Shri Ajit Singh vs Smt. Adarsh Kaur Gill & Ors.
2009 Latest Caselaw 4429 Del

           * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                   Date of Reserve: 26.10.2009
                                              Date of Order: November 03, 2009

IA No. 8144/2008 in CS(OS) No. 2167/1993
%                                                                   03.11.2009

      Shri Ajit Singh                                  ... Plaintiff
                           Through: Mr. M.L.Bhargava, Advocate

             Versus

      Smt. Adarsh Kaur Gill & Ors.                ... Defendants
                    Through: Mr. C.A.Sundaram, Sr. Advocate with
                    Ms. Malvika Rajkotia, Ms. Divya Kesar,
                    Ms. Rohini Misra, Mr. Zafar, Mr. Manmohit &
                    Ms. Aradhana Kaura, Advocates


JUSTICE SHIV NARAYAN DHINGRA

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 judgment should be reported in Digest?                          Yes.

ORDER

By this order I shall dispose of an application under Order 6 Rule

17 CPC made by the defendant for amendment of the WS.

2. In the application, the defendant has stated that vide order dated

23rd April, 2008 this Court had allowed the defendant to withdraw the amended

WS and file it again with a suitable application so this application under Order 6

Rule 17 CPC is made. The reason for seeking amendment of the WS is to

crystallize the real question to be determined in the suit. It is submitted that

defendant had earlier filed an application under Order 7 Rule 11 CPC stating that

suit was barred by limitation. This application was dismissed by the Single Judge

of this Court however, in appeal against the order of Single Judge, the Division

Bench held that except reliefs 'A', 'H' & 'I' all other reliefs were barred by

limitation and suit shall proceed in respect of reliefs 'A', 'H' & 'I'. The plea taken

by the defendant is that since trial has not commenced in respect of reliefs 'A', 'H'

& 'I' even the defendant should be permitted to amend the WS since it would not

cause any hardship to the plaintiff.

3. It is further stated that the plaintiff had come to the Court with a

specific plea of existence of a Will and a 'codicil' however, subsequently plaintiff

took a stand that codicil was not available so he should be allowed to delete the

paragraphs from the plaint regarding 'codicil' and the plaintiff would rely upon Will

and other writings of the deceased. Plaintiff was therefore permitted to amend

the plaint so as not to rely on codicil and the defendant was also permitted to

amend the WS accordingly. However, defendant wanted to make further

additions and alterations in the WS and hence this application under Order 6

Rule 17 CPC.

4. This suit is pending in the Court since 1993. WS was filed by the

defendant on 8th November, 1995. The amendment application for amending the

WS without any substantial reason has been made on 8th July, 2008 i.e. after 13

years of the filing of the WS. By way of amendment the defendant wants to

substitute paragraph 01 of preliminary objection, paragraphs no. 5, 6, 31, 36, 37,

38, 39, 41, 43, 45, 51, 53, 54, 59 & 63 of the reply on merits and wants to insert

additional para 5A in the WS. A perusal of these paragraphs, which defendant

wants to substitute now in place of earlier paragraphs shows that defendant has

done nothing but put some more arguments in each paragraph based on the

facts earlier stated by the defendant. By amendment, the defendant wants to

make the WS a lengthy and prolix document containing facts and arguments to

show how the case of the defendant was well founded. By adding para 5A the

defendant wants to assert a claim that the defendant no.1 has been in adverse

possession of the suit property for a period in excess of 12 years before the

commencement of the suit and as such the title, if any, of the plaintiff had already

extinguished by virtue of limitation act and defendant no.1 has become the owner

of the suit property by adverse possession. Rest of the paragraph is again

arguments in favour of the adverse possession claimed by the defendant.

