Rajiv Goel And Anr. vs Krishna Kumari Goel And Ors.
2002 Latest Caselaw 621 Del

JUDGMENT

Mahmood Ali Khan, J.

1. this civil revision petition is field by the petitioners, who are defendants 1 and 2 in the suit, under Section 115 of the CPC assailing an order of the Additional District Judge dated 22nd November, 2000 whereby he has dismissed an application of the petitioners filed under Order 6, Rule 17 CPC for amendment of their written statement.

2. Facts, in brief, are that respondent No. 1, plaintiff in the suit, filed a civil suit for declaration with consequential relief against the petitioners, who are arrayed as defendants 1, 2 and five other persons (who were tenants in different portion of the suit property) for grant of 1) a decree of declaration that the sale deed dated 1st November, 1995 pertaining to property No. E-188 Greater Kailash Part-I executed by petitioner No. 1 /defendant No. 1 in favor of petitioner No. 2 defendant No. 2 was null and void and not binding on the plaintiffs; 2) a decree for perpetual injunction restraining the defendants from making further sale, transfer or alienation of the suit property on the basis of the sale deed dated 1st November, 1995; 3) a decree of perpetual injunction restraining the petitioners/defendants No. 1 and 2 from Realizing the rent from the tenants defendants No. 3 to 7 and restraining the defendants No. 3 to 7 from paying rent to defendants 1 and 2 and 4) lastly a decree for mandatory injunction directing defendants 1 and 2/petitioners to vacate the premises and hand over the vacant possession of the premises to respondent No. 1

-plaintiff. Her case is that defendant No. 1/petitioner No. 1 is her son and defendant No. 2/petitioner No. 2 is his wife. She is owner of the suit property. The land underneath this property measuring 208 sq. yds. was purchased by her jointly with her sister-in-law Ms. Krishna Kumari Aggarwal by a registered sale deed dated 13-2-1963. Smt. Krishana Kumari has relinquished her share in the said property in her favor long back. The petitioners (defendants 1 and 2) were in possession of the said document. The ground floor of the property was in self occupation of the plaintiff in which the defendants No. 1 and 2 were living as her licensees and the remaining defendants, who were tenants in the different portions of the property are paying rent at varying rate. The husband of the plaintiff died on 19.2.1994 and she became fully dependent upon her son defendant No. 1 and his wife defendant No. 2 for her safety, security and daily requirements. Taking undue advantage of the simplicity, old age, infirmity and illiteracy of the plaintiff, defendants 1 and 2, exercised undue influence and pressure upon her and obtained her signatures sometimes on blank papers and sometime on papers which had writing or were typed in English script without explaining the contents thereof on the pretext that they were required for dealing with the five tenants, the realisation of the rent and payment of house tax and electricity bills etc. In may, 1995, defendant No. 1, persuaded the plaintiff to go to a Government office near IN a market where she was asked to sign some typed papers, which were already with him, on the pretext that they were required for the purpose of clearance of the house tax, land tax, electricity and water bills and the necessary authorisation to facilitate the recovery of rent from the tenants and litigation with the tenants, if any, and that believing such representations to be true she signed those papers. The plaintiff did not know English language. She knew only to make her signatures in English script. She could not read or understood the contents of the documents. The defendant No. 1 also did not explain them. She believed the words of defendant No. 1. Thereafter the behavior of defendant No. 1 with her suddenly changed and then she realised that he had obtained her signature on some documents fraudulently. She filed a civil suit bearing No. 447/95 which is pending in the Court of a Civil Judge. At the time of filing of the suit, the plaintiff did not know the nature of the documents which were obtained by defendant No. 1 from her. Therefore, she could not specify particulars of the documents and pray for their cancellation. Later on she discovered that the defendant No. 1 had obtained from her a general power of attorney in his own favor and a will in favor of his son both dated 19th May, 1995. Defendant No. 1 filed his written statement after a long delay from which she came to know that he had already transferred her undivided one half share in the property by registered sale deed dated 1.11.1995 for a consideration of Rs. 3,20,000/- by virtue of the general power of attorney dated 19th May, 1995. The particulars of the sale were not revealed in the written statement. She came to know about name of the vendee defendant No. 2 after the record of the office of the Sub Registrar was inspected. The documents were obtained by concealment and suppression of the materia fact from her in order to usurp the property.

3. The suit was contested by defendant No. 1 and 2, who filed the written statement controverting the allegations of the plaintiff.

