Vipul Khosla vs Anil Khosla And Others
2008 Latest Caselaw 1063 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                               Reserved on July 14, 2008
                                                          Date of Decision: July 18, 2008

+      IA 4683/2008 in CS(OS) 12/2007

       VIPUL KHOSLA                                          ..... Plaintiff
                                    Through Mr. Masood Mirza and Mr. Himal Akhtar,
                                    Advocates.

                      versus

       ANIL KHOSLA AND OTHERS                  ..... Defendant
                      Through Mr. S.K. Verma, Advocate
                       and Mr. Atul Kumar, Advocate for D-1,D2 & D-4.
                       Mr. Niloy Dasgupta, advocate for D-3

CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT

       1.

Whether reporters of local papers may be allowed to see the judgment? Yes.

       2.      To be referred to the Reporter or not?                 Yes.
       3.      Whether the judgment should be reported
               in the Digest?                                          Yes.

% Mr. Justice S. Ravindra Bhat:

1. This order will dispose of IA No.4683/2007 which seeks rejection of the plaint on

several grounds.

2. The plaintiffs, as minors, had sued the defendants and claimed declaration with

other consequential reliefs through their mother and next friend; the suit was filed on

IA 4683/2008 in CS(OS) 12/2007 page no. 1 of 9 11.11.2002 in this Court. The change in pecuniary jurisdiction of Courts in Delhi, led to

the suit, CS(OS) 1846/2002 (Vipul Khosla Vs. Anil Khosla & Ors.) being transferred to

the Court of the District Judge by order of this Court dated 18.3.2004. During the course

of proceedings, after the written statements were filed, the defendants raised a series of

objections including valuation of the suit for the purposes of Court fee. They also moved

an application for rejection of the plaint under Order 7 Rule 11 CPC. It would be

necessary to notice at this stage that the grounds for rejection of plaint are the same as are

being articulated in IA No.4683/2007. That application was rejected on 6.12.2005 by the

trial Court. That order was challenged in revisional proceedings under Section 115, CPC

being CRP No.23-25/2006. Notice was issued in the revision petition which remained

pending on the trial of the Court.

3. In the meanwhile, on 2.6.2006 the Addl. District Judge (trial Court) noticed that

the suit was improperly valued and directed the plaintiffs to value it at Rs.1.5 crores for the

purposes of court fee and jurisdiction. That order was challenged by one of the plaintiffs

Vipul Khosla who had attained majority in the course of the proceedings and was

permitted to contest the case. He accordingly moved CM(M) No.1223/2006, assailing the

order directing fresh valuation, dated 2.6.2006. This Court disposed of CM(M) 1223/2006

by the order dated 11.8.2006. Even while affirming the trial court's order directing the

plaintiffs to increase valuation to Rs.1.5 crores the Court granted 30 days time to make up

the deficiency in Court fees. The Court, in CM(M) 1223/2006 clarified to some extent its

previous order, on 30.9.2006 when instead of the 30 day time limit, the trial Court was

granted the liberty to consider the issue of time limit for payment of court fee. The

Petitioner was permitted to satisfy the trial Court about the contention of delay in filing the

IA 4683/2008 in CS(OS) 12/2007 page no. 2 of 9 Court fee.

4. After this development, on 5.10.2006 an amendment application was moved

before the trial Court, to comply with the orders dated 2.6.2006. These amendments

valued the suit at Rs.1.5 crores and proposed payment of the requisite court fee. Other

amendments included the claim for separation and partition of the plaintiff's share in the

suit property. The amendments proposed were allowed by the order date 30.11.2006.

The petitioner thereafter took back the papers and filed the suit, in accordance with the

fresh valuation, before this Court on 2.12.2006.

5. On 23.1.2007 a development took place which has a direct material bearing on the

present controversy. The previous order of the trial Court dated 6.12.2005, rejecting the

application for amendment under Order 7 Rule 11 was set aside in the pending CRP

No.23-25/2005. In the course of the order, in those revisional proceedings, the Court

noticed that the trial Court after making the impugned order (dismissing the application

for rejection of plaint on 6.12.2005) had on 2.6.2006 held that the valuation of the suit was

improper. The Court, therefore, reasoned that all subsequent orders, after 2.6.2006

made by the trial Court, including the amendment of 30.11.2006 were unauthorized and

the proceedings, void. The Court, however, in the course of the order noticed that the

revision had become technically infructuous.