5. Issues in this matter were framed by the Court on 1st February,

2005. After framing of issues the plaintiff filed affidavit of plaintiff's witness in

examination chief in terms of the order of Court. In the meantime plaintiff filed an

application under Order 6 Rule 16 CPC whereby he wanted certain paragraphs

of the plaint regarding 'codicil' to be deleted. Notice of this application was

issued to the defendant and the order dated 6.9.2006 shows that the defendant

stated that he had no objection if the application was allowed. The application

was accordingly allowed and the amended plaint, after deletion of paragraphs

regarding codicil, was taken on record. The Counsel for defendant at that time

stated that he had filed amended WS to the amended plaint. The Counsel for

plaintiff raised objections to the portions of the amended WS which were

unrelated to the amended plaint on the ground that this purported to change the

nature of the defence. The Counsel for defendant sought time to examine the

matter. The amended WS was taken on record subject to objection of the

plaintiff regarding alteration of defence of the defendant and amendments

unrelated to the amended plaint. After the order of 6.9.2006 the defendant, after

about two years, filed the present application seeking amendment of the WS.

This Court vide order dated 4.8.2008 gave directions that the evidence on behalf

of the respective parties be recorded by the Joint Registrar and Registrar should

fix a schedule for recording evidence. The matter was listed on 6th August, 2008,

on which days no witness of defendant no.1 who was to lead evidence was

present. The matter was re-notified for evidence of defendant no.1 on an IA No.

8534/1996 on 11th November, 2008.

6. The learned Counsel for defendant has argued that the law

regarding amendment, specifically in case of WS, was different from the law for

amendment of the plaint. In case of amendment of WS the Courts have been

liberal. On the strength of Sushil Kumar Jain v. Manoj Kumar & Anr. JT (2009) 8

SC 392, learned Counsel for the applicant submitted that the applicant has a

right to elaborate and clarify the earlier inadvertence and confusion made in the

WS and even if there was an admission made in the WS the same can be

explained by amendment of the WS. He submitted that Supreme Court has

observed that amendment of plaint and amendment of WS are not necessarily

governed by the same principles and adding a new ground of defence or

substituting or altering a defence does not raise the same problem as adding,

altering, substituting a new cause of action in the plaint. He also sought support

from Baldev Singh & Ors. v. Manohar Singh & Anr. AIR 2006 SC 2832 and Usha

Balashaheb Swami & Ors. v. Kiran Appaso Swami & Ors. AIR 2007 SC 1663.

7. On the other hand it is submitted by the Counsel for the

plaintiff/non-applicant that the amendment application was another attempt made

by the defendant to delay the proceedings. The amendment could not be

allowed since the trial in this case had already started. It is also submitted that

defendant has given no reason why amendment was being made and what

necessitated the amendment after about 13 years of filing of the WS. He also

submitted that the defendant's application for amendment of the WS was not in

accordance with law. The defendant had not categorically stated the additional

pleading which the defendant sought to add and pleading which defendant

sought to delete or alter, (Kedarnath & Ors. v. Ram Parkash & Ors. 76(1998)

DLT 755 (Full Bench) and Gurdial Singh & Ors. v. Raj Kumar Aneja & Ors.

(2002) 2 SC 445.

8. It is further submitted by plaintiff that seeking of amendment without

giving supporting particulars as to why the applicant, despite due diligence could

not make application prior to that day, could not be permitted more so when the

amendment sought introduced a totally new and inconsistent case. He submitted

that trial is deemed to have commenced once issues are settled and the case is

set down for recording of evidence and the present application had been made

after commencement of trial (Ajenderaprasadaji N.Pande v. Swami

Keshavprakeshdasji N. & Ors. (2006) 12 SCC 1. It is also submitted that merely

because the plaintiff sought deletion of certain paragraphs of his plaint would not

give a ground to defendant to add a new defence and to make substantial

changes in the WS, not related to the amendment in the plaint. He further

submitted that the Court cannot allow the amendment which intends to destroy

the very case earlier pleaded by the defendant and to set up a new and

contradictory case. On the one hand the defendant claimed 1/5 th share in the

property as a co-owner and on the other, the defendant has set up ownership on

the basis of adverse possession. He stated that the two stands taken by the

defendant in the amended WS cannot be allowed and the amendment is liable to

be dismissed. He sought support from Heeralal v. Kalyan Mal & Ors. 1998(1)

SCC 378.

9. It is settled law that the pleading of the parties should be precise

concise and set out the facts distinctly. The pleadings are not supposed to

contain the arguments of the parties nor they are supposed to enunciate the law.

