Delhi High Court

Mohan Behari Mathur & Ors. vs Gopal Kishan & Ors. on 8 April, 2009

Author: Manmohan Singh

*          HIGH COURT OF DELHI : NEW DELHI

+          IA No. 1772/2008 in CS (OS) No. 1842/1999

%                      Judgment reserved on :        31st March, 2009

                       Judgment pronounced on :         8th April, 2009

           MOHAN BEHARI MATHUR &ORS.          ..... Plaintiff
                    Through Mr. Ravi Gupta and Mr. Gaurav
                            Gupta, Advs.

                                   versus

           GOPAL KISHAN & ORS.               ..... Defendants
                   Through Mr. Manish Vashisht, Adv. for def. no. 1
                           Mr. C.S. Bonde, Adv. for def. no. 2

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

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

2. To be referred to Reporter or not?                                  Yes

3. Whether the judgment should be reported                             Yes
   in the Digest?

MANMOHAN SINGH, J.

1. The plaintiff has filed the suit for relief of partition in respect

of property bearing No.C-6, Dr.Lane, Gole Market, New Delhi.

2. The plaintiffs have claimed 1/5th share each in both the

properties being the successor of late Sh. Atal Behari Lal. The present

application has been filed by the defendant No.1 under order 6 Rule

17CPC for amendment of the written statement.

3. It is stated in the application that both the properties were

owned by one Sh.Ganesh Sahai father of Sh. Atal Behari Lal. It is

stated that after the demise of Sh.Ganesh Sahai, his son Atal Behari Lal

became the sole owner in respect of the suit property. Sh.Atal Behari

Lal died in-testate on 14th March, 1972. The suit properties devolved

upon his legal heirs in equal share being the co-owners thereof. The

wife of Late Sh.Atal Behari Lal, Smt. Shakuntala Rani was impleaded as

defendant No.2 in the suit who expired during the pendency of the suit

on 29th October, 2004 leaving behind her last registered Will and

Testament dated 22nd July, 2003 in favour of defendant No.1. The said

fact was brought to the notice of this court by intimation under Order 22

Rule 10A CPC on 4th November 2004.

4. The defendant No.1/applicant has pleaded the factum of

compromise and settlement which was arrived between the plaintiffs

and defendants and in view of which the plaintiffs forfeited their rights,

title and interest in the suit properties. The plaintiffs in turn had been

given the entire moveable assets including huge sums and jewellery in

terms of family settlement.

5. Thus, according to the defendant No.1, the plaintiffs have no

right, title or interest in the suit properties in terms of the oral settlement

arrived between the parties. By way of the present amendment the

defendant No.1 seeks to amend the written statement by incorporating

Para 1(a) which reads as under:-

"1A. That the suit is liable to be dismissed as the plaintiff no. 2 and 3 being the daughters have no right or any interest in the HUF properties. This being the position the daughters also cannot claim any right or title in the suit property being the Hindu Undivided Family properties. Further, the plaintiff has no right or title to claim 1/5th share in the suit property since the suit property being the HUF properties and in view of the admissions in the judicial records thereby admitting the

existence of HUF and the properties being the HUF properties by the plaintiff no. 1 the suit is liable to be dismissed.