6. The applicant-defendant argued that the suit has to be rejected for the self same

reasons objected by them before the trial Court and also for the reason that unauthorized

amendments, held to be void and a nullity (by the order of this Court dated 23.1.2007)

have nevertheless been incorporated in the plaint. It is argued that the Plaintiff has not

IA 4683/2008 in CS(OS) 12/2007 page no. 3 of 9 valued the suit properly or paid the requisite Court fee and that the suit does not disclose

any cause of action. The applicants dispute that the cause of action as alleged in the suit to

have occurred on 28.2.2001 ever arose in the manner alleged. It is also contended and

argued in support of the application that the challenge to the relinquishment deed is not

on the ground of lack of necessity or other legal impediment and in the absence of such

allegation, the suit is not maintainable. The applicant-defendant alleged that the suit has

been deliberately undervalued at Rs.1.5 crores to evade proper Court fee.

7. The non-applicant plaintiff argues that the objections to maintainability of the suit

are frivolous. It is contended that although there are observations about unauthorized

amendments being made after 2.6.2006, that order directing proper valuation and

amendment was questioned in CM(M) 1223/2006 and upheld. The plaintiff acted upon it

although after some time by approaching the Court on 5.10.2006 and depositing the

requisite Court fees along with the amendment of the suit. The order of the trial Court

dated 2.6.2006 directing upward valuation and the consequential action in the return of

the plaint for re-filing before this Court was a logical step. It was contended that the

subsequent order dated 23.1.2007, could not have commented on the later developments

in the suit particularly when the order of 2.6.2006 had been upheld in another proceeding

by this Court, and had merged with the order of this court.

8. So far as the merits of the application are concerned, it is contended that the

amendments incorporated in the suit are not unauthorized as they are also consequential

in nature. It was further argued that the defendant's contention about the suit being time

barred is untenable since the declaration sought was within the prescribed three years

IA 4683/2008 in CS(OS) 12/2007 page no. 4 of 9 period. It was submitted further as to what ought to be legally tenable grounds or

otherwise for impeaching a relinquishment deed, are matters of trial best left for later

stages in the proceedings.

9. The picture which emerges from the previous narrative is a somewhat confused

tangle, perhaps the result of change of jurisdiction and re-valuation of the suit on the one

hand and assisted in part by two seemingly conflicting orders of this Court while exercising

supervisory jurisdiction. What, however, is clear that the order of the trial Court dated

2.6.2006 was affirmed by this Court which even extended the time to deposit the proper

court fee on the basis of the enhanced valuation. The order of this Court dated 23.1.2007

(in CRP No.23-25/2006) was only concerned with the legality of the order of the trial

Court dismissing the order 7 Rule 11 application. Yet in the course of those proceedings

the Court commented on the post 2.6.2006 developments in the suit. Curiously enough

that order - 2.3.2007 - is completely silent about the previous orders of the Court in

CM(M) 1223/2006. In my opinion those previous orders affirmed the trial Court's

determination dated 2.6.2006 and also implicitly approved the consequential step of

valuation, by extending the time to pay the requisite Court fee. Had this important event

been noticed by the Court, on 23-1-2007, in CRP 23-25/2006, it may well not have

commented about the legal effect of the subsequent order of the trial Court, permitting

the amendment. In any event having regard to the limited nature of the challenge before

this Court in CRP No.23-25/2006, the observations made about subsequent orders, can

also be regarded as tentative views expressed without the orders being under challenge

before the court, and not necessarily conclusive or determinative of the issue.

IA 4683/2008 in CS(OS) 12/2007 page no. 5 of 9

10. Now coming to the issue of the unauthorized amendments. No doubt the trial

Court permitted the amendments on 30.11.2006; the suit was, therefore, returned and

filed before the Court as amended, incorporating the amendments so made. Now if the

logic of the order in CRP No.23-25/2006 were to be pursued, what would follow is that

the suit would be on the file of the Court as originally presented, but without the

amendments. Yet all other proceedings including the orders and the applications pending

on the file would be on the record and would have to be considered by this Court. Strictly

speaking the plaint as presented, should have conformed to what was pending on the file

of the Court as on 2.6.2006 without the amendments other than those relating to

valuation. The incorporation of these amendments is one serious objection that the Court

proposes to deal with, but in a later part of the order.

11. As far as the merits of the application for rejection of the plaint are concerned, this

Court finds no substance in the objection that the suit is time barred. It is well-settled that

the merits of a claim cannot be gone into and in dealing with such applications the Court

is concerned with only averments, in the suit as well as the list of documents filed along

with the suit. These averments clearly reflect that the cause of action arose in 2001. The

suit was filed in 2002. Therefore, the relief of declaration has been claimed well within

the time. So far as the question of not impeaching the relinquishment deed for legally

sound reasons are concerned that objection, in the opinion of the Court is unmerited and

insubstantial. Whether the grounds urged for saying that the relinquishment made by the

plaintiff's father, is not binding upon them are permissible in law, are subject to scrutiny

during the trial and final arguments. This Court cannot pre-judge that issue at this stage;

doing so would be conjectural and denying the plaintiffs the right to prove their

IA 4683/2008 in CS(OS) 12/2007 page no. 6 of 9 allegations.

