Capricorn One & Anr. vs Shri Raghbir Singh And Ors.
1999 Latest Caselaw 580 Del

ORDER

Vikramajit Sen, J.

1. This is an application for amendment of the plaint under Order 6 Rule 17 of the Code of Civil Procedure. The later half of this Rule makes it mandatory for allowing that all amendments necessary for the purpose of determining the real question in controversy between the parties. The Hon'ble Supreme Court in its various decisions has laid down that amendments to pleadings should be liberally granted wherever justice so required. Undoubtedly, in the context of permitting amendments to side can be compensated by the panacea of costs. Where, however, the proposed amendment would introduce a totally different, new and inconsistent case, costs would not be an appropriate recompense and, hence the amendment of this nature ought not to be allowed.

2. By this application the plaintiff prays, apart from other incidental changes, for the deletion of the words "out of Khasra No. 207 (min) "and substitution in its place of the words "bearing (survey) plot No. Old F-216 new 126 Katwaria Sarai, Tehsil Mehrauli, New Delhi". The prayer clause is also sought to be amended in order to incorporate this change.

3. The objection of the defendant, succinctly stated is that defendant No. 1 has offered to sell two plots to the plaintiff at the following rates:

1. Approximately 432 sq. Yards in Khasra No. 207 (min), Katwaria Sarai, New Delhi at the rate of Rs. 5,500/- per sq. yard.

2. Approximately 536 Sq. yards in Khasra No. 162 (min) Katwaria Sarai, New Delhi also known as (F-126) at the rate of Rs. 6,000/- per sq. yard.

3A. It is further stated that the plaintiff showed interest and accepted the offer pertaining to Khasra No. 207 (min) and that it was for this reason that the injunction was sought in respect of Khasra No. 207 measuring 432 sq. yards in Village Katawaria Sarai, Tehsil Mehrauli, New Delhi. It is further contended that the plaintiffs, for mala fide reasons, by means of this application, are seeking to introduce a totally different,new and inconsistent case and hence the application ought not to be allowed.

4. Ex parte orders were passed in respect of Khasra No. 207 (min) and these were subsequently confirmed by order dated 16.10.1995. At that stage the defendant had stressed that the land comprised in Khasra No. 207 and Khasra No. 162 were mutually distinct. The ex parte interim orders were, in fact, confirmed on the submission made by Mr. D.S. Narula, counsel for the defendant that he has no objection for its grant with reference to Khasra No. 207. In the appeal filed against this order the controversy pertaining to the distinction between Khasra No. 162 and Khasra No. 207 was highlighted but the interim order granted by the Appellate Court, resting with the order dated 14.10.1997, made the injunction order operative on defendants 2 and 3 until further orders "pertaining to the suit property which is the subject matter of the suit as described in the plaint and also as covered by the agreement between the appellant and respondent No. 1".

5. During the course of the hearing of this application I put it to counsel appearing for the parties that it would be appropriate to issue a fresh commission with the specific purpose of ascertaining the existence of two separate pieces of land. Learned counsel appearing for the defendants jointly accepted the relevance of this exercise and further expressed their willingness that the previous Local Commissioner may again be appointed for this purpose. It was contended by them that since the previous Commission was executed without notice to them, the existence of two separate piece of land could not be shown to the Local Commissioner and hence was reported upon. Learned counsel for the plaintiff Ms. Pinki Anand, however, stated that issuance of a fresh Commission at this stage would serve no purpose. I have no option but to draw an inference adverse to the case now being put forward by the plaintiff.

6. An affidavit was filed by Raghubir Singh, defendant, on 16.5.1994 reiterating the existence of two separate pieces of land in his ownership. Annexure "A" to the said affidavit also discloses the existence of two pieces of land, Khasra 207 and 162, the latter being larger than the former. Annexure "B" to this affidavit are two Sale Deeds dated 7.1.1994 pertaining to Khasra Nos. 162 the recital in which mentioned "property bearing No. F-126, measuring 266 Sq. Yards out of Khasra No. 162".

7. By order dated 24.5.1994 the learned counsel for the plaintiff was required to file the revenue map of Village Katwaria Sarai which indicated Khasra No. are not the plot No. These directions have not been complied with. There is also no compliance with the direction given on 13.7.1994 with regard to the presence in court of the person who had signed the agreement on behalf of the plaintiff.

8. I cannot, therefore, but draw an inference adverse to the plaintiff for not filing the plans immediately, in compliance with previous orders of this Court.

9. Learned counsel for the plaintiff/applicant has drawn my attention to the contents of Form 37A where Khasra No. 126 finds mention. In answer, the learned counsel for the defendant state that as is the prevailing practice the seller normally signs blank forms and, therefore, this document is not worthy of reliance. I am of the view that too much emphasis ought not to be drawn from this Form 37A, especially since, as has been submitted by counsel for the defendant, this From was not filed with the Appropriate Authority.

