Sh. Preetinder Singh Thapar vs Sh. Hardeep Singh Thapar & Ors.
2009 Latest Caselaw 3512 Del

*          HIGH COURT OF DELHI : NEW DELHI

+          I.A. No.14912 /2008 in C.S. [OS] No.1146 /2007

                                 Reserved on:     3rd August, 2009

%                                Decided on:    2nd September, 2009

Sh. Preetinder Singh Thapar                          ...Plaintiff
                      Through : Mr. V.K. Makhija, Sr. Adv. with
                                Mr. Akshay Makhija, Mr. Vikas
                                Bhadauria and Ms. Roma Bhatara,
                                Advs.

                       Versus

Sh. Hardeep Singh Thapar & Ors.                     ....Defendant
                    Through : Mr. J.P. Sengh, Sr. Adv. with
                              Mr. Mayank Yadav, Adv. for
                              Defendant No.4
                              Mr. Bipin Kumar Sharma, Adv. for
                              Kotak Mahindra Bank Ltd. in
                              IA No.3855/2009

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                               No

2. To be referred to Reporter or not?                            No

3. Whether the judgment should be reported                       No
   in the Digest?

MANMOHAN SINGH, J.

1. By this application under Order VI rule 17 CPC, the plaintiff

(hereinafter referred to as the „applicant‟) seeks leave to amend the

plaint by incorporating new paragraphs as mentioned in the application.

In substance, the applicant is seeking the new relief of cancellation of

the sale deeds dated 16th January, 2003 and 23rd April, 2007 relating to

the fact that defendant No.1 had no right to sell any portion of the

property No.A-78, Malviya Nagar, New Delhi, and the same are null

and void as the same are in the teeth of status-quo order dated 12th

January, 1983 granted qua the suit property in W.P.(C) No.16/1983,

wherein the plaintiff and defendant Nos.1 and 2 were also parties in the

capacity of petitioners.

2. The plaintiff has filed the original suit for declaration, pre-

emption of sale, cancellation of sale deeds and permanent injunction.

Following are the prayers made in the plaint:-

"a) pass a declaratory decree in favour of the plaintiff and against the defendants that property bearing No.A-78, Malviya Nagar, New Delhi comprising of Ground Floor/First Floor/Second Floor (partly constructed) is joint property of plaintiff, defendants No.1 and 2 and the same was never partitioned amongst themselves and there is no partition amongst the owners/co-sharers.

b) pass a decree declaring in favour of the plaintiff and against the defendants that the sale deed dated 16 th January, 2003 executed by defendant No.1 in favour of defendant No.3 of Second Floor with roof rights thereof, registered with Sub Registrar-V vide registration No.446, Volume 3187, Page 183 to 193 on 16 th January, 2003, claiming as exclusive property belonging to him is null and void and cancel the same being joint property and in violation of the provision of Section 22 of the Hindu Succession Act and for want of notice to the plaintiff and further sale by defendant NO.3 in favour of defendant N.4 vide registration No.4672, Book No.1, Vol. No.7222, page 36 to 49 on 23 rd April, 2007 with the Sub-Registrar V, New Delhi is also null and void and does not confer any title, right or interest on him.

c) pass a decree of pre-emption in favour of plaintiff under Section 22 of the Hindu Succession Act, declaring and holding that the plaintiff being a co-owner/co-sharer has right to pre-empt the sale dated 16th January, 2003 made by defendant No.1 in favour of defendant No.3 for consideration of Rs.5 lakhs, the valuable consideration reflected therein and defendant No.1 be directed to execute the sale deed in favour of plaintiff for such consideration.

d) restrain defendant No.4, from alienating, selling,

mortgaging or parting with possession of the suit property to any person and to create third party interest and further restrain defendant No.4, his agents, assigns, LRs, Power of Attorney holders or any person/s claiming through him directly or indirectly from raising any sort of construction on the second floor of the property No.A-78, Malviya Nagar, New Delhi and above second floor and further not to make any addition, alteration or renovation on the second floor. The defendant No.4 be further restrained from causing any obstruction or hindrance or interference with the use, enjoyment, access of the roof of the second floor and car parking lot on the ground floor under the lock and key of the plaintiff of property No. A-78, Malviya Nagar, New Delhi."

