
SCC 591.
(iv) Pandit Ishwardas v. State of Madhya Pradesh & Ors, (1979) 4 SCC 163
(v) Tirumala Tirupati Devasthanam v. K. M. Krisimaiah, (1998) 3 SCC 331
(vi) Madhukar D. Shende v. Tarabal Aba Shedage (2002) 2 SCC 85
(vii) Chandramohan Ramchandra Patil v. Bapu Koyappa Patil, (2003) 3 SCC
(viii) Bhanu Kumar Jain v. Archana Kumar & Anr., (2005) 1 SCC 787
Submissions of the Defendants on the First Part
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20. On the other hand, Mr. Kirti Munshi, the learned Senior
Counsel appearing on behalf of the Defendants, opposed the granting of any
reliefs in the Interim Application.
21. Mr.Munshi first relied upon the Judgement of the Hon'ble
Supreme Court in Revajeetu Builders and Developers v Narayanswamy and
Sons and Ors (2009) 10 SCC 84 which sets out the factors to be taken into
consideration while dealing with applications for amendment. Mr.Munshi
submitted that these include whether the amendment sought is imperative,
and whether it is bonafide or malafide. Mr.Munshi further submitted that,
additionally, the amendment should not cause prejudice to the other side
which cannot be compensated adequately in terms of money. Mr.Munshi
submitted that, in the facts and circumstances of the present case, if the trial
of the present Suit outlives the Defendants who are 70 and 64 years old
respectively, and who are both spinsters with no legal heirs, and, since
interim orders are operative, the Defendants would be gravely prejudiced.
22. Mr.Munshi submitted that, if the commencement of the trial in
the present Suit is delayed any further, particularly keeping in mind that the
Suit is prior to the Bahadurgarh Suit and is filed more than 40 years back,
there are decreasing prospects of its disposal during the lifetime of the
Defendants, which seems to be an endeavour of the Applicant. Mr.Munshi
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submitted that paragraph 64 of the said Judgement in Revajeetu Builders
and Developers (Supra) mandates that the Court should never permit
malafide, worthless and/or dishonest amendments.
23. Mr.Munshi submitted that res judicata is a defence available to
the Defendant and not a plea which is available to the Plaintiff.
24. Mr.Munshi submitted that if the Plaintiff feels that a particular
issue or issues in the present Suit are conclusively determined in the
Bahadurgarh Suit, it is always open for the Applicant to refrain from leading
evidence in the present Suit to the extent that, according to him, such issue or
issues have already been decided in the Bahadurgarh Suit, tender the
Judgements passed therein and argue the point on the basis that no evidence
is required to be led in the present Suit on such issue or issues.
25. Mr.Munshi submitted that this course of action is something
which the Plaintiff herein can always consider at the evidence and argument
stage and does not require an amendment to the pleadings, if such
Judgement/s satisfy the tests of Sections 40 to 44 of the Indian Evidence Act
which are pari materia with Sections 34 to 38 of the Bharatiya Sakshya
Adhiniyam, 2023.
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26. Mr.Munshi submitted that all such questions would arise only at
the evidence stage when the proof of facts in issue/ issues or there being no
requirement to prove certain facts in issue/issues is considered.
27. Next, Mr.Munshi submitted that a pleading must state only
material facts and not evidence and in this context referred to Order 6 Rule 2
of the Code of Civil Procedure 1908 and the judgement of the Supreme Curt
in Mayar (HK) Ltd v Owners and Parties, Vessel MV Fortune Express (2006)
3 SCC 100.
28. Mr.Munshi submitted that it is trite law that such material facts
must relate to the cause of action and not to proof of facts. Whilst the former
must be pleaded, there is no requirement for the latter to be pleaded since it
constitutes evidence.
29. Mr.Munshi further submitted that any relevant fact which seeks
to prove material facts or to argue that the onus to prove such material facts
no longer subsists on the Plaintiff, like the records and the orders in the
Bahadurgarh Suit in the present case, which are sought to be introduced by
this amendment, are not required to be inserted in the pleading.
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30. Mr.Munshi submitted that the Partnership Deed, pleadings and
orders in the Bahadurgarh Suit can always be tendered in evidence by the
Plaintiff at the appropriate time if he so desires.
31. Mr.Munshi further submitted that a perusal of paragraph 9 of
the Interim Application demonstrates that the ostensible reason for
introducing the record and orders of the Bahadurgarh Suit proceedings is for
the purpose of being examined as evidence in the present Suit. Mr.Munshi
submitted that this does not warrant an amendment.
