S.L. Raina vs Sunil Bhatt
2005 Latest Caselaw 739 Del

JUDGMENT

Mukul Mudgal, J.

1. Rule. With the consent of the learned counsel for the parties, the petition is taken up for final hearing.

2. This petition under Article 227 of the Constitution of India (hereinafter referred to as the 'Article 227') challenges the Order dated 12th December, 2002 allowing the application for amendment filed by the respondent/defendant before the Additional District Judge, Delhi (hereinafter referred to as the 'ADJ') in Suit No. 38 of 2001 titled "S.L. Raina v. Sunil Bhatt".

3. While noticing the fact that the trial had already commenced, and that the entire evidence of the plaintiff/petitioner herein had already been recorded and the case was fixed for respondent/defendant's evidence, the amendment sought by the defendant was nevertheless allowed on the view of the learned Additional District & Sessions Judge that since the plaintiff's suit was for possession and damages, the plaintiff/petitioner was required to prove his ownership in respect of the property in dispute.

4. The facts of the case are :

(a) that the petitioner is the executor of the Will dated 20th June, 1998 of Late Shri Som Nath Bhatt who had expired on 26th June, 1998.

(b) that acting upon the said Will of Late Shri Som Nath Bhatt, the petitioner filed a Probate Petition No. 29 of 1999 in the Court of District Judge, Delhi and respondent gave a no objection to the prayer made in the said probate petition leading to the passing of a probate order on 15th February, 2000 and in accordance with the said Will the defendant received the possession of the property situated at 1156, Sector-C, Pocket-A, Vasant Kunj, New Delhi and the defendant has already occupied the said flat.

(c) that according to the Will dated 20th June, 1998 the suit property situated at B-7/61, Extension Safdurjung Enclave, New Delhi fell to the share of the petitioner and the respondent/defendant entered into illegal occupation of the said suit property which according to the Will came to the petitioner.

(d) that the aforesaid act of the respondent/defendant led to the suit for possession and damages.

(e) that the revocation petition for the probate filed by the respondent is pending before the Court of District Judge, Delhi.

5. The original pleadings in the written statement filed by the respondent/defendant before the ADJ, Delhi reads as follows:-

"......It is incorrect that defendant has no legal right, title in the property B-7/61, Extension, Safdarjung Enclave, New Delhi. In fact, the defendant is the absolute owner of the property by way of succession after the death of his father S.N. Bhatt by operation of law.

7. In reply to Para No. 7, it is submitted that the defendant is the absolute owner of the entire estate of Late Shri Som Nath Bhatt as he died intestate including the property bearing No. 1156, Sector-C, Pocket-A, Vasant Kunj, New Delhi."

6. The defendant/respondent herein moved an application for amendment under Order VI Rule 17 of CPC and wanted to amend the written statement by adding the following paragraph as preliminary objection No. 4:-

"4. That the plaintiff's suit for possession and mesne profit is not maintainable under law because late Shri Som Nath Bhatt was not the owner of the property in question. The plaintiff has no locus standi to institute the suit because late Shri Som Nath Bhat was not the owner of the property and the suit is not maintainable under law. The owner of the property is Smt. Beena Pani Devi."

7. The learned Senior Counsel for the petitioner, Shri Valmiki Mehta apart from contending that the said amendment was after the commencement of the trial and forbidden by the amended proviso of the Rule 17 of Order VI of CPC, contended that the amendment sought to contend that the Late Shri Som Nath Bhatt was not the owner of the property in question, clearly seeks to take a plea directly contrary to that taken in his earlier written statement that the defendant/respondent herein is the absolute owner of the property by way of succession after the death of his father S.N. Bhatt by operation of law which naturally presupposed the ownership of Shri S.N. Bhatt.

8. Mr. Vijay Tandon, the learned counsel, appearing on behalf of the respondent/defendant has submitted that the respondent has not altered any of the pleas and has only added one more plea to the existing written statement and this does not alter the character of his written statement. In my view the above plea of the learned counsel for the respondent is not acceptable for two reasons:-

(i) that if the written statement filed before the ADJ, Delhi is not altered by the addition of the paragraph then it is not understood as to how the respondent will be prejudiced by the rejection of the application for amendment.

(ii) that it is crystal clear that the respondent/defendant has admitted in his earlier written statement that he derived his title from his father, Late Shri S.N. Bhatt who died intestate by operation of law. In view of the above, the respondent cannot now be heard to contend by seeking an amendment to the effect that Shri S.N. Bhatt was not the owner of the property in question.

9. The learned counsel for the respondent has cited a judgment of the Hon'ble Supreme Court in M/s Estralla Rubber v. Dass Estate (Pvt.) Ltd., reported as AIR 2001 SC 3295 and in particular para 7 thereof which reads as follows:-

"7. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in number of decisions of this Court. The exercise of power under this Article involves a duty on the High Court to keep inferior Courts and tribunals within the bounds of their authority and to see that they do duty expected or required by them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the Courts subordinate or tribunals. Exercise of this power and interfering with the orders of the Courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate Court or substitute its own judgment in place of that of the subordinate Court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of inferior Court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the Court or Tribunal has come to."

In my view the above judgment directly applies to the facts of the present case but not in favor of the respondent but against him because of the reason that since the respondent entered into the Vasant Kunj Property after connecting to the grant of the probate of the Will through which the petitioner/plaintiff claimed title of the Safdarjung Enclave property, cannot now be permitted to back out of such an admission as he has already filed an application for revocation of the probate granted with his consent subsequent to the receiving of the possession of the Vasant Kunj property. This coupled with the respondent's illegal occupation of the suit property averred by the petitioner which by virtue of the mandate of the probated will ought to have come to the share of the petitioner eloquently demonstrates the gross miscarriage of justice which will result in sustaining the impugned order allowing the amendment sought by the respondent.

10. Furthermore the plea of the respondent's counsel that the owner of the property in question is one Smt. Beena Pani Devi who is the registered owner and his father, Late Shri S.N. Bhatt was only a power-attorney in respect of the property, cannot be countenanced in view of the fact that the respondent having admitted the ownership of his late father, Shri S.N. Bhatt further cannot now be heard to back out of the said averment by seeking an amendment to the effect that he derived his title from his father, Late Shri S.N. Bhatt who died intestate by operation of law.

11. In this view of the matter, gross miscarriage of justice will occur if this court does not interfere under Article 227 and the impugned Order dated 12th December, 2002 passed by the ADJ, Delhi deserves to be set aside. Consequently, the petition is allowed and the Order dated 12th December, 2002 passed by the ADJ allowing the respondent/defendant's application for amendment under Order VI Rule 17 CPC is set aside. The respondent's application under Order VI Rule 17 CPC filed before the ADJ, Delhi stands dismissed. Parties to appear before the ADJ, Delhi on 20th July, 2005. In view of the fact that this matter was pending in this Court for more than 2 years, the ADJ, Delhi shall expedite the trial and make efforts to dispose of the suit not later than 31st August, 2006.

12. The petition stands allowed and disposed of accordingly.