It is submitted that the suit properties No. 6 & 8 Doctor's Lane Gole Market, New Delhi are the properties of HUF namely M/s A.B. Lal & Sons. The said two properties were declared by Shri Atal Behari Lal to be the assets of a Hindu Undivided Family and were always assessed in the wealth tax as HUF Properties. Various correspondence by and on behalf of Shri A.B. Lal goes on to show that the suit properties were the assets of the Hindu Undivided Family. It is pertinent to submit that the suit properties were owned by Late Shri Ganesh Sahai father of Late Shri Atal Behari Lal. Late Shri Ganesh Sahai was also the Manager of the joint family. After his demise, Letters of Administration was granted in respect of his properties. His brother Shri Ganpat sahai did not object to the grant of the Letter of Administration and accordingly Letter of Administration was granted on 26th July, 1950 in relation to the goods and estate of Late Shri Ganesh Sahai. Thereafter his son Atal Behari Lal inherited the two properties namely 6 & 8 Doctor's Lane, Gole Market, New Delhi. Shri Atal Behari Lal then put these two properties in the hotch potch of his HUF namely M/s A.B. Lal & Sons. The address of the HUF for all purposes was always shown as M/s. A.B. Lal & Sons, 8 Doctor's Lane, New Delhi. The HUF was also assessed to the Wealth Tax and in the assessment orders also due declaration of the Suit Properties was always given. Late Shri Atal Behari Lal in one of the correspondence addressed to the Commissioner of Gift Tax, Central Revenue Building, New Delhi has himself stated that one of the Properties of the HUF known as 6-8, Doctor's Lane, was demolished and reconstructed in two phases in 1962 and 1964. It was also stated in the said correspondence that the said reconstruction was carried out at a total cost of Rs.1,25,485/-. It was further stated by Late Shri Atal Behari Lal that he had spent his personal funds on the properties of the HUF and thus he had thrown his self acquired funds into the common hotch potch of the HUF. Even in litigations against the tenants namely M/s. Texind Corporation Pvt. Ltd. who were occupying the First Floor of the Property No.6, Doctor's Lane, New Delhi a Legal Notice was served on behalf of Shri Mohan Behari Mathur, Karta HUF A.B. Lal & Sons, 8 Doctor's Lane, New Delhi. Similarly a petition in the Court of Rent Controller Delhi under Section 14(1)(K) of Delhi

Rent Control Act was preferred against the said tenant by Shri Mohan Behari Mahur, S/o Shri A.B. Lal, Karta, Hindu Undivided Family, A.B. Lal & Sons, 8 Doctor's Lane, Gole Market, New Delhi. There are various documents which indisputably proves the fact of the suit properties being the Hindu Undivided Family Properties. In view of this Suit is not maintainable and is liable to be dismissed."

6. The other amendment sought is by adding the few lines in

Paras 6 and 7 of the written statement, details of which are has follows:-

"6. ......Moreover the suit property being the HUF Properties the mutation in the name of all is of no consequence and can be corrected after the dismissal of the suit.

7.....It is also submitted that assuming that no family settlement or compromise was arrived at between the parties concerned even then the daughters cannot claim any right in the Hindu Undivided Family Properties after their marriage and plaintiff no. 1 also cannot plead to the contrary that he was not aware of the fact that the properties were not the Hindu Undivided Family Properties."

7. It is stated that the said amendments are necessary for the

disposal of the suit. From time to time the plaintiffs sought time to file

the reply. However, the reply was not filed.

8. Learned counsel for the plaintiffs has orally made his

submissions. He referred to Para 3 of the plaint wherein it is mentioned

that during the lifetime of Sh. Atal Behari Lal, he acquired rights and

interest in the suit properties and necessary mutations were effected in

his favour by the Land and Development office, New Delhi. He states

that in the written statement, the defendant No.1 has admitted Para 3 of

the plaint. On the basis of the said admission, the plaintiffs filed an

application under Order 12 Rule 6 CPC. He contends that the son of

defendant No.1 has filed an application for impleadment in the suit as

co-defendant enabling him to file his written statement in the suit and

for contesting his right in the aforesaid immoveable property of his

grand father Sh.Ganesh Sahai being the members of HUF known as

M/s.A.B.Lal &Sons.

9. Learned counsel for the plaintiff has argued that on one hand,

the defendant No.1 has admitted the averments made in Para 3 of the

plaint in his written statement and on the other hand by filing of the said

application a new defense has been set up by Ashish Nath, son of

defendant No.1 about the immoveable property being the member of

HUF of A.B.Lal & Sons, therefore, the present application filed by the

defendant No.1 is not maintainable as the defendant No.1 has not taken

the said defence of HUF in the written statement and he is estopped to

take the said defence on the basis of averments made by his son in the

application under Order 1 Rule 10 CPC.

10. Learned counsel for the defendant No.1 on the other hand

states that the suit is at the initial stage and it is a suit for partition and

the rights of the parties are yet to be decided. Even assuming the

defence of HUF is not taken by defendant No.1 in his written statement,

still the defendant No.1 has the right to take the said defence and in

order to decide the controversy between the parties, the amendment is to

be allowed.