32. Mr.Munshi submitted that the doctrine of res judicata has no
application as a justification for the present amendment. Mr.Munshi
submitted that, in the facts and circumstances of the present case, there is no
res judicata as judicially understood. He submitted that the cause of action,
the frame of the two suits, the parties and the capacity in which the
Defendants are sued is completely different in the two Suits.
33. Mr.Munshi submitted that the frame of the two Suits is different
as the present Suit is filed by an alleged legatee against the heirs of Kundanlal
Laxmichand Gupta, whereas, the Bahadurgarh Suit is filed by a partner of the
firm 'Kundan Talkies' against the custodian of the Partnership Deed. The
Plaintiffs in both the suits are also admittedly different. The capacity in which
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the Defendants have been sued in both the suits is also not the same. Hence,
there can be no res judicata in these circumstances. In support of this
submission, Mr.Munshi relied upon the following judgements:
(i) Sara Rauf and Anr v Durgashankar Ganeshlal Shroff(2007) 4 Mah L.J. 129
(ii) Nand Ram v Jagdish Prasad (2020) 9 SCC 393
(iii) Sajjadanshin Sayed Md. BE EDR v Musa Dadabhai Ummer and Ors
(2000) 3 SCC 350
(iv) Asrar Ahmed v Durgah Committee, Ajmer AIR 1947 PC 1
(v) Ashok Kumar Jaiswal and Anr v Matru Prosad Show (2024) SCC Online
Cal 2409
34. Next, Mr.Munshi submitted that there can be no res judicata
since there is no finality to the Bahadurgarh proceedings since an appeal has
been filed in the Punjab & Haryana High Court, which is pending. In this
regard, Mr.Munshi relied upon the Judgements in State of Bihar v Ramgarh
Farms and Industries Ltd AIR 1961 Pat 302 and Merla Janikamma v Sri
Inuganti Venkata Rajagopala Chinnaro Garu AIR 1945 Mad 62.
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35. Mr.Munshi further submitted that res judicata is a species of
cause of action estoppel. Res judicata normally applies to the whole suit or
the whole defence, whilst cause of action estoppel may be pressed into service
in respect of some of the issues but not the whole suit or whole defence.
Mr.Munshi submitted that, however, the test for determining whether there
is cause of action estoppel is the same as the test laid down for determining
whether there is res judicata, the only difference being that the first does not
dispose of the whole suit whilst the second does.
36. Mr.Munshi submitted that the issue estoppel sought to be
pleaded in the present case as a justification for the amendment is a cause of
action estoppel and not estoppel as understood under Section 115 of the
Indian Evidence Act. If the estoppel was of the kind explained in Section 115
of the Indian Evidence Act and those facts were sought to be introduced as a
pleading, the matter may have required to be viewed differently if issues had
not already been framed, and the facts and circumstances of the estoppel
pleaded were not subsequent to the filing of the present Suit, since the cause
of action for the present Suit gets frozen on the date of its filing.
37. Mr.Munshi submitted that since the issue estoppel sought to be
pleaded arises out of judgements in the Bahadurgarh Suit, such facts and
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events are not necessary to be introduced as a part of the pleading and can
only be examined as evidence if they satisfy the requirements of Sections 40
to 44 of the Indian Evidence Act which are pari materia with Sections 34 to
38 of the Bharatiya Sakshya Adhiniyam, 2023.
38. Further, Mr.Munshi submitted that the Applicant informed Raj
Kumar, who is the Plaintiff in the Bahadurgarh Suit, of the existence of the
Partnership Deed in 2008. Mr.Munshi submitted that the Applicant in the
present Suit feigns ignorance of the Bahadurgarh Suit till August 2019. Given
that Raj Kumar's constituted attorney conducting the Bahadurgarh Suit was
the son of the Applicant in the present Suit, and the Applicant in the present
Suit was the main witness, the story canvassed in the Interim Application is
highly unbelievable and obviously motivated to delay the commencement of
trial of the present Suit.
39. Mr.Munshi submitted that all the living persons mentioned in
the Pedigree Table in the Plaint are one cohesive unit and acting in close
concert.
40. Mr.Munshi submitted that the motive for filing the Bahadurgarh
Suit was to obtain custody of the original Partnership Deed which is in the
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Defendants' custody so that it is not available as evidence for the examination
of this Court at the time of trial of the present Suit.
