Ajit Bali And Ors. vs Arjun Singh Mansukhani
2001 Latest Caselaw 1462 Del

JUDGMENT

Vijender Jain, J.

1. This is an application under Order 6 Rule 17 read with Section 151 CPC filed by defendants 1 to 5 for amendment of the written statement filed by the defendants 1 to 5. Mr.Mehta, learned counsel for the defendants has contended that by the present application, defendants has contended that by the present application, defendants 1 to 5 seek to amend their written statement and want to add additional pleas. Broadly speaking the first amendment sought for by the defendants/applicants is that the plaintiff have a right by virtue of Section 53A of the Transfer of Property Act as predecessor-in-interest of the defendants came in occupation of the property after executing the agreement to sell dated 23.7.1961 and pursuant to an irrevocable power of attorney dated 15.9.1961 issued by R.C. Bali in favor of Mrs.Gunwati Singh, sister of predecessor in interest of the defendants.

2. The second amendment is based on Section 202 of the Contract Act. It has been contended that in view of execution of power of attorney dated 15.9.1961 and in view of the fact that possession of the property came in the hands of the predecessor-in-interest of the applicant/defendants, the non-applicant/plaintiff is estopped from challenging the ownership as well as possession of the applicant.

3. Third amendment sought for by the defendants/applicants is that the applicant now and their processor-in-interest earlier have been in continuous possession of the property in question and they have enjoyed the same without any let and hindrance and, therefore, pursuant to Section 27 of the Limitation Act and even otherwise, they have become owner of the property.

4. Last amendment sought for is that the present suit is for partition and the same is not maintainable as admittedly, the applicants are in possession of the suit property and no Court fee has been paid by the non-applicant/plaintiff.

5. It has been further contended before me by Mr.Mehta that the application for amendment has been made at the earliest opportunity as issues have not yet been framed and the scope for allowing amendment is larger in case of written statement than in case of plaint. In support of his contention, learned counsel for the defendants has cited B.K.N Pillai v. P. Pillai and Anr. AIR 200 SC 614.

6. On the other hand, Mr.Nayar, learned senior counsel for the non-applicant/plaintiff has not seriously challenged the amendment with regard to the effect of part performance and possession taken by the applicant and the applicability of Section 53A of the Transfer of Property Act. Similarly whether the plaintiffs are estopped from challenging the ownership of the defendants/applicant in view of agreement to sell and power of attorney dated 15.9.1961 has also not been challenged.

7. Mr.Nayar has made serious challenge to the amendment sought by the applicant with regard to the amendment by way of insertion of pleadings as preliminary objection No.7. It has been contended by Mr.Nayar that in written statement filed earlier no such plea was taken which is sought to be taken by the applicants at this stage. It is contended that the admission made by the applicants in the written statement in relation to certain paragraphs of the pleadings would be diluted if the amendment is allowed and the same would change the nature of the defense taken by the defendant when the earlier written statement was file.d He has further contended that all the facts pleaded in the application for amendment were within the knowledge of the applicants/defendants, therefore,e the amendment sought for are dilatory tactics as well as mala fide. he has contended that amendment with regard to the maintainability of the suit, which is a suit for partition, whether the same is maintainable or not, that is a question which can be decided later as issues have not yet been framed and the effect of maintainability of suit cannot be decided at this stage. Therefore, the amendment sought on this ground is neither necessary nor proper for adjudicating the controversy between the parties.

8. I have given my careful consideration to the arguments advanced by learned counsel for both the parties. As there is no dispute with regard to allowing amendment as incorporated in paragraph 8 and 9, I reproduce the same, which are to the following effect :

"That the applicant -- defendants and/or their predecessor being their mother have the complete protection of Section 53A of the Transfer of Property Act, the ingredients of which are wholly satisfied in the facts of the present case inasmuch as the predecessor in interest of the applicant - defendants had taken over possession of the suit property pursuant to the Agreement to Sell dated 23.6.61. Smt.Gunwati and thereafter the applicant -- defendants had till required by law always been ready and willing and continued to be ready and willing to do all their acts as required under the agreement to sell dated 23.7.61. In fact, the entire purchase price stood paid to the predecessor in interest of the plaintiff, Shri R.C. Bali, less a sum of Rs.500/- which was payable only at the time of the execution and registration of the sale deed. In fact, the applicant -- defendants and their predecessor in interest over-paid the predecessor in interest of the plaintiffs in that while it was represented at the time of Agreement to sell that the balance to be paid to the Ministry of Rehabilitation with respect to the suit property would not include a sum of Rs.1611.13 paise, which was the amount which was alleged to have been paid/adjusted against compensation by the mother of Shri R.C. Bali. The fact of the matter is that it were the applicant - defendants and their mother who had to pay the said amount and which amount was paid vide cheque No. 69019 dated 10.9.76 of Bank of Baroda, Chanakyapuri Branch, New Delhi to the Managing officer of the Ministry of Rehabilitation. Thus, nothing whatsoever remained to be performed by the applicant-defendants or their predecessor in interest under the agreement to sell dated 23.7.61 and consequently the applicant - defendants and their predecessor in interest are fully entitled to the benefit of Section 53A of the Transfer of Property Act, and correspondingly, the plaintiffs or their predecessor in interest are barred from claiming any right in the suit property.