3. By ex-parte orders dated 18th May, 2007, the defendant

No.4 was ordered to maintain status quo in respect of title, possession

and status of property bearing No.A-78 Malviya Nagar, New Delhi.

This order was, later on by order dated 15th October, 2008, modified

whereby the defendant No.4 was allowed to complete the white wash

on the structure. The defendant Nos.1 to 3 were proceeded ex parte by

order dated 25th July, 2007.

4. This Court vide order dated 7th August, 2008 put it to the

notice of counsel for the plaintiff that under Article 97 Schedule I of the

Limitation Act, 1973, the limitation of enforcing the right of pre-

emption is one year from the date when possession under the sale is

taken over or if possession is not taken over, then one year from the

date when the instrument of sale is registered. As per plaint, the sale

was effected by the defendant No.1 in favour of defendant No.3 on 16 th

January, 2003 and the plaintiff has not claimed any relief of partition in

the present suit. The present suit was filed in the year 2007. The suit

for the relief of pre-emption is therefore, barred by time. Learned

counsel for the plaintiff has conceded before the Court on 15 th October,

2008 during the course of hearing that the relief of pre-emption

claimed is barred by time and has shown his desire to amend the plaint

by filing amendment application. On 5th December, 2008 notice was

issued in the application for amendment of plaint by the plaintiff

seeking cancellation of the abovesaid sale deeds and for the relief of

possession.

5. It is averred in the application that though the plaintiff has

made all the necessary averments in his existing suit pertaining to the

status-quo order qua the suit property but he has inadvertently left out

the relief of cancellation of the said sale deeds of the specific portion of

the suit property as the same were executed during the operation of

status quo order of this Court passed in the said writ petition besides the

fact that there was no partition of the property No.A-78, Malviya Nagar,

New Delhi.

6. The plaintiff seeks permission of this Court to add the

following new paras 10 to 12 in place of paras of original plaint. New

paras 10 to 12 read as under:-

"10. That during the pendency of the writ petition and operation of status-quo order dated 12th January, 1983, which was also made absolute on 22nd April, 1983 in the presence of the parties, i.e. plaintiff and defendants NO.1 and 2, the defendant No.1 on 16th January, 2003 sold the second floor with roof right to the defendant No.3 for the consideration of Rs.5,00,000/- by making a false statement in the sale deeds that the suit property has been orally partitioned amongst the brothers and sister. Though, fully aware that there was no partition of the suit property and the suit to this effect filed by him claiming one-fourth share in the suit property was dismissed in default and was never got restored. The said sale deed dated 16th January, 2003 was executed during the

operation of order of status-quo transferring a specific portion of the suit property without there being the partition of the suit property amongst its co-sharers by metes and bounds. Therefore, it is a null and void sale deeds having no value in the eyes of law. Even the alleged Partition Deed dated 17 th November, 2000 alleged to have been executed is a forged document as the plaintiff - S/Shri Preetinder Singh Thapar, Onkar Singh Thapar and Ms. Narinder Kaur had never appointed Shri Amarjeet Singh Bawa as their Attorney to execute any deed much less a Partition Deed. The alleged Power of Attorney is also a forged document.

The suit property remained joint and undivided amongst its co-sharers and co-owners. The plaintiff is the co-sharer of the suit property No. A-78, Malviya Nagar, New Delhi, along with defendants No.1 and 2. Since the suit property has remained a joint property, the defendant No.1 had no legal right to sell any specific portion of the suit property till it remains undivided. The sale deed dated 16 th January, 2003 transfers a specific portion of the suit property, i.e. second floor with roof rights, which is an illegal and unlawful transfer of the suit property and also in violation of status-quo order dated 12th January, 1983.