41. Mr.Munshi submitted that, on the one hand, the Applicant has
engineered an expeditious hearing and decision in the Bahadurgarh
proceedings, whilst, on the other hand, he was adopting every possible
delaying tactic to defer commencement of trial in the present Suit.
42. Mr.Munshi also relied upon the judgement of the Hon'ble
Supreme Court in Union of India v Pramod Gupta (2005) 12 SCC 1 which
held that delay and laches on the part of the parties to the proceedings would
also be a relevant factor for allowing or disallowing an application for
amendment of the pleadings.
Findings on the first part
43. This part of the amendment is sought to bring on record the
subsequent facts in terms of the Bahadurgarh Suit. According to the
Applicant, it is necessary to bring these facts on record to determine the real
questions in controversy in the present Suit and to set up the plea of res
judicata and estoppel.
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44. In its Judgement in Life Insurance Corporation of India (Supra),
the Hon'ble Supreme Court has laid down the law regarding amendments.
The relevant portion of the Judgement is as follows:
"71. Our final conclusions may be summed up thus:
71.1. Order 2 Rule 2 CPC operates as a bar against a
subsequent suit if the requisite conditions for application thereof
are satisfied and the field of amendment of pleadings falls far
beyond its purview. The plea of amendment being barred under
Order 2 Rule 2 CPC is, thus, misconceived and hence negatived.
71.2. All amendments are to be allowed which are necessary for
determining the real question in controversy provided it does not
cause injustice or prejudice to the other side. This is mandatory,
as is apparent from the use of the word "shall", in the latter part
of Order 6 Rule 17 CPC.
71.3. The prayer for amendment is to be allowed:
71.3.1. If the amendment is required for effective and proper
adjudication of the controversy between the parties.
71.3.2. To avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment do not
seek to withdraw any clear admission made by the party which
confers a right on the other side, and
(c) the amendment does not raise a time-barred claim, resulting
in divesting of the other side of a valuable accrued right (in
certain situations).
71.4. A prayer for amendment is generally required to be
allowed unless:
71.4.1. By the amendment, a time-barred claim is sought to be
introduced, in which case the fact that the claim would be time-
barred becomes a relevant factor for consideration.
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71.4.2. The amendment changes the nature of the suit.
71.4.3. The prayer for amendment is mala fide, or
71.4.4. By the amendment, the other side loses a valid defence.
71.5. In dealing with a prayer for amendment of pleadings, the
court should avoid a hypertechnical approach, and is ordinarily
required to be liberal especially where the opposite party can be
compensated by costs.
71.6. Where the amendment would enable the court to pin-
pointedly consider the dispute and would aid in rendering a
more satisfactory decision, the prayer for amendment should be
allowed.
71.7. Where the amendment merely sought to introduce an
additional or a new approach without introducing a time-barred
cause of action, the amendment is liable to be allowed even after
expiry of limitation.
71.8. Amendment may be justifiably allowed where it is intended
to rectify the absence of material particulars in the plaint.
71.9. Delay in applying for amendment alone is not a ground to
disallow the prayer. Where the aspect of delay is arguable, the
prayer for amendment could be allowed and the issue of
limitation framed separately for decision.
71.10. Where the amendment changes the nature of the suit or
the cause of action, so as to set up an entirely new case, foreign
to the case set up in the plaint, the amendment must be
disallowed. Where, however, the amendment sought is only with
respect to the relief in the plaint, and is predicated on facts
which are already pleaded in the plaint, ordinarily the
amendment is required to be allowed.
71.11. Where the amendment is sought before commencement of
trial, the court is required to be liberal in its approach. The
court is required to bear in mind the fact that the opposite party
would have a chance to meet the case set up in amendment. As
such, where the amendment does not result in irreparable
prejudice to the opposite party, or divest the opposite party of an
advantage which it had secured as a result of an admission by
the party seeking amendment, the amendment is required to be
allowed. Equally, where the amendment is necessary for the
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court to effectively adjudicate on the main issues in controversy
between the parties, the amendment should be allowed. (See
Vijay Gupta v. Gagninder Kr. Gandhi.)."
45. In Life Insurance Corporation of India (Supra), the Hon'ble
Supreme Court has held that all amendments are to be allowed which are
necessary for determining the real question in controversy provided it does
not cause injustice or prejudice to the other side. Further, it is held that, if the
amendment is required for effective and proper adjudication of the
controversy between the parties, the same should be allowed. The Hon'ble
Supreme Court has further held that, in dealing with a prayer for amendment
of pleadings, the court should avoid a hypertechnical approach, and is
ordinarily required to be liberal, especially where the opposite party can be
compensated by costs. The Hon'ble Supreme Court has further held that if
the amendment is sought before the commencement of the trial, the Court is
required to be liberal in its approach. The Court is required to bear in mind
the fact that the opposite party would have a chance to meet the case set up in
amendment.