11. It is a matter of fact that the application of Ashish Mathur,

son of defendant No.1 for his impleadment in the suit under order 1

Rule 10, contains the alleged averment of HUF property which has

been accepted by order dated 11th April, 2005. It is also observed while

deciding the said application that the applicant Sh.Ashish Mathur son

of defendant No.2 has placed on record some material to show that the

suit property was HUF property and, therefore, Sh.Ashish Mathur was

impleaded as one of the defendants.

12. The question before this court is as to whether the

application for amendment of the written statement filed by defendant

No.1 is to be allowed or not. In this regard learned counsel for the

defendants has cited the recent judgment of the Apex Court reported in

Usha Balashaheb Swami and Ors. v. Kiran Appaso Swami and Ors.,

AIR 2007 SC 1663 wherein it was specifically observed that a prayer

for amendment of the plaint and a prayer for amendment of the written

statement stand on different footings. In allowing the amendment in the

written statement, a liberal approach is a general view when admittedly

in the event of allowing the amendment, the other party can be

compensated in money. The relevant paras 14 to 17 of the judgment

read as under:-

"14. It is now well-settled by various decisions of this Court as well as those by High Courts that the courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bonafide one. In this connection, the observation of the Privy Council in the case of Ma Shwe Mya v. Maung Mo Hnaung AIR 1922 P.C. 249 may be taken note of. The Privy Council observed:

All rules of courts are nothing but provisions intended to secure the proper administration of justice and it, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should

always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject matter of the suit.

15. It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.

16. Such being the settled law, we must hold that in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case [see B.K. Narayana Pillai v. Parameswaran PillaiMANU/SC/0775/1999 and Baldev Singh and Ors. v. Manohar Singh MANU/SC/3519/2006. Even the decision relied on by the plaintiff in Modi Spinning (supra) clearly recognises that inconsistent pleas can be taken in the pleadings. In this context, we may also refer to the decision of this Court in Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (Dead) 1995 Supp (3) SCC 179. In that case, the defendant had initially taken up the stand that he was a joint tenant along with others. Subsequently, he submitted that he was a licensee for monetary consideration who was deemed to be a tenant as per the provisions of Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This Court held that the defendant could have validly taken such an inconsistent defence. While allowing the amendment of the written statement, this Court observed in Basavan Jaggu Dhobi's case (supra) as follows:

As regards the first contention, we are afraid that the courts below have gone wrong in holding that it is not open to the defendant to amend his statement under Order 6 Rule 17 CPC by taking a contrary stand than was stated originally in the written statement. This is opposed to the settled law open to a defendant to take even contrary stands or contradictory stands, the cause of action is not in any manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action.

17. As we have already noted herein earlier that in allowing the amendment of the written statement a liberal approach is a

general view when admittedly in the event of allowing the amendment the other party can be compensated in money. Technicality of law should not be permitted to hamper the Courts in the administration of justice between the parties. In the case of L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. MANU/SC/0009/1957, this Court observed "that the Courts are more generous in allowing amendment of the written statement as the question of prejudice is less likely to operate in that event". In that case this Court also held "that the defendant has right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to serious injustice."

While allowing this application, the Supreme Court has also observed that the merit of the case is not decided just by allowing the amendment in the written statement.

13. It is well settled law that while considering the issue of

amendment in the written statement to be allowed or not, the court does

not go into the merit of the matter nor it decides whether or not the claim

made therein is bona fide or not. (Ref: 2003 (27) PTC 175 (SC) Lakha

Ram Sharma vs. Balar Marketing Pvt. Ltd.)

14. On the other hand learned counsel for the plaintiff has

referred to the judgment of Division Bench of this court reported in

Vasdev vs. Roop Kumari, 2007(94) DRL 398 (DB). This judgment

is entirely on different facts where the question of limitation of suit

under Section 16 of the Land Acquisition Act was involved and where

contrary destructive plea was not accepted by the court in the

application for amendment of the written statement. In the present case