Mrs. Rajni Monga vs Hardeep Kumar & Ors.
2009 Latest Caselaw 1885 Del

*          HIGH COURT OF DELHI : NEW DELHI

+            IA No.2887/09 in CS (OS) No. 558/2007

%                     Judgment reserved on :               24th April, 2009

                      Judgment pronounced on :             5th May, 2009

MRS. RAJNI MONGA                               ..... Plaintiff
        Through Mr.Kirti Uppal with
                Mr.Sanjeev, Advs.

                                 versus

HARDEEP KUMAR & ORS.                 ..... Defendants
       Through Mr.S.P. Mehta, Adv. for D-1.


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. By this order, I shall dispose of the plaintiff's application

under Order 6 Rule 17 read with Section 151 CPC being I.A. No.

2887/09.

2. The plaintiff has filed the aforesaid suit for declaration,

injunction, partition and recovery of mesne profits. The plaintiff has

filed the present application pursuant to the order dated 19 th August,

2008 wherein this court directed the plaintiff to amend the plaint for

properly valuing the suit in respect of several reliefs claimed. It was

also directed that the plaintiff should examine the objection raised by

the defendants with respect of mis-joinder of causes of action.

3. It is submitted by the plaintiff that the defendants' objection

with respect to alleged mis-joinder of cause of action is completely

vague and incorrect as it is the case of the plaintiff that the property

bearing No.D-1/27, Vasant Vihar, New Delhi was gifted to the plaintiff

by her mother Late Smt.Kailash Kumari vide registered gift deed dated

6th August, 1997 and the same was in possession of the tenant, namely,

PLO Embassy. In the Will dated 6th August, 1997 of Late Smt. Kailash

Kumari, this property has been given to the plaintiff to the exclusion of

other heirs. Thus, by including the relief pertaining to this property,

there is no mis-joinder of cause of action as alleged. It is further stated

that the defendant No.1 with malicious intention has forcibly deprived

the plaintiff from utilizing the rental income of the property gifted to the

plaintiff by her mother, therefore, the plaintiff filed the present suit not

only for partition based on Will dated 6 th August, 1997 but also for

declaration, injunction and recovery of mesne profits in respect of

property bearing No.D-1/27, Vasant Vihar, New Delhi mentioned in the

Will. Accordingly by prayers (f), (g) and (h), the plaintiff prayed before

this court as under:-

a) Pass a decree of Rs.36,00,000/- towards rentals illegally

collected by Defendant No.1 for the last three years along

with interest @ 18% p.a.

b) Pass a decree of mesne profits in respect of rentals of

property No.D-1/27, Vasant Vihar, New Delhi, after

holding an enquiry as per Order XX Rule 12 CPC.

c) Direct defendant No.1 to deposit all future rentals in respect

of property No.D-1/27, Vasant Vihar, New Delhi in this

Hon'ble court till the property is vacated and file accounts

in respect of previous rentals paid by the tenant i.e. PLO

Embassy.

4. This application has been opposed by the defendants on

various grounds, details of which are given as under:-

a) That the valuation of the property as accessed by the plaintiff

is illegal as the Government has already declared circle rates of the

immoveable properties, independently, of each year and as such the

minimum market value of every property has to be accessed as per

the said rates.

b) That the suit filed by the plaintiff has no cause of action as

the plaintiff has claimed partition of the properties which have

already been sold by the deceased Smt. Kailash Kumari during her

lifetime on the basis of forged and fabricated Will.

c) That during the course of arguments on the application under

Order 7 Rule 11 CPC when the court was going to dismiss the suit of

the plaintiff on the basis of incorrect valuation, the plaintiff sought

time for further instructions and amendment of the suit, therefore,

this application is baseless, illegal and cannot be allowed.

5. It is well settled law that while considering application for

amendment of the plaint, the merit of the case is immaterial as

observed in the case of Lakha Ram Sharma vs. Balar Marketing

Pvt Ltd reported in 2003 (27) PTC 175 (SC). It is not in dispute

that the case is at the initial stage and if the amendment is allowed,

no prejudice will be caused to the defendants as the issues in the

matter are yet to be framed. As regards the preliminary objection

raised by the defendants is concerned, the said objections have to be

decided on merit and the same can be considered at the time of

framing of issues. If the suit is not maintainable as alleged by the

defendants, a preliminary issue in this regard can be framed and the

arguments can be addressed by the parties. Insofar as the present

application is concerned, there is no bar to allow the said amendment

at this stage in view of the well settled law on amendment. Thus, the

amendment sought is allowed subject to costs of Rs.10,000/- to be

paid by the plaintiff to the defendants within four weeks from today.

The amended plaint is taken on record. The defendants may file the

written statement, if any, within four weeks from today. List the suit

for framing of issues as well as hearing of the pending applications

on 11th August, 2009.

MANMOHAN SINGH, J MAY 05, 2009 SD