Ms. Devi Rani And Anr. vs Jaswant Singh
2003 Latest Caselaw 673 Del

JUDGMENT

Manmohan Sarin, J.

1. This is an application under Order VI Rule 17, read with Section 151 CPC, moved by the plaintiffs for amendment of the plaint. Plaintiffs have filed the above suit to be declared as owners of the property bearing No. 5685, Gali No. 79-80, Reghar Pura, Karol Bagh, New Delhi. The declaration is sought on the basis of a Will executed by the deceased Mai Singh in favor of plaintiffs 1 and 2. Prayer in the suit was for plaintiffs 1 and 2 to be declared as sole owners of the property, debarring defendant not to cause eclipse of the right, title or interest of the plaintiffs in the suit property. An application under Order XXXIX Rules 1 and 2 CPC, i.e. I.A. No. 5732/2002 was also moved, wherein it was averred that the defendant had extended threats to vacate the portion under his occupation in the suit property and hand over the same to the defendant's brothers Sh. Balbir Singh and Sh. Bhagat Singh. An ad-interim injunction was sought to restrain the defendant from handing over possession of the property in his possession to the aforesaid Balbir Singh and Bhagat Singh and defendant was further sought to be restrained from harassing the tenants and in particular one tenant Balaji. Plaintiffs in the plaint had also made an averment that they reserve the right to seek appropriate remedy against the defendant about possession in case any such cause of action accrues.

2. Before adverting to the pleas raised in opposition to the application for amendment, the facts relevant as they emerge from pleadings, may be noted:

(i) Plaintiff No. 1, Ms. Devi Rani and plaintiff No. 2 Smt. Dropti Devi are the unmarried daughter and widow of late Shri Mai Singh. Defendant Jaswant Singh is the son of late Mai Singh, who expired on 2.5.2002.

(ii) Plaintiffs on 17th June, 2002, filed the above suit for declaration to be declared as the sole owner of house bearing No. 5685 Gali No. 79-80, Regharpura, Karol Bagh, New Delhi ad-measuring 125 sq. yds. It is claimed that the property in question was the self acquired property of late Mai Singh, who executed a registered General Power of Attorney on 31.5.1999, in favor of plaintiff No. 1. Late Mai Singh also executed a declaration on 31st May, 1999, wherein he claimed the property in question being his self acquired property and him being the sole owner thereof. Mai Singh also declared that he had already given share of movable and immovable properties to his sons Balbir Singh and Bhagat Singh, who would have no right, title or interest in the present property. Additionally, he executed a Will dated 31st May, 1999, whereby he also bequeathed the property in question to the plaintiffs. Late Mai Singh had also debarred his sons Balbir Singh and Bhagat Singh from the suit property or his estate.

(iii) Defendant Jaswant Singh is in possession of a hall/room in the premises in question. Defendant, it is claimed, has been allotted by the Government Authorities a flat and hence the room/hall was not required by him. He had promised Mai Singh to hand over possession of the same. However, Mai Singh suddenly took ill and defendant did not hand over possession. Plaintiffs claim that the defendant has been threatening to give the possession of the hall/room to Balbir Singh and Bhagat Singh, who had been debarred by late Mai Singh. Defendant, it was claimed, is colluding with the brothers and had extended the threat that he would leave the room under his occupation and induct them in the premises. It was also averred that the threatened action would go against the desire or the will of Mai Singh. Further, that the defendant had cast a doubt to the title of plaintiffs 1 and 2 by claiming it to be ancestral property with all LRs having a share. Defendant was said to be harassing the defendant and the plaintiffs apprehend that possession of the tenanted rooms may be parted with in favor of third parties. In the application under Order 39 Rules 1 and 2 CPC defendant was sought to be restrained from handing over possession of the portion of the property in his possession to his brothers and further from harassing the tenant and, in particular, the tenant namely Balaji near the hall/room in possession of the defendant.

3. In the aforesaid facts, the present application for amendment I.A. No. 328/2003 has been moved. In the application for amendment, the following pleas/claims are sought to be included in the plaint:

(i) Claim for charges of occupation of the hall at the first floor by the defendant. It is averred the said portion could be let out to a tenant at the rate of Rs. 3,000/- per month in the open market with effect from 7.5.2002 after the death of Mai Singh.

(ii) Claim for payment of electricity and water charges against the tenant. Plaintiffs seek to claim water charges at Rs. 30/- per month and electricity charges at Rs. 700/- per month.

(iii) Plaintiffs it is stated had reserved their rights for seeking the remedy for recovery of possession. On account of the relations having become strained between the parties, it is claimed that plaintiffs are not interested in keeping the defendant any longer in the suit property and, therefore, are seeking the relief of possession. The permission to use the premises is sought to be terminated w.e.f. 22.11.2002. Consequently, the averment made in the plaint earlier that plaintiffs have no objection if the defendant remains in permissive user of the hall in suit property, is sought to be deleted. Subsequent event is sought to be incorporated as tenant Balaji is stated to have left the premises.

