Madhu Puri And Anr. vs Moti Lal Puri And Ors.
2005 Latest Caselaw 1752 Del

JUDGMENT

Anil Kumar, J.

IA No. 8567/2005 in CS(OS) No. 795/2005

1. This is an application by the plaintiff for amendment of plaint under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure and under Order I Rule 10 of CPC for impleadment of Mr.Shashi Dev as the defendant.

2. The plaintiffs contended that they filed the suit for permanent and mandatory injunction and declaration and possession. The plaintiffs contended that written statement has been filed by defendants No. 1 to 3 contending inter alia that pursuant to a will dated 26th September, 2004 of Late Shri Pradeep Puri devising the rights in respect of the flat, a sale deed was executed in favor of Mr.Shashi Dev and possession of the property has been transferred to him.

3. The plaintiffs/applicants contended that they have discovered certain facts and events which were not known to them at the time of filing of the said civil suit necessitating seeking amendment to the plaint.

4. The plaintiffs/applicants want to incorporate the facts which have come to their notice such as that defendant nos. 1 to 3 on the basis of alleged forged and fabricated will dated 26th September, 2004 have executed a sale deed in favor of Mr.Shashi Dev son of Shri O.P. Sharma, resident of Vivek Vihar, Phase I, Delhi, defendant No. 8. According to the plaintiffs the alleged transaction between defendants 1 to 3 and defendant No. 8 is nothing but a sham, false, frivolous transaction entered into with malicious intent of defeating legitimate and legal rights, title and interest of the plaintiff in the properties and assets of late Shri Pradeep Puri, particularly the said flat. The plaintiffs want to contend that the value of the flat is more than Rs.45.00 lakh which have been transferred for a meager amount of Rs.8.50 lakh which casts doubt and suspicion on the transaction between the defendant Nos.1 to 3 and defendant No. 8.

4. The plaintiffs/applicants, on the basis of the report of the LocalCommissioner who had visited the property pursuant to an order of the Court and had prepared an inventory, want to contend that the transaction is nothing but a sham and frivolous transaction and the plaintiff No. 1 has filed a criminal complaint with the police authorities for registration under Sections 467, 468 and 471 of Indian Penal Code. The plaintiffs want to contend that they are the only legal and lawful heirs and successors of late Shri Pradeep Puri and are entitled to all the assets ad properties including the flat in dispute and the defendants 1 to 3 and defendant No. 8 are jointly as well as severally guilty of playing fraud and forging the will of late Shri Pradeep Puri. The plaintiff in the circumstances have prayed for a decree of permanent prohibitory injunction in favor of the plaintiffs and against the defendants and a declaration that the will dated September 26, 2004 purported to be executed by late Shri Pradeep Puri is forged and fabricated.

5. The plaintiffs want to amend the plaint incorporating the subsequent facts which have come to their knowledge after filing of the present suit and they state that the amendments sought in the plaint by the plaintiffs are necessary for determination of real controversy between the parties. 8. The learned counsel for the plaintiff, Mr. H.S. Chandihok, has relied on 1998 (5) AD (Delhi) 708, Sushil Kumar Gupta v. Anil Kumar Gupta; , Bajaj Auto Limited v. Vikram Singh Mehta and Anr.; , Time Warner Entertainment Co. Limited v. A.K. Das and Ors.; 89 (2001) DLT 196, Vikram Singh Mehta and Anr. v. Bajaj Auto Limited and , Saif-ul-Islam Company v. Roshan Lal Arora and Anr.

6. The application is contested by defendant nos. 1 to 3 contending that Shri Shashi Dev has already been imp leaded as defendant No. 8 in the suit and thus the application under Order I Rule 10 for impleadment of Shri Shashi Dev has become infructuous.