11. That the sale of the second floor with roof rights of the suit property vide sale deed dated 16th January, 2003 is also an illegal and void by the reason that before executing the said sale deed dated 16th January, 2003, defendant No.1 had already availed the loan facility of Rs.40,00,000/- from the Citi Financial by creating the equitable mortgage of the second floor of the suit property as security, therefore, the defendant No.1 was legally impaired to transfer the said portion of the suit property in favour of defendant No.3. The bank also initiated the proceedings under Section 9 of the Arbitration and Conciliation Act, which was disposed of on 25th September, 2007, on the statement of defendant No.1 who appeared in person that he would not create any third party interest in the mortgage premises. The plaintiff has come to know about the said pledging when the Court Commissioner appointed under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, came to the suit property to take the possession of the mortgaged premises under the Order of the Court.

That the defendant No.3 further sold the property in question i.e. second floor with roof rights to defendant No.4 on 23 rd April, 2007 for Rs.9 lakhs relying upon the earlier sale deed dated 16th January, 2003. The said sale deed is registered vide registration No.4672, Book No.1, Vol. No.7222, page 36 to 49

on 23rd April, 2007 with the Sub-Registrar V, New Delhi. The original is in possession of defendant No.4 only.

12. That the fact that the suit property remained joint and there was no partition of the suit property amongst its co- sharers and co-owners by metes and bounds is further substantiated by the fact that on 29 th March, 2005, the plaintiff and the defendants No.1 and 2 jointly filed the eviction suits bearing Nos. E-68, E-69 and E-70 in the Court of Rent Controller, New Delhi, against the tenants of the ground floor of the suit property for defaulting in making the rent of the tenanted premises, wherein the suit property is claimed to be the joint property of the plaintiff and defendants No.1 and 2.

That the defendant No.4 came to the property on 30 th May, 2007, then he revealed about the purchase of the property by him from defendant No.3. However, he failed to part with the papers. The defendant No.4 did not allow the plaintiff to come upstairs and even to go to roof of second floor to inspect the water tank. The defendant No.4 called two/three persons and started dismantling portion(rear) of the said property, which was objected by the plaintiff. The defendant No.4 threatened plaintiff to park his cars on the ground floor in the parking lot in exclusive use and occupation of plaintiff from 1982-1983 till date being co-owner and to break open the lock, if he is not permitted to do so. The plaintiff tried to contact defendant No.1 who in turn, failed to respond. The plaintiff called police by dialing 100 number. Police came to the spot on 31st May, 2007 and defendant No.4 to the police station and recorded statement of plaintiff. However he was released after interrogation."

7. The plaintiff also seeks to amend the valuation clause as

under :

"the valuation of the suit for declaration is fixed at Rs.200 and requisite court fees has been paid. The valuation of the suit for the purposes of permanent injunction is fixed at Rs.130/- and required court fees has been fixed. The valuation of the suit for cancellation of sale deeds and possession is fixed at Rs.21 lac being the market value of the suit property. Advalorem court fees has been paid on the same. The valuation of the suit property for pre-emption of the sale deed dated16.01.2003 is fixed at Rs.5 lac as consideration reflected therein and court fee has been paid thereon.

8. The plaintiff thus sought to add the word „possession‟ in the

cause title and wants to add the following prayer in para (e) of the

prayer clause :

"(e) pass a decree of declaration in favour of the plaintiff and against the defendants that the clandestine sale deed dated 16th January, 2003 in favour of defendant No.3 of second floor with roof rights thereof registered with Sub Registrar V, New Delhi vide Registration No.446, Addl. Book No.1, Vol. No.3187, on pages 183- 193 on 16th January, 2003 claiming as exclusive property of defendant No.1 is null and void and a decree for the cancellation of sale deed be passed and further sale by defendant No.3 in favour of defendant no.4 vide registration No.4672, Addl. Book No.1, Vol. No.7222 on pages 36-49 on 23rd April, 2007 with the Sub-Registrar- V, New Delhi is also null and void and does not confer any title, right or interest in him and the plaintiff seeks a decree of cancellation of the said sale deed." The plaintiff further prays that a decree for possession be passed against defendant Nos.3 and 4 in respect to the second floor and the top floor of property No.A-78, Malviya Nagar, New Delhi and in favour of the plaintiff as shown in the plan attached.

