Gaj Singh Yadav vs Satish Chander Yadav And Ors.
1997 Latest Caselaw 880 Del

JUDGMENT

J.B. Goel, J.

(1) By this order two applications, Ia No.7801/95 under Section 152 read with Section 151 of the Code of Civil Procedure (for short the 'Code') and Ia No. 1327/97 under Order 6 Rule 17 is for amendment of the first application are being disposed of. These applications have been filed by defendants No. 14 & 16.

(2) The plaintiff had filed a suit for partition of immovable properties situated at Delhi (Schedule A) and houses and agricultural land situated in village kosli, District Rohtak, (Schedule B) left by his deceased grand-father shiv sahai, the common ancestor. Shiv Sahai had three sons, namely, Surat Singh , Naval Singh and Narain Singh. Plaintiff (who is son from his first wife Smt. Hukam Kaur) and defendants 2 to 9 are the heirs from second Wife of Surat Singh; defendants 10 and 11 are descendants/heirs of Naval Singh; while defendants 13 to 16 are the daughters of Narain Singh. Defendants 1 and 12 have died during the trial. Plaintiff had claimed I/12th share out of the share of his father Surat Singh. The suit was being contested by defendants 1 to 9 who had propounded a registered will dated 23.7.1958 executed by Surat Singh alleging that Surat Singh had dis-inherited the plaintiff and bequeathed his property in favour of Shyam Bai and her children but the plaintiff contested the factum and validity of the Will. Other defendants had not opposed the partition. Several issues were framed, struck out, and re-framed and finally the only issue remained was "What are the shares of the parties?" Some affidavits had been filed by the parties in support of their case. On April 4,1989 statements had been made in Court by the plaintiff and on behalf of defendants 2 to 9 and 13 to 16. The plaintiff had made the following statement: "A preliminary decree declaring that the plaintiff is entitled to 300/3600 share in the property mentioned in Schedules A and B and that Sh. Satish Chandra Yadav, defendant No. 2 - 432/3600, Km. Sushila Yadav, defendant No. 3 - 48/3600; Km. Saroj Nalini Yadav, defendant No. 4-48/3600; Smt. Nirmala Yadav, defendant No. 5 - 72/3600; Smt. Anuradha Chaudhary, defendant No. 6 - 16/3600; Smt. Hemangini Dar, defendant Np. 7 - 16/3600; Smt. Mimalini Chaudhary, defendant No. 8 -16/3600; Ma)pr Atul Chaudhary, defendant No. 9 - 312/3600; Smt. Kamla Yadav, defendant No. 10 - 600/ 3600; Ms. Taruna Yadav, defendant No. 11 - 600/3600; Smt. Rajni Yadav, defendantNo. 13-285/3600;Smt.UmaDeviyadav,defenantNo. 14-285/ 3600; Ms. Bina Kumar, defendant No. 15 - 285/3600; Smt. Usha Rani Yadav, defendant No. 16 - 285/3600 of the properties mentioned in Schedule A and B, may be passed. I give up my I /90 share which comes to me out of the share of my father."

On behalf of the defendants 2 to 9 and 13 to 16, their Counsels had made statements agreeing to the statement made by the plaintiff.

(3) On behalf of defendants 13 to 16 besides their Counsel,Wg. Cdr. M.P. Yadav (Retd.) as their General Attorney had also made the following statement: "Out of the free Will and instructions from defendants 13 to 16,1 make this statement that out of the share to which defendants 13 to 16 are entitled, 1 60 may be given to the plaintiff Lt. Col. Gaj Singh Yadav (Retd.)."

These statements were duly recorded and were signed. On 4.4.89 the case was adjourned to 6.4.89 and again to 19.4.89. On 19.4.89 suit was decreed and a preliminary decree was passed in terms of the statements made on 4,4.89 declaring the shares of the parties. The plaintiff thus got 300/3600th share whereas defendants 13 to 16 got 285/3600th share each.

(4) Mr. Justice D.R. Khanna, a retired Judge of this Court was appointed as Commissioner for suggesting-partition of the properties on May 6,1993, who has since given his report, objections.have been filed by some of the parties against the report of the Commissioner.

(5) In the meantime, application being Ia No. 7801/95 has been filed by defendants 14 and 16 (on 31.7.1995) challenging the legality and validity of the statements made on their behalf on 4.4.89 and the preliminary decree passed on 19.4.89 alleging that Shri M.P. Yadav, their attorney was not authorised to make statement on their behalf giving up their 1 /60th share; that he and the plaintiff had acted in collusion and conspiracy in depriving them of their due shares according to the Hindu Succession Act and the admitted facts on record and have desired that their shares be re-determined. Plaintiff in his reply dated 8.9.95 has contested it and disputed the pleas taken in the application and has supported the decree.

(6) By Ia No. 1327/97 tile defendants 14 and 16 are seeking amendment of their earlier application taking additional pleas and for converting the first application under Order 23 Rule 3 also. They inter alia want to take the additional pleas that the decree having been obtained by fraud and collusion on the basis of fraudulent statement given by Shri M.P. Yadav is void and that the decree is in contravention of the provisions of Order 23 Rule 3 of the Code.