7. The prayer for the amendment of the plaint is opposed on the ground that the original plaint has 18 paragraphs and the plaintiffs/applicants want to delete paragraphs 10 to 18 and substitute new paragraphs 10 to 21 in place of them. The defendants have also opposed the application on the ground that the plaintiffs/applicants want to seek three new prayers and an entirely new plaint is sought to be created and the affidavit in support of the application is not signed and verified in accordance with law. The defendants 1 to 3 have asserted that the application has been filed to delay and protract the litigation and the proposed amendment is not necessary for the purpose of determining the real controversies between the parties and the amendment sought does not come within the purview of the Order VI Rule 17 of the Code of Civil Procedure.

8. The purpose and object of Order 6 Rule 17 is to allow either party to alter or amend his pleading 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 in various precedents. Though the amendment cannot be claimed as a matter of right and under all circumstances but the Courts while deciding such prayer do not adopt a hyper technical approach. Liberal approach is the general rule particularly in cases where the other side can be compensated with costs. Technicalities of law can 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. It is also no more res integra that pretrial amendments are allowed more liberally than those which are sought to be made after the commencement of trial or after conclusion thereof. Mere delay usually cannot be a ground for refusing a prayer for amendment because merits of amendment sought to be incorporated by way of amendments are not to be judged at the stage of allowing prayer for amendment.

9. Reliance can be placed on AIR 2000 SC 614, B.K. Pillai v. P. Pillai; where it was held that the application for amendment should not be rejected, especially when the party opposing amendment can be compensated by cost and the application does not suffer from any delay.

10. In Saif-ul-Islam (supra) relied on by the plaintiff, it was held that all amendments of the pleadings should be allowed which are necessary for determination of real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action. A proposed amendment should not cause such prejudice to other side which cannot be compensated by costs. It was held that no amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. In Vikram Singh Mehta ((supra), a single Judge of this Court had held that the procedure is hand made and not mistress of justice. Since the suit was at preliminary stage and even issues were not framed, the amendments proposed were allowed, subject to condition that the amendment would take effect only from the date of amendment of the application and would not relate back to the institution of the suit and that the plaintiff shall file court fee which would have been payable if he was to institute a fresh suit based on the notice to quit within one month.

11. Allowing amendment on account of subsequent facts which came to the notice of the plaintiff, a learned single Judge in Time Warner Entertainment Company Ltd. (LP) (supra) another judgment relied on by the plaintiffs, it was held that amendments necessary for determination of real questions and controversy should be allowed, as such amendments which are necessary for determination of controversies will not cause any prejudice to the defendants. It was held that mere delay and latches in making application for amendment is not a ground for refusal of amendment. Similarly allowing the application for amendment in Sushil Kumar Gupta (supra), it was held that amendment necessitated because of subsequent events should be allowed as no serious injustice or irreparable loss is caused to the other side as the amendment applications are to be allowed to avoid multiplicity of litigation.

12. The Division Bench of this Court in Bajaj Auto Limited (supra) had held that introduction of subsequent events, resulting into different approach or set of ideas claiming same relief should be permitted in order to shorten the litigation and discretion exercised by a Judge to allow amendment in order to incorporate subsequent events cannot be termed arbitrary, perverse or irregular. In , L.J. Leach and Co. Ltd. and Anr. v. Jardine Skinner and Co., it was held by the Apex Court that an amendment which incorporates a claim which is barred by time on the date of the application, then it can be disallowed, however, it does not affect the power of the Court to order it, if that is required in the interests of justice. It was observed by the Court it is not doubt true that Courts would, as a rule, decline to allow amendment, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the direction as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice.

13. The Apex Court in , Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and Ors. was concerned about the legality and validity of the order allowing amendment to the plaint. The Apex Court had observed:-

"in my opinion, two simple tests, and two only, need to be applied, in order to ascertain whether a given case is within the principle. First, could the party asking to amend obtain the same quantity of relief without the amendment"

If not, then it follows necessarily that the proposed amendment placed the other party at a disadvantage. It allows his opponent to obtain more from him than he would have been able to obtain but for the amendment. Since, in those circumstances, can the party thus placed at a disadvantage be compensated for it by costs. If not, then the amendment ought not, unless the case is so peculiar as to be taken out of the scope of the rule, to be allowed."