46. In the present case, the amendment in the first part is sought
before the commencement of the trial in the Suit and, therefore, the Court is
required to be liberal in its approach. Further, the Court should avoid a
hypertechnical approach, and is ordinarily required to be liberal, where the
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opposite party can be compensated by costs. Further, the Court is required to
bear in mind the fact that the opposite party would have a chance to meet the
case set up in amendment.
47. In the present case, a perusal of the amendments, which are
sought in the first part by the Applicant, shows that the amendment is
required for the effective and proper adjudication of the controversy between
the parties. Further, the amendment is also required to determine the real
questions in controversy between the parties. The amendment is further
required to support the pleas of res judicata and estoppel sought to be set up
by the Applicant. In these circumstances, in the light of the law laid down in
Life Insurance Corporation of India (Supra), the amendment in the first part
would have to be allowed.
48. Further, paragraph 12 of the Judgement of the Hon'ble Supreme
Court in Omprakash Gupta (Supra) reads as under:
"12. Such subsequent event may be one purely of law or founded
on facts. In the former case, the court may take judicial notice of
the event and before acting thereon put the parties on notice of
how the change in law is going to affect the rights and
obligations of the parties and modify or mould the course of
litigation or the relief so as to bring it in conformity with the
law. In the latter case, the party relying on the subsequent event,
which consists of facts not beyond pale of controversy either as
to their existence or in their impact, is expected to have resort to
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amendment of pleadings under Order 6 Rule 17 CPC. Such
subsequent event, the Court may permit being introduced into
the pleadings by way of amendment as it would be necessary to
do so for the purpose of determining real questions in
controversy between the parties. In Trojan & Co. v. RM. N.N.
Nagappa Chettiar this Court has held that the decision of a case
cannot be based on grounds outside the pleadings of the parties
and it is the case pleaded that has to be found; without the
amendment of the pleadings the Court would not be entitled to
modify or alter the relief. In Sri Mahant Govind Rao v. Sita Ram
Kesho Their Lordships observed that, as a rule, relief not
founded on the pleadings should not be granted."
49. In Omprakash Gupta (Supra), the Hon'ble Supreme Court has
held that, in the case of subsequent events founded on facts, the party relying
on the subsequent events, which consist of facts not beyond pale of
controversy either as to their existence or in their impact, is expected to have
resort to amendment of pleadings under Order VI Rule 17 of the Code of Civil
Procedure, 1908. Further, the Hon'ble Supreme Court has held that such
subsequent events the Court may permit being introduced into the pleadings
by way of amendment as it would be necessary to do so for the purpose of
determining the real questions in controversy between the parties.
50. In the present case, the Applicant is seeking to bring on record
the subsequent events founded on facts which are not disputed. Such
subsequent events are necessary for the purpose of determining the real
question in controversy between the parties. For this reason also, in my view,
the amendment in the first part must be allowed.
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51. Mr.Munshi, the learned counsel appearing on behalf of the
Defendants, has opposed the amendment on the ground that, if the
amendment is allowed, it would delay the trial of the Suit and the Suit would
outlive the Defendants, who are 70 and 64 years old, thereby causing
prejudice to the Defendants. Mr.Munshi also submitted that the Applicant is
purposely seeking to delay the trial of the Suit so that the Suit outlives the
Defendants. In this context, Mr.Munshi has relied upon the judgement of the
Hon'ble Supreme Court in Revajeetu Builders and Developers (Supra).
Further, Mr.Munshi also submitted that delay and laches would be a relevant
factor for allowing or disallowing the application for amendment of
pleadings, and, in this context, has relied upon the Judgement of the Hon'ble
Supreme Court in Pramod Gupta (Supra).