Defendants 1 and 2 filed an application under Order 6, Rule 17 for amendment of their written statement. It was alleged that the civil suit filed by the plaintiff bearing No. 447/95 has since been dismissed on merit by a Civil Judge and further that she was also maintaining a diary written in her own hands noting realisation of rent from the tenants which would show that she herself was managing her share in the property prior to the sale of the property. The proposed amendment was specified in the application which is as under:

"6. That the plaintiff had filed and instituted another suit for cancellation of documents and permanent injunction was mandatory injunction. The said suit was instituted by the plaintiff in the Court of Senior Sub Judge, Delhi, same was registered and marked to the Court of Shri K.S. Mohi, the then Sub Judge, Delhi as Suit No. 447/95 titled as "Smt. Krishna Kumari Goel v. Rajiv Goel and Ors.". The case was being contested by the defendant in the said case. The written statement was filed. The case was ripe up for adjudication. That the case was fixed in the Court of Shri Rajinder Kumar, Civil Judge, Delhi, the successor of the predecessor of the said Court from time to time. Ultimately the said suit was dismissed in default by Shri Rajinder Kumar, Civil Judge, Delhi, vide his order dated 20.4.2000. That the case has been decided finally by the said Court with regard to the cancellation of the documents executed by the plaintiff in favor of Shri Rajiv Goel, in respect of property bearing No. E-188 Greater Kailash I, New Delhi. That there is no revocation of the power of attorney executed by the plaintiff in favor of defendant No. 1 for dealing with the property bearing No. E-188 Greater Kailash I, New Delhi.

That the present suit of the plaintiff has become infructuous in view of the decision given by the learned Civil Judge, Delhi, vide his judgment/ order dated 20.4.2000.

7. That the plaintiff has concealed material facts from this Hon'ble Court and has not apprised this Hon'ble Court with full facts. That the suit of the plaintiff is liable to be rejected as the plaintiff has been receiving the rent of the premises from various occupiers/tenants and the plaintiff had been mentioning the same in page of diary maintained by her. That the plaintiff was noting the dates of payments regarding the payments received from various occupiers/tenants and also putting her initials/signatures on the said page of the diary. That the plaintiff has received the rent of the premises up to September, 1995 prior to the execution of the sale deed by her registered attorney and son Shri Rajiv Goel in favor of defendant No. 2 for consideration. That the said document falsify the averments and the stand of the plaintiff with regard to the averments of management and income of property bearing No. E-188 Greater kailash I, New Delhi. That the suit of the plaintiff is liable to be dismissed by this Hon'ble Court as the plaintiff has concealed material facts from this Hon'ble Court. That the suit of the plaintiff is without any cause of action."

4. It was alleged in the application that the proposed amendment was necessary for deciding the real question in controversy and that it will not change the nature of the defense set up by the defendants. The amendment was also being sought because of some subsequent events. The case is fixed for recording of the evidence of the defendants and the defendants have still not closed their evidence. It was prayed that amendment of written statement may be allowed.

5. This application is opposed by the plaintiff. The learned Additional District Judge by the impugned order dismissed amendment application but has allowed the petitioner to file certified copy of the order passed by the Civil Judge in the civil suit No. 447/95. He held that the dismissal of the said suit was relevant fact but the defendants need not formally amend the written statement for it and it would suffice if certified copy of that decision was filed. As regards the remaining proposed amendment his view was that it was not relevant for the grant of relief claimed since the ground of relief of injunction would depend upon validity of the sale deed executed in favor of defendant No. 2 and the question that she was managing the property prior to the execution of the sale deed would not be of any significance.

6. The petitioner are aggrieved and have come up in this revision petition assailing the impugned order.

The arguments of the learned counsel for the petitioners is that the need of the proposed amendment arose on account of subsequent events. The suit filed by the plaintiff for cancellation of the power of attorney executed by her in favor of defendant No. 1 was dismissed by the Civil Judge during the pendency of this suit. Therefore without pleading this fact in the written statement, the defendants will not be allowed to produce evidence to prove necessary facts about it. As regards the remaining amendment, it was submitted that the plaintiff had alleged that she was an old and illiterate lady wholly dependent upon her son defendant No. 1 who was managing the property and he obtained her signature on some documents and blank papers by playing fraud upon her. By the proposed amendment in the pleadings, defendants wanted to plead that the plaintiff was herself managing the property and she was collecting the rent from the tenants in respect of which she was making notes in her diary in her hands. It is submitted that without these allegation the defendants will not be able to adduce evidence so the proposed amendment was necessary for the purpose of deciding real question in controversy between the parties. The arguments of the counsel for the plaintiff are that the learned Additional District Judge was justified in refusing the proposed amendment as it was not necessary for deciding the real question in controversy between the parties. It is further argued that the alleged diary referred to in the proposed amendment is forged and fabricated document and cannot be allowed to be filed or produced by the defendants at this late stage. He has submitted that plaintiff is an illiterate lady, she came under the influence of her son defendant No. 1 who got some documents executed by her on false representation and used them to transfer her undivided share in the property in favor of his own wife defendant No. 2 by executing the sale deed. The plaintiff also filed a civil suit for cancellation of the power of attorney on the basis of which her share was sold by the petitioner No. 1 which was allegedly obtained by him by playing fraud upon her. It is also argued that the learned Additional District Judge has already allowed the defendant to file a copy of the judgment of Suit No. 447-95 but the decision in the said suit is not relevant so the proposed amendment is also not relevant. It is contended that the copy of the diary referred to in the proposed amendment has also not been filed. Even otherwise it is forged and fabricated document since petitioner No. 1 had taken her signatures on a number of papers by making misrepresentation.