If the suit is not maintainable due to any provision of law, the same can be set

out by the defendant in the preliminary objections or in an application under

Order 7 Rule 11 CPC. In the present case, the defendant, by way of the present

application wants to re-write the entire WS in a different fashion so that the WS

contains elaborate arguments and further details of the same events already

pleaded. I consider that allowing the amendment of the nature as sought by the

defendant where the defendant wants to substitute paragraphs no. 5, 6, 31, 36,

37, 38, 39, 41, 43, 45, 51, 53, 54, 59 & 63 by new paragraphs would only amount

to travesty of justice. Amendment cannot be allowed because of an itch of the

party to amend WS. Amendment can be sought only where due to inadvertence

some facts have not been stated or had missed. Such amendment can be

sought only within reasonable time that also before the start of trial. In the

present case, the defendant has been very hotly contesting the claim of the

plaintiff on the ground of limitation and he moved an application under Order 7

Rule 11 CPC that the entire suit of the plaintiff was barred by limitation. The

defendant was very well aware of her rights flowing from the law of limitation

even at the time of preparing WS and the earlier WS filed by the defendant

contains averments regarding this. Re-shaping the same averments in a

different language, giving more length and breadth to the paragraphs of the WS

only shows a desire of the defendant to prolong the proceedings by whatever

means that can be adopted. Once limitation has been pleaded as a ground that

the suit was not maintainable, the adverse possession being one of the facets of

limitation is included and the defendant's Counsel during arguments himself

stated that he had specifically taken the point of limitation. He argued that

defendant wanted to take the plea of adverse possession as an alternate plea to

the plea of limitation and while claiming adverse possession, the onus of proving

the issue will shift to the defendant and he was prepared to discharge this onus.

Since plea of adverse possession is already covered no amendment is

necessary.

10. I consider that the entire premise of the amendment is being

misused by the defendant. No doubt the Courts have been liberal in allowing

amendment of pleadings and amendment applications have been one of the

potent tools for prolonging litigation to any extent. The amendment applications

have been allowed by the Courts even during appeal after the suit has been

decided by the Trial Court. Considering this practice and use of provision of law,

the Parliament amended CPC and provided that the Court should be careful

while allowing amendment applications and normally amendment should not be

allowed, once the trial has started. The sole purpose of making this change in

law was that while the Courts have to administer justice between the parties,

Courts have to be careful that the provision should not be allowed to be used as

a tool to deny justice by prolonging the litigation itself by one or the other method.

11. The present case is a stark example how amendment can be

sought only on frivolous grounds. No reason has been given by the defendant as

to why this application for amendment was made after 13 years of the filing of the

initial WS. Merely because the plaintiff sought to delete certain paragraphs from

the plaint on the ground that 'codicil' relied upon by the plaintiff was not

traceable/available, the defendant does not get a right to bring out a new WS

substantially changing the existing paragraphs with new arguments and cannot

get a right to have additional and new plea.

12. Even while allowing amendment to the WS the Courts have to be

conscious of the fact that the each litigation must come to an end within a

reasonable time. The Courts, the Executive and the Legislature are showing

their anxiety that the length of the life of a case in the courts must be reduced

and the cases pending for decades are a blot on the face of the judicial system.

The Courts cannot give unwarranted liberties to the litigants of seeking

amendments because of whims and fancies of the advocates. In this case no

new fact is pleaded in the WS. Already pleaded facts are being re-framed and

re-arranged with some arguments added. The whole amendment only seems to

be an effort of delaying the case. No doubt the Courts have held that the rules of

amendment of plaint and WS are to be somewhat different but these

observations do not give a license to the defendant in adopting to dishonesty

either in prosecuting a case or in amendment of the WS. Dishonesty cannot be

encouraged by the Courts nor can the Courts encourage the efforts of litigants to

delay the proceedings as long as possible by one or the other method.

13. I find no force in the present amendment application. The

application is dismissed with costs of Rs.50,000/-. Costs be paid within two

weeks.

CS(OS) No. 2167/1993

Since plaintiff has only deleted some paras of original plaint, the

defendants' WS originally filed shall be considered good enough sans the reply

to the deleted paras. Matter be listed before Joint Registrar for fixing dates of

cross examination of witnesses on 19th November, 2009

November 03, 2009 SHIV NARAYAN DHINGRA, J.

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