52. Thus, it is the case of the Defendants that the amendment should
not allowed on the ground of delay. In Life Insurance Corporation of India
(Supra), the Hon'ble Supreme Court has held that delay in applying for
amendment alone is not a ground to disallow the prayer. Further, in Pramod
Gupta (Supra), the Hon'ble Supreme Court has held that delay would be a
relevant factor and the Court has to apply its mind to the delay. In Revajeetu
Builders and Developers (Supra), the Hon'ble Supreme Court has held that
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the amendment should not prejudice the other side. In my view, apart from
the law laid down by the Hon'ble Supreme Court in Life Insurance
Corporation of India (Supra), that delay in applying for amendment alone
would not be a ground to disallow the amendment, even if I accept that there
is delay on the part of the Applicant, no prejudice would be caused to the
Defendants, especially since the amendment is sought prior to the trial and
the Defendants can be compensated with costs. Further, the granting of the
amendment may delay the trial for a few months but the same cannot be said
to be a cause for the Suit outliving the Defendants.
53. The next submission of Mr.Munshi in respect of the
amendments sought in the first part is that the amendments are in the form
of evidence and not pleadings. In this context, it is important to note that the
Applicant is seeking the amendments in the first part in order to raise the
pleas of res judicata and estoppel. A perusal of the first part of the Schedule
to the Interim Application shows that the Applicant has, by way of the
proposed amendments, sought to plead facts which would enable him to raise
the pleas of res judicata and estoppel. It is well settled in law that res judicata
and estoppel have to be pleaded by a party to the proceedings. The Applicant
has sought to do so in the proposed amendments. For these reasons, I reject
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the submission of the Defendants that the amendment is in the form of
evidence and not pleadings.
54. The next submission of Mr.Munshi for opposing the amendment
in the first part is that there is no res judicata in the present case. It is the
case of the Defendants that, in the facts and circumstances of the present
case, there is no res judicata or issue estoppel as judicially understood and,
therefore, the amendments should not be allowed. In other words, it is the
case of the Defendants that, even if the amendments are allowed, the
Applicant cannot claim res judicata or issue estoppel. The Defendants have
referred to various judgements in that regard. In my view, this is an
argument regarding the merits of the proposed amendments and cannot be
an argument for allowing or rejecting the amendments. Even presuming that
the Applicant fails with respect to his pleas of res judicata and issue estoppel,
the same cannot be a ground for rejecting the proposed amendments. All
that this Court has to see is whether the amendments should be allowed
keeping in mind the principles laid down in this regard by the judgements of
the Hon'ble Supreme Court and especially in Life Insurance Corporation of
India (Supra). For all these reasons, I am not dealing with the judgements
cited by the Defendants in that regard.
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55. For all the aforesaid reasons, the amendments sought in the first
part of the Schedule to the Interim Application are required to be allowed
subject to payment of costs by the Applicant.
Second Part.
56. The second part of the amendment includes Serial Nos.2 to 4
and 6 of the Schedule to the Interim Application. By these amendments, the
Applicant seeks compensation and disclosure of assets of Shri Kundanlal
Gupta, which, according to the Applicant, have been transacted wrongly by
the Defendants. The Applicant also seeks to better describe some of the suit
properties by modifying Exhibits G, J & R to the Plaint.
Submissions of the Applicant on the Second Part.
57. Mr.Bhosale submitted that this amendment is an extension of
the already existing pleadings and prayers since it relates to properties of
Kundanlal Gupta, which, according to the Applicant, have been wrongly
transacted by the Defendants during the pendency of the present Suit.
Mr.Bhosale submitted that the amendments also seek to introduce a prayer
for compensation for wrongful transaction and disclosure of the said
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transaction. Mr.Bhosale further submitted that these amendments also seek
to better describe some of the properties forming a part of the estate of the
deceased Kundanlal Gupta and should not be disallowed on the basis of any
alleged delay to bring the same on record, considering the stage of the
present Suit which is at a pre-trial stage. In support of these submissions,
Mr.Bhosale relied upon the judgements of the Hon'ble Supreme Court in
Varun Pahwa v Renu Chaudhary (2019) 15 SCC 628 and Punjab National
Bank v Indian Bank & Anr. (2003) 6 SCC 79 .
Submission of the Defendants on the second part
58. Mr.Munshi opposed the amendments sought in the second part.
He submitted that the same ought not to be permitted to be introduced as an
amendment at this stage since the Applicant had knowledge of the properties
mentioned in the amended Exhibits G, J and R right from 1986 and as this
enquiry was already covered by prayer (e) of the Plaint in the present Suit.
Mr.Munshi submitted that a comparison of the Schedules annexed to
Testamentary Petition No.15 of 1986 filed by the Defendants would
demonstrate that there is no new property mentioned in modified Exhibits G,
J and R. Mr.Munshi submitted that, hence, on the ground of being belated
and unnecessary, this amendment should not be permitted as it will
unnecessarily delay the commencement of trial.