4. Defendant has filed reply to the above application. It is claimed that the amendment is barred under the provisions of Order II Rule 2 CPC as the plaintiffs omitted to claim the relief with regard to possession for which cause of action had arisen. As such, the said relief would now be debarred. On merits, it is urged that the plaintiffs have not filed any site plan or identified the property, as such, the claim for decree for recovery of possession would not be maintainable. It is averred that the claim for Rs. 3,000/- per month as user charges as also for recovery of possession were both available at the time of filing of the suit on 27th June, 2002. Mai Singh having died on 7th May, 2002, the plaintiffs intentionally or otherwise omitted to claim possession or the occupation charges at the time of institution of the suit. The amendments could only be permitted for new facts, which were not in the knowledge of the plaintiffs. Plaintiffs had also not filed the proposed amended plaint on record. As regards electricity and water charges, it is stated that defendant had been directly paying the charges.

5. I have carefully perused the plaint as also the written statement and the pleadings in the application as well as documents on record. The whole purpose and intent of Order II Rule 2 CPC is that every suit should include the whole of the claim, which the plaintiff is entitled to make in respect of cause of action. Cause of action means the cause of action for which the suit was brought. A cause of action is that which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief and then he limits his claim, he cannot afterward seek to sue for the balance relief by independent proceedings. A subsequent suit purely to rectify mistake committed in the prior suit, would not be maintainable. The requirement of Rule 2 in essence is that where there is a cause of action, the plaintiff cannot split the cause of action into parts and claim reliefs para-wise in several action."

6. Having noted the above legal position, let us apply the same to the facts of the present case. The plaint is rather unhappily worded. It has left much to be desired in terms of consistent pleas. In the plaint as originally filed, the plaintiffs' case is that defendant had promised their father to vacate and hand over the portion in his possession. It was next claimed that, however, defendant was now siding with the two brothers who had been debarred and was harassing the tenants. Plaintiffs apprehension thus was that defendant might not induct the said brothers in his possession or third parties in the portions vacated by the tenants and hence injunction was sought that defendant be restrained from handing over possession of the portion in his occupation, to the brothers and further not to harass the tenants.

7. It was averred in the plaint that the defendant had cast a doubt on the title of the plaintiffs by alleging that the suit property was an ancestral property and it should stand in the name of plaintiffs and all the legal heirs as the title was threatened, the suit for declaration was filed. As regards the defendant's handing over possession, it was averred "in case the defendant wishes to vacate his portion, the defendant is free to do so but at the same time the possession of his portion should be delivered to the plaintiff only and not to anyone, as stated above. Plaintiffs reserve their right to seek appropriate remedy against the defendant for the possession in case any such cause of action accrues."

8. Learned counsel for the defendant, while opposing the amendment application, therefore, strenuously urged that once the plaintiffs themselves claim that defendant was raising a doubt on their title and was claiming the same to be ancestral property, the same militates against the acceptance of permissive user by the defendant or defendant's willingness to hand over possession. Rather, plaintiffs themselves were found to be apprehensive of the defendant inducting the debarred brothers in the portion in his possession or inducting third parties in the portion, vacated by the tenant. The plaintiffs, on the other hand, are claiming that the defendant had earlier promised to hand over possession of the portion in his occupation to the father but had not done so on account of his illness. Since then the relations having become strained, plaintiffs terminated the permissive user w.e.f. 22.11.2002 and, as such, the cause of action for recovery of possession only arose thereafter.

The question, therefore, before the Court is whether the plaintiffs should be shut out at this initial stage of amendment of plaint itself from seeking the relief of recovery of possession or the plaintiff should be given an opportunity to establish his case that the cause of action for the recovery of possession arose on 22.11.2002, when he terminated the defendant's so-called 'permissive user'.

9. Moreover, in this case, the claim for relief of possession is not barred by limitation. Amendments to the plaint to include a relief, which is not barred by limitation are to be allowed liberally. Although, factors such as defendant threatening to induct the brothers in his possession or harassing the tenant with a view to secure their eviction and induct third parties as also the assertion of the property being ancestral are indicators that the defendant was not inclined to hand over possession of the premises in his possession. Nevertheless, it cannot be said that the plaintiff in such a situation is confronted with a fait accompli of cause of action for recovery of possession having been accrued and the failure to claim relief for possession would attract the bar under Order II Rule 2 CPC. In matters involving near relations and family members, litigation is generally the last resort. Besides, in my view, the merits or otherwise of the amendment application ought not to be decided at this stage and even if the plaint is not happily worded and there are some inconsistencies, the plaintiffs ought to be given an opportunity to establish their case of terminating the permissive user on 27.11.2002 and thereafter seeking the relief for possession. The objection raised by the defendant cannot come in the way of amendment not being allowed. The application for amendment is, accordingly, allowed, subject to cost of Rs. 4,000/- to the defendant. It is left open to the defendant to take the plea on merits in opposing the amendment application or the objections under Order II Rule 2 CPC. Based on the objections, as may be raised in the written statement, it would be for the Court to frame an issue on maintainability or otherwise of the suit, if so warranted.

IA stands allowed in the above terms.