The General power of attorney dated 15.09.1991 was executed by Mr.R.C. Bali for the benefit of Smt.Gunwati Devi and was thus irrevocable in view of Section 202 of Indian Contract Act as the power of attorney holder's de jure principal was having interest in the subject matter of the agency and the power of attorney was executed for the benefit of Smt.Gunwati Devi. The said power of attorney was executed by Mr.R.C. Bali to facilitate the sale deed in favor of the beneficiary, Smt.Gunwati Devi, predecessor in interest of the applicant defendants. In view of the above any alleged concellation of the said power of attorney by Mr.R.C. Bali was of no legal effect. To the extent of the character of Sh R.C. Bali in the suit property, the same got vested in the mother of the answering-defendants and who became the sole representative having interest in the suit property."

9. With regard to the amendment in paragraph 7, thee is controversy between the parties. I reproduce paragraph 7 of the application for amendment, which is to the following effect :

"The suit is clearly barred by time. The applicant - defendants and earlier their mother Smt.Gunwati has been in possession of the suit property and claiming to be owner thereof since September, 1961. If the plaintiff or their predecessor in interest had any subsisting right in the suit property, they ought to have filed the suit within twelve years of September, 1961 or in any case within twelve years from 1976/1977 when the original title deeds of the suit property was taken by the predecessor in interest of the applicant - defendants. Various acts have been performed and various omissions done by the applicant - defendants and/or their predecessor in interest since September, 1961 to show their ownership of the suit property. The suit which is in reality a suit only for possession, is barred by time, and since the suit pertains to immovable property. Not only limitation to file the suit is extinguished but the right itself in the property, (assuming the plaintiffs or their successor in interest had any subsisting right after execution of the Agreement to Sell and the Power of Attorney and thereafter handing over possession), was no longer existing as on the date of the filing of the suit in 1997 by virtue of Section 27 of the Limitation Act. The suit is therefore bound to be dismissed."

10. In paras 11 (ii), (iii), (iv) & (v), the case of the plaintiff from the reading of the aforesaid paragraphs of the plaint is that on the basis of and acting on the forged power of attorney dated 7.4.1978, purported to have been executed by R.C. Bali, in favor of Kamal Singh Mansukhani, brother of defendants Nos. 1 and 2. R.C. Bali was present for registration, same was done by a person impersonating as R.C. Bali before Sub-Registrar, Delhi for registration and on the basis of these documents, a Conveyance deed dated 22.7.1996 was issued in favor of late Shri R.C. Bali and defendants 1 and 2.

11. In the written statement these facts are not specifically dealt with nor are controverter by the applicants/defendants. Therefore, paragraph 7 in which the defendants have taken the plea that the plaintiff or their predecessor-in-interest had no subsisting right and the suit is barred by time and right to property itself is extinguished are not on the basis of facts which were not in the knowledge of the applicant/defendant at the time of filing of original written statement. Why the same were not controverter. The law regarding amendment is well settled. Once the defendant has taken a stand in the written statement dealing with the averment of the plaintiff, the defendant cannot be permitted to resile from that stand and if proposed amendment is allowed, it will amount to resiling from the stand which the defendant has taken in the original written statement in reply to paragraphs 11 (ii) to (v) of the plaint. The stand of the defendant in the amendment application is totally different and if the amendment is allowed, it will amount to allowing the defendant from resiling from admission made in relation to Para 11 (ii) to (v) of the plaint. In any event of the matter this Court will not go into the merit of the controversy between the parties.

12. In view of discussion above, I allow amendment of the written statement in terms of paragraphs 8 and 9 of the application. Rest of the amendment application is dismissed.

13. However, applicants/defendants will be entitled to take the defense with regard to maintainability of the suit as it is purely a legal objection at the time of framing of issues. With these observations, the application is partly allowed.

Suit No.2238/97

14. Let amended written statement be filed within four weeks. Amended replication within four weeks thereafter.

Renotify on 11.2.2002.

IA 8930/98

15. This is an application under Order 1 Rule 10(2) filed by defendant No. 12 for striking out his name from the array of parties. Let defendant No. 12 be present in person in Court on the next date of hearing to make a statement in court.

Renotify on 11.2.2002.

IA 834/2001

16. Allowed.

IAs. 11102-03/97

17. Already disposed of.