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59. As regards new para 21A and 21B sought to be introduced by way
of the amendment, Mr.Munshi submitted that the same contain only bald
averments, without material particulars, and are in the nature of legal
submissions. Mr.Munshi submitted that, hence, it was not necessary to
introduce them by way of an amendment.
60. As far as Serial No.4 of the Schedule is concerned, Mr.Munshi
submitted that the same contained legal submissions and that the last part of
the paragraph, which suggests the purported reliefs sought, is not necessary
in view of the existing prayers (e) and (g) of the present Suit.
61. Mr.Munshi also submitted that Serial No.6 of the Schedule is
covered by prayer (g) of the present Suit and does not warrant any
amendment to be made for this purpose.
Findings on second part
62. The second part includes Serial Nos.2 to 4 and 6 of the Schedule
to the Interim Application. In these proposed amendments, the Applicant
seeks compensation and disclosure of assets of Kundanlal Gupta which,
according to the Applicant, have been wrongly transacted by the Defendants.
The Applicant further seeks to better describe some of the suit properties by
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modifying Exhibits G, J & R to the Plaint. Further, the Applicant seeks to
carry out consequential amendments by adding prayer clause (g) for
disclosure of all particulars of all transactions made by the Defendants in
respect of the assets of Kundalal Gupta.
63. The main submission of the Defendants is that these
amendments are not necessary. These amendments contains averments and
reliefs in respect of the assets of Kundanlal Gupta, in addition to such
averments and reliefs which are already in existence in the Plaint. Therefore,
they do not set up a new case. These amendments are required for
determining the real questions in controversy in the Suit and also for
effective and proper adjudication of the controversy between the parties in
respect of the assets of Kundanlal Gupta. In my view, for all these reasons,
the amendments are required to be allowed. This is also laid down by the
Hon'ble Supreme Court in Life Insurance Corporation of India (Supra).
Third part
64. The amendments in the third part are found in Serial No.5 of the
Schedule to the Interim Application. They seek to amend prayer (d) of the
original Plaint.
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Submissions of the Applicant on the third part
65. Mr.Bhosale submitted that the amendment to prayer clause (d)
only seeks to delete the words "in the alternative to prayer clauses (a), (b) ..."
since, on reading of prayer clauses (a), (b), (c) and (d) , prayer clause (d) is in
the alternative to only prayer clause (c) and not to prayer clauses (a) and (b).
66. Mr.Bhosale submitted that, since this amendment is sought at a
pre-trial stage, the same should be allowed.
Submissions of the Defendants on the third part
67. Mr.Munshi submitted that the said amendment is not necessary
since the Bahadurgarh proceedings have not attained finality and the Appeal
is pending in the Punjab and Haryana High Court.
Findings on the third part
68. The amendment in the third part only seeks to rectify an error
which would help in proper adjudication of the controversy between the
parties. Since this amendment is sought at a pre-trial stage, and causes no
prejudice to the Defendants, the same is required to be allowed in the light of
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the law laid down by the Hon'ble Supreme Court in Life Insurance
Corporation of India (Supra).
Fourth part
69. In connection with the amendment sought in the fourth part, at
Serial No. 8 of the Schedule to the Interim Application, Mr. Bhosale
submitted that the same was not being pressed as, if the present Interim
Application is allowed, the Court would in any case permit re-verification of
the Plaint.
70. For all the aforesaid reasons, the amendments sought in the
Interim Application, except the amendment sought at Serial No.8 of the
Schedule to the Interim Application, are required to be allowed.
71. Hence, the following orders are passed:
a. The Interim Application is allowed in terms of prayer (a)
(except in respect of Serial No.8 to the Schedule to the
Interim Application) subject to payment of costs of Rs.
50,000/- by the Applicant to the Defendants. Prayer (a)
reads as under:
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"a. In view of the above conspectus of facts
and circumstances, it is, therefore, most
respectfully prayed that this Hon'ble Court may
kindly be pleased to consider and allow the
Plaintiff to amend the plaint of the instant Suit, as
proposed in the Schedule-I for just and proper
adjudication of the dispute between the parties
and in the interest of justice, equity and fair
play."
b. The amendments be carried out within a period of three
weeks from the date of uploading of this order and a copy of the
amended Plaint be served on the Defendants.
c. The Plaint be re-verified accordingly.
d. In the facts and circumstances of the case, there will be no
order as to costs.
[FIRDOSH P. POONIWALLA, J.]