10. Learned counsel for the plaintiff vehemently argued that where there is a discrepancy between the numbers and the boundaries mentioned in the plaint the latter must prevail. In support of this contention, she cited the decision of P.N. Nag, J. in Bimla Khanna Vs. M.S. Pawar & Ors. reported as 48 (92) Delhi Law Times, 272. This decision is of no assistance in the present case since in that case there was admittedly only one property in question and the controversy were whether it was T-618-A or T-618-B. In the case in hand from the inception, there is a serious controversy regarding the existence of two separate properties. Furthermore, the boundaries as contained in the plan are so vague that they fail to shed any light on the present controversy. Reliance was further sought by learned counsel for the plaintiff on a decision of Hon'ble Mr. Justice Avadh Behari Rohtagi reported in Bhagwan Dass & Anr. Vs. Union of India, A.I.R. 1980 Delhi 197 where it was held that Khasra Nos. could be allowed to be amended. This decision has no application to the controversy in the present case. Hence the defendants have been asserting the existence of two separate properties. Reliance was also placed by the learned counsel for the plaintiff on Umsala Bibi & Ors. Vs. M. Jayaraman, . This case is also not relevant for the same reasons.

11. In Krishan Lal Datta Vs. Behari Lal Chhabra, P.K.

Bahri J. after adverting to the boundaries given in the plaint of the property in dispute, and after comparing them with plan Ex. PA2 came to the conclusion that since there was no difficulty in the Decree Holder getting possession in accordance with the plan, confusion about number of the plot could not be gone into at the time of execution. By similar reasoning S.S. Chadha J. in Chhajju Ram Vs. Lachhman Singh, had held there was no ambiguity in an agreement to sell when the boundaries clearly indicated the land in question.

12. I am in respectful agreement with these decisions. But how are they to be applied to the facts of the present case? It is submitted before me by the counsel for the non-applicants that Khasra No. 207 (min) and Khasra No. 162 (min) also known as (F. 126) are a/couple of Kilometre apart and Defendant No. 1 had offered to sell either/both the plots. For the purposes of lucidity the relevant Portion of the reply is extracted below :

"(i) Sometimes in the beginning of 1990, one Shri Vinod Vershneya had approached Defendant No. 1 with an offer that a businessman from Delhi was interested in purchasing land in village Katawaria Sarai, New Delhi, and enquired if Defendant No. 1 was willing to offer part of the land owned by him for sale. Shri Vinod Vershneya accompanied by a Sikh gentleman, whose name later on learnt was Shri I.S. Bawa, partner of the Plaintiff, visited the aforesaid plote of land. Defendant No. 1 had offered to sell the two plots at the following rates:-

(a) Approximately 432 sq. yards in Khasra No. 207 (min), Katwaria Sarai, New Delhi @ Rs. 5,500/- per sq. yard:

(b) 536 sq. yards in khasra No. 162 (min). Katwaria Sarai, New Delhi, also known as (F-126) @ Rs 6,000/- per sq. yard.

The plaintiff showed interest and accepted the offer as regards the land situated in Khasra No. 207 (min), Katwaria Sarai, New Delhi, therefore, agreed to purchase the same for a total price of Rs. 23,76,000/- @ Rs. 5,500/- per sq. Yard. Defendant No. 1 was paid a sum of Rs. 4,00,000/- as earnest money vide cheque No. 513922. The balance of Rs. 19.76 lakh was to be paid within 90 days, during which time the Plaintiff had undertaken to get all necessary permissions for and on behalf of Defendant No. 1 since Defendant No. 1 was old and did not have any educational qualifications. Blank documents/papers were got signed from Defendant No. 1."

These averments have not been denied as no rejoinder has been filed by the plaintiff. It is stressed by Counsel for the non-applicants that although the suit was filed in August, 1991 the first mention of the land bearing No. 126 was made in the application filed in March, 1994. For all these reasons, I conclude that in the present application for amendment is not calculated to bring the Khasra Nos. in consonance with the boundaries mentioned in the plaint. On the contrary if the application is allowed the effect would be to substitute Khasra No. 207 by Khasra No. 162. This cannot be permitted.

13. In conclusion it is clear to me that the amendment sought for ought not to be allowed for the reason that it introduces a totally new case, distinct to that contained in the plaint. If the amendment is allowed the land, which is the subject matter of the suit, would change from "Khasara No. 207 (min) measuring approximately 432 sq. Yards" to "F-126 New Katwaria Sarai, Tehsil Mehrauli, New Delhi". If the contention of the/learned counsel for the plaintiff is to be accepted then there is scarce need to delete the words "out of Khasra No. 207(min)," since it would be the case that these Khasra Nos. are in fact synonymous and interchangeable.

14. It is also relevant that this application has come for determination after the interim order was granted by the learned Appellate Court with specific reference to the suit property as contained in the plaint. Allowing the application at this stage tantamount to altering the sweep of the interim order granted by the learned Appellate Court, which I am constrained not to do.

15. For the reasons stated above, the application is dismissed with costs. The plaintiff shall pay a sum of Rs. 1000/- to each of the defendants and Rs. 1000/- will be deposited with the Delhi Legal Services Authority.