14. The general rule in the matter of allowing amendment of pleadings as approved by the Supreme Court in A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation, , is that a party by amendment is not allowed to setup a new case or new cause of action particularly when the suit on the new cause of action is barred by limitation. The Apex Court held:-

"The principal reasons that have led to the rule last mentioned are first, that the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes (Cropper v. Smith, (1884) 26 CH D 700 (710-711) and secondly, that a party is strictly not entitled to rely on the statue of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended."

15. Applying these principles to the facts of the instance case, it is apparent that the amendments sought by the plaintiffs do not in any way amounts to the addition of an entirely a different case, as has been contended by the defendant nos.1 to 3. It is only a different or additional approach to the same facts and more claims on the same facts. When the suit was filed, the plaintiffs were claiming that they are the legal heirs and representatives of deceased Shri Pradeep Puri and are entitled for his estates and defendants 1 to 3 have no right in them. Since defendants 1 to 3, on the basis of a will, have transferred the rights by execution of a conveyance deed in favor of defendant No. 8, the plaintiffs are seeking to annul those rights in favor of transferee.

16. The suit was filed less than a year ago and an application was filed by defendant No. 8 for his impleadment which was allowed. The defendant No. 8, subsequent purchaser of the property has already been imp leaded. The transaction, execution of conveyance deed executed by the defendant nos. 1 to 3 in favor of defendant No. 8 has come to the knowledge of the plaintiffs later on. Consequently, amendments as sought by the plaintiffs are necessary for determination for determination of real controversies between the parties. The amendments sought by the plaintiffs seeking new relief are not barred by time and there does not seem to be any other impediment in allowing the amendments which are sought by the plaintiffs. In law, if the plaintiffs are seeking new relief and if they are liable to pay court fees on them, allowing amendments will not exempt them from paying the court fees on the new relief nor will dilute their liabilities, if they are liable under law.

17. The case is still at a pre-trial stage and issues have not been framed rather some of the defendants have not even filed the written statements. The allegations of defendants 1 to 3 that the application for amendment is filed with a view to protract the litigation is, therefore, not borne out from the facts of the case. This is not the case of the defendants No. 1 to 3 that they had intimated plaintiffs much earlier that they have transferred the rights, title and interest in the property to defendant No. 8. In any case the reliefs claimed by the plaintiffs are not barred by time nor any such plea has been taken.

18. Considering the totality of the facts and circumstances, I am unable to infer that the application for amendment is filed with a view to delay and protract the litigation. The plaintiffs/applicants have sought relief in respect of estate of late Shri Pradeep Puri. Since rights in the flat which was owned by late Shri Pradeep Puri, has been transferred by a conveyance deed to defendant No. 8, the facts pertaining to transfer and seeking rights therein does not tantamount to setting up a entirely new case. Falsity of the pleas of the plaintiffs, which has been alleged by the defendants, cannot be decided at the time of considering whether the amendments should be allowed or not. The application is filed along with an affidavit of Shri Narinder Diwan alleged to be a duly constituted attorney of the plaintiff No. 1. The defendants shall be entitled to challenge whether Shri Narinder Diwan is a duly constituted attorney of the plaintiffs or not but on this ground, the application for amendment can not be disallowed, nor this plea is to be finally adjudicated at this juncture.

19. In the facts and circumstances and for the reasons stated hereinbefore, the application filed by the plaintiff for amendment of the plaint is allowed, subject to a cost of Rs.10,000/- payable to defendants No. 1 to 3 and 8 in equal shares. Amended memo of parties be filed.

IA No. 8568/2005

Learned counsel for the defendant No. 8 seek time to file the reply. Reply be filed within four weeks. List for hearing on February 15, 2006.

CS(OS) No. 795/2005 Amended plaint be filed within two weeks. The learned counsels for the defendants pray for time to file the written statements to the amended plaint, after receipt of copy of the amended plaint. Written statements be filed within four weeks after filing of amended plaint within two weeks.