Sh. Sudhir Chopra vs Sh. Rajinder Nath Chopra And Ors.
2002 Latest Caselaw 1941 Del

JUDGMENT

S. Mukerjee, J.

1. This application for amendment by which the plaintiff claims that in the written statement filed by the defendant to the original plaint, certain facts have been disclosed about movable property and assets left by late Shri Amarnath Chopra and his wife Vidyawati, which are stated to be in the possession of defendant No. 1.

2. The plaintiff contends that since a partition suit has to encompass the entire properties to the knowledge of the plaintiff, as such, upon coming to know about these further movable properties and assets which are in the possession and control of defendant No. 1, thereupon certain amendments have become necessary which he seeks to incorporate by way of the proposed amendment.

3. There is no opposition on behalf of defendant No. 2, who is his two page reply has conveyed his no objection, in the following of the amendments prayed for, subject to the plaintiff being called upon to pay reasonable costs to the said non-applicant.

4. The defendant No. 1, on the other hand, has vehemently opposed the amendment application according to him, the suit is barred by Order 2 Rule 2 of Code of Civil Procedure. He submits that the suit originally filed ought to have included all the properties, and in case that was not done, it should be deemed that the omission to include the properties, is deliberate and intentional. Once the properties were left out deliberately or intentionally, then the bar of Order 2, Rule 2, will stand in the way of amendment, in the submission of defendant No. 1.

5. The other contentions of the defendant No. 1 is that, for any amendment to be permitted under Order 6, Rule 17, there have to be important and subsequent events, which have occurred, failing which the amendment cannot be allowed. In the present case, the defendant No. 1 submits that all the movable property and assets were already existing earlier, and for this reason, the amendment should not be allowed.

6. Yet another objection taken to the effect is that allowing of the amendment, will violate the maxim that no one shall be vexed twice over.

7. Another objection is that the suit of temporary injunction is being converted into a suit for permanent injunction.

8. On the merits, the defendant No. 1 submits that the relinquishment deed dated 18.12.2000 mentioned in para 3 D of the application, is a fake document. Reliance is also placed upon a "Will" dated 30.3.89 left behind by the late Shri Amarnath Chopra, which according to defendant No. 1, shows that the said deceased had partitioned his properties during his lifetime itself.

9. I have considered the submissions of the parties. The suit is at the very initial stage. Even the issue have not been framed. Considering the stage of the suit and the averments made in the application, I am of the view that the amendments which are sought to be incorporated are necessary for a proper, complete and efficacious disposal of the matter in controversy between the parties. The nature of the averments sought to be included by the amendment are such as amount to a clarification, or further elaboration of the stand already taken; and also for taking care of subsequent events in the light of the contents of the written statement as per copy thereof received by the plaintiff, which discloses certain new facts about the movable properties and assets left by Shri Amarnath Chopra and his wife late Smt. Vidyawati Chopra.

10. The proposed amendments do not change the character of the cases, and in any event it would be in the interests of justice that there should not be piece-meal litigation, or multiplicity thereof between the parties.

11. As regards the objection of the defendant No. 1 regarding the proposed amendments being barred by Order 2, Rule 2, it may be noted that as at present, while dealing with an application for amendment, this Court is not concerned with whether the said averments, will be ultimately sustained on merits or not. Even after the amendments are allowed thereafter by way of written statement to the amended plaint, it will be open to the defendant No. 2 to adopt all defenses including that of Order 2, Rule 2. As such, there is no merit in this objection of the defendant No. 2.

12. In addition to this, the stand of the plaintiff to the effect that the facts were disclosed for the first time by way of contents of the written statement of defendant No. 2, would also require to be gone not, on merits, at the time of trial of the suit. At this stage, unless the proposes amendments are such as to change the nature of the case itself, or operate to take away the effect of some categorical admission made by the party seeking amendments, or any other such like aspect which goes to the root of the matter, an amendment is ordinarily to be allowed when the suit such as the present is at the early stages of completion of the pleadings.

13. In view of the above, the application for amendment is allowed and amended plaint Along with the Amended Memo of Parties, is taken on record subject to the condition that the plaintiff will make payment of Rs. 2000/- as costs as each of the defendants No. 1 & 2. I may mention that the prayer for amendment also includes averments regarding impleadment of one son, three grandsons and one granddaughter. To my mind, considering the facts and circumstances of the present case and the suit being at the initial stages, and also the persons sought to be imp leaded being relations of the deceased (grand children), I feel it unnecessary duplication of consideration and against the interests of justice to issue notice at the stage of proposed impleadment in the peculiar facts of this case.

14. It is however made clear that allowing the amendment, including impleadment of grand children, will be without prejudice to their right to object to their impleadment in the present proceedings or their taking up a stand in the written statement to the effect that they are not necessary or proper parties. Likewise, it will be open to the defendant No. 2 to take the objection in the written statement regarding the averments now allowed to be incorporated by way of amendment having been in the knowledge of the plaintiff on the date when the original plaint was filed, and also regarding the bar of Order 2, Rule 2 CPC.

15. With these observations, the application is disposed off as allowed in the above terms.