12. Now as far as the unauthorized amendments are concerned in one sense the

defendants are right when they point out that the subsequent additions to para 15 and the

amendment to the relief clause, have been added after 2.6.2006 and that such

amendments, cannot be permitted. Yet this Court is not unmindful of the fact that such

amendments were granted by order dated 30.11.2006. There is nothing on the record to

suggest that such order was challenged. The defendants relied solely on the order of this

Court dated 23.1.2007 which was concerned only with the previous order dated

6.12.2005. If the defendants arguments are to be accepted, this Court would have to

reject the suit placed on the record and proceed with the suit as it existed on the file of the

trial Court. That course of action does not commend to this Court at this juncture. This

is the third time this court is called upon to decide the question of rejection of plaint, or

valuation. Also, the suit is being presented a third time- the first time, it was filed in this

court, in 2002, returned and filed in the District court in 2004, and returned from that

court, to be filed yet again before this court, in 2-12-2006. These procedural squabblings

cannot surely go on endlessly. Also, if the defendant's argument reflects the true position,

there was no need for re-valuation and presentation of the suit before this Court. So far as

the other amendments are concerned, acceptance of the defendants arguments would also

mean that the application for amendment moved before the trial Court (and allowed on

30.11.2006 which order has never been impeached is illegal) would have to be decided by

this Court since it is a part of the proceedings filed after return of the plaint. As so aptly

remarked by the Supreme Court in Sushil Kumar Sen, -vs- State Of Bihar 1975 (1) SCC

774:

IA 4683/2008 in CS(OS) 12/2007 page no. 7 of 9 "The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable."

13. This Court has considered the amendments proposed. They are contained in

Paras 15(a) to 15(d) of the suit. The relief clause has also been consequently amended.

Now a reading of the order of 2.6.2006 of the trial Court would disclose that the Court

had directed revaluation of the suit and also consequential amendment of the plaint to

reflect the relief of possession. The plaintiffs had originally sought for a decree for

declaration that the family settlement of the HUF dated 28.2.2001 was illegal and that they

continued to be co-parceners in the HUF. A permanent injunction restraining the first

defendant from dealing with HUF property was sought. As a result of the order dated

2.6.2006 (which was upheld by this Court on 11.8.2006 and later by the clarificatory

order); the plaintiff acted on that and sought the amendment. Even though strictu sensu

the trial Court could not have allowed such amendment yet the fact remains that in sum

and substance the necessity of revaluing the suit and making, consequential necessary

changes in the plaint was felt and upheld by this Court in CM(M) 1223/2006 on

11.8.2006. Viewed from this perspective, this Court has the power - in view of the fact

that the trial Court proceeded to allow the application for amendment after hearing the

arguments of the parties, on 30.11.2006, to take the amended plaint on the record. This

conclusion is fortified by the order of the trial Court dated 30.11.2006 which shows that

counsel for defendant were heard. They never objected to jurisdiction of the trial Court

and in fact the defendants do not even seem to have seriously opposed the amendments.

At any rate during the hearing of this application the defendants did not rely

IA 4683/2008 in CS(OS) 12/2007 page no. 8 of 9 upon any reply filed on the record, opposing the applications before the trial Court. In

these circumstances this Court concludes that on the merits the defendants did not have

any objection to the amendment; rather they were necessary and consequential to the

order dated 2.6.2006. Therefore, this Court is within its rights to permit such amendment

as consequential to the order of the trial Court dated 2.6.2006, and does so, as a curative

measure, ex debito justitiae, to take on record the existing plaint.

14. As far as the objection with regard to valuation and payment of court fees is

concerned, the Court is of the considered opinion that these too are unfounded. The

plaintiffs have valued the suit at Rs.1.5 crores and have claimed 1/9 th share in the co-

parcenery property. The court fees has been paid on the said 1/9th share of which

possession is sought. The plaintiffs are not in possession of their share of the property. In

these circumstances, the plaint cannot be rejected

15. For the above reasons the Court is of the opinion that the application is unmerited

and has to fail and it is accordingly dismissed.

July 18, 2008                                                   (S. RAVINDRA BHAT )
                                                                       JUDGE




IA 4683/2008 in CS(OS) 12/2007                                         page no. 9 of 9