(7) Plaintiff has filed reply contesting this application also. Defendants 13 and 15 have also filed reply in Ia No. 7801 /95 contesting the claim of the applicants asserting that Sh. M.P. Yadav was duly authorised to make the statement on their behalf and supporting the decree. LA. No. 1327/97

(8) By this application the applicants want to make the following amendment/ additions:

(1)To change the label of the application from Sections 152 and 151 to that under Order 23 Rule 3 read with Sections 152 and 151 of the Code;

(2)In para 3 of the earlier application they want to add that their 1/12th share was undisputed and that the only dispute was in respect of share of the plaintiff;

(3)Adding new para 6(A) pleading that the decree dated 19.4.1989 being based on fraud and collusion between the plaintiff and Shri M.P. Yadav, Attorney of the applicants who was not authorised vide power of attorney to relinquish or give up any part of their share is void and liable to be set aside.

(4)To add new para 6(B) to the effect that the said decree is in contravention of the statutory provision of amended Order 23 Rule 3 relying on .

(9) I have heard learned Counsel for the parties.

(10) In opposition, the contentions raised are that the proposed amendment is belated, malafide, barred by time, it introduces a new case and new cause of action, seeks to withdraw admissions which, if allowed, would cause prejudice to the plaintiff which is disputed on behalf of the applicants.

(11) A number of case law has been cited for and against the proposed amendments. However, each case is based on its own facts and circumstances.

(12) Rules of pleadings in civil matters are contained in Order 6 of the Code. These provisions are meant to give to each side intimation of the case of the other so that it may be met and to enable Courts to determine what is really at issue between the parties, and to prevent deviation from the course which litigation on particular causes of action must take.

(13) Order 6 Rule 17 provides for amendment of the pleadings at any stage in certain circumstances. This provision is obviously intended for promoting the ends of justice or in other words to prevent miscarriage of justice and for just and proper administration of justice.

(14) The object of the Courts and the rules of procedures is to decide the rights of the parties and not to punish them for their mistakes. In Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, , it has been observed as under: "Rules of procedure are intended to be a hand maid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party unless it is satisfied that the party applying was acting malafide, or that by his blunder, he had caused injury to his opponent which may not be compensated by an order of costs. However, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side."

In A.K. Gupta & Sons Ltd. v. Damodar Valley Corporation Ltd., , it was laid down that in the matter of allowing amendment of pleading the general rule is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new cause of action is barred; where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to a different or additional approach to the same facts, the amendment is allowed even after expiry of the statutory period of limitation; the expression "cause of action" in this context means a new claim made on a new basis constituted by new facts and the word "new case" means new set of ideas.

(15) In M/s. Ganesh Trading Co. v. Moji Ram, , again it was laid down that procedural law is intended to facilitate and not to obstruct the course of substantial justice and even if a party or its Counsel is inefficient in setting out its case initially the error is not incapable of being rectified so long as remedial steps do not injure rights accrued to the other side; defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent; even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none.

(16) In Municipal Corporation of Greater Bombay v. Lala Pancham and Others, , relied on behalf of the plaintiff, the amendment was disallowed where the plaintiff sought to make out a case of fraud for the first time for which there was not the slightest basis in the plaint as it originally stood. In this case also it was observed that Court should be liberal in allowing amendment for the real issues between the parties being tried.

(17) In the case in hand, in the first application the applicants have alleged that they had got undisputed l/12th share in the properties in dispute but Shri. M.P. Yadav acting as their attorney had made a statement on 4.4.89 giving up 1 /60th share out of their share to the plaintiff, which he was not so authorised under the Power of Attorney dated 18.8.84 given to him and thereby reducing their share from I / 12th to 285/3600th which was also against the provisions of Hindu Succession Act and they have also alleged that it was on account of collusion and conspiracy between him and the plaintiff.

(18) First proposed amendment is to convert the application under Order 23 Rule 3 and Sections 152 and 151, Civil Procedure Code which earlier was under Sections 152 and 151 Cpc only. This amendment is necessitated on account of the fourth amendment and that in itself does not make any change on merit. Second proposed amendment seeks to plead additional facts in support of the existing plea about their own right and interest in the property which also does not introduce any new case. By the third proposed amendment, decree is sought to be challenged as void on the additional ground of fraud on the same facts. no new case or cause of action is being in troduced. The merit of this plea can be gone into while deciding the main application and by fourth proposed amendment again on the same facts the decree is challenged as being in contravention of Order 23 Rule 3. Clearly, these amendments do not constitute the addition of a new cause of action or raises a different case but amounts merely to a different or additional approach to the same facts. Questions of the claim of the applicants being time barred when this application was moved or the applicants retracting their admission in the circumstances does not arise. Plaintiff is not being deprived of any of his vested rights. This amendment seems necessary for the purpose of determining real question in controversy between the parties and for a just decision of the matter and cannot be said to be malafide. The plaintiff can be compensated for the inconvenience caused to him and for the delay in applying for amendment by way of costs.

(19) This application is, accordingly, allowed subject to payment of Rs.l,000.00 as costs by the applicants to the plaintiff.

(20) Amended application has already been filed. The same is taken on record. LA. No. 7801195

(21) This application has been allowed to be amended and an amended application being I.A. No. 1328/97 has been filed. This application having become infructous is disposed of accordingly. LA. No. 1328/97

(22) Notice of this application to the non-applicants through their Counsel.

(23) Replies, if any, be filed within two weeks and rejoinder, if any, before the next date. Be listed before the appropriate Bench for further directions on 17.11.1997.