7. The learned Additional District Jude has disposed of two applications filed by the petitioners by the impugned order. The first application is under Order 6, Rule 17 CPC and the second application was under Order 18, Rule 17A read with Order 13, Rule 2 CPC. The present revision petition has been filed challenging the order of the learned Additional District Judge by which he has disallowed the amendment in the written statement of the petitioners.

8. Law of amendment of the pleadings is now well settled by a catena of decision of the Supreme Court and this Court. Under Order 6 Rule 17 CPC, the pleadings, the plaint or the written statement, may be allowed to be altered and amended at any stage of the proceedings, which may be necessary for the purpose of deciding the real question in controversy between parties on such terms as may be just. Even a delayed amendment, if required for just decision of the question involved and which does not cause irretrievable injury to the opposite party may be allowed to be made in the pleadings, in case the court is satisfied that the party applying for amendment is not guilty of gross delay and laches and the amendment is not sought for malafide reasons and ulterior motives. The Supreme Court in B.K. Narayana Pillai v. Parameswaran Pillai and Anr. summed up the proposition of law on amendment of pleadings as under:-

"The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts, while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation".

9. Now the law enunciated above may be tested on the facts of this case. In the instance case a civil suit was filed by the plaintiff for declaration that the power of attorney was obtained from her by defendant No. 1 in his own favor by adopting fraudulent means. That civil suit has been dismissed by a civil court during the pendency of the proceedings. The learned Additional District Judge was of the view that this subsequent event can be taken into consideration without allowing the amendment in the pleadings. Her permitted the petitioner No. 1 to produce certified copy of the order of the learned civil Judge by which civil suit was disposed of. Evidence is to be produced by the parties in consonance with their pleadings in the plaint or the written statement. The learned trial judge has held the subsequent event was relevant and was necessary for deciding the real question in controversy between the parties for that reason he has allowed the petitioners to file certified copy of the judgment but be wrongly disallowed incorporation of the facts in the written statement which that judgment will prove.

10. As regards the amendment in paragraph 7 of the written statement, the defendant wanted to allege that the plaintiff herself was looking after her affairs and was managing the property in as much as she was Realizing the rent from the tenants and she was recording it in a diary. It is stated that this amendment is necessary to meet the allegations of plaintiff that she was illiterate, and an old woman who was wholly dependent upon her son for the management of the property. So far as the proposed plea is concerned the same is relevant in deciding the real question in controversy between the parties. The Court at the stage of deciding the amendment in the pleadings will not enter into the correctness or otherwise of the amendment. The merit of the plea raised by way of amendment could be considered only after the amendment was made and the parties adduced evidence thereon. Indeed the amendment will not give right to the petitioner to produce the diary allegedly referred in this proposed amendment. The documentary evidence could be produced after the date of the settlement of the issues only in accordance with the provisions of Order 13 Rule 2 CPC. As regards the evidence on the additional plea, it is not denied, that the plaintiff will also be grated an opportunity of producing evidence in rebuttal to the evidence of the defendant on the amended plea since the amendment was made after her evidence was over. The plaintiff can be compensated by costs and the proposed amendment will not cause irretrievable loss or injury to plaintiff. It cannot be said to be malafide or suffer from gross delay and laches either.

11. From the above discussion it is clear that the learned Additional District Judge has committed error of jurisdiction, illegality and material irregularity in the exercise of jurisdiction which warranted interference in the impugned order by this Court.

Accordingly the revision petition is allowed. The impugned order of the Additional District Judge dated 22nd November, 2000 is set aside and the petitioner/defendant No. 1 & 2 are permitted to amend the written statement as prayed in the amendment application subject to payment of Rs. 2500/- as costs to plaintiff. They are allowed to file amended written statement within four weeks. Replication thereto by the plaintiff shall be filed within four weeks thereafter. Parties shall appear before the trial Court on 15.5.2002.