9. It is stated by the plaintiff that the amendments sought to be

incorporated by way of this application are bona-fide and necessary for

the purpose of determining the real question in controversy between the

parties. The same have been left out inadvertently in the main pleadings

and will not change the character of the pleadings and the reliefs sought

in the suit. It is further submitted that as regards the relief of

cancellation of sale deeds, the said relief is already available in the

existing plaint and the plaintiff has now only elaborated his

contentions in the additional paras 10 to 12 of the proposed paras of

amendment, therefore, no prejudice shall be caused to the defendants if

the aforesaid amendments are allowed.

10. The defendants have opposed the present application on the

grounds that by way of amendment the cause of action will be changed

and the applicant is raising a fresh cause of action. It is contended that

this court has no pecuniary jurisdiction to entertain the present suit as

the relief claimed for cancellation of the sale deed dated 23 rd April 2007

has the value of Rs.9 lac only and therefore, the jurisdiction vests in the

District Court. It is further contended that the suit of the plaintiff is

barred by limitation as the sale deed pertains to the year 2003.

11. It is admitted by the defendants that the plaintiff, defendant

No.1 and defendant No.2 had 1/3rd share each in the house. It is

submitted that defendant No.4 is a bonafide purchaser of the suit

property and a sale deed is registered in his favour. The amendment

sought by the plaintiff was already in the knowledge of the plaintiff at

the time of institution of suit and has not been included deliberately in

the plaint. Thus, plaintiff has waived his right and the amendments are

barred under the provisions of CPC.

12. In the plaint, it is asserted that by virtue of execution of lease

and conveyance deed dated 25th May, 1991 the plaintiff and defendant

Nos.1-2 became the co-owners and co-sharer of the suit property. The

defendant No.1 filed a suit for partition of the property relying upon the

abovesaid lease and conveyance deed. The suit was dismissed. Mr.

Onkar Singh Thapar s/o first wife of Late Captain Dr. K.S. Thapar filed

an application claiming a share before the settlement officer, Ministry of

Rehabilitation which was accepted. The parties to the suit also filed a

writ petition No.16/1983 against the abovesaid order wherein a status

quo order was passed on 12th January, 1983. The writ petition was

ultimately decided in favour of the plaintiff, defendant No.1 and

defendant No.2.

13. In the plaint, the plaintiff in para 9 submitted that since no

partition ever took place between co-owners and co-sharers, the

defendant No.1 claiming himself as exclusive owner of the second floor

illegally sold it to defendant No.3 who thereafter sold it to defendant

No.4. In para 15 of the plaint also, the plaintiff reiterated that no

partition has taken place till date.

14. During the hearing of application, learned counsel for the

plaintiff has pointed out a mistake which has occurred due to typing

wherein while amending the cause title of the suit, the word pre-

emption of sale again re-occurred in place of possession as mentioned

in para 6 A of the application in which the amendment is sought.

15. Per contra, the defendant No.4 stated that there was oral

partition between the parties wherein the ground floor came into the

ownership of defendant No.2, the first floor had fallen into the share of

the plaintiff and second floor with roof rights came to the share of

defendant No.1, therefore, the defendant No.4 has rightly purchased

the property from the defendant No.1.

16. In support of his submission, he has referred the judgment

reported as Vijendra Kumar Goel vs. Kusum Bhuwania (smt.),

(1997) 11 SCC 457 wherein it is held in para 4 as under :

"4. In the instant case the High court appears to have proceeded on the basis that in the plaint the plaintiff- respondent has made out a case for specific performance

and nothing new had been sought for by way of amendment. We have perused the plaint. We are unable to agree with the said view of the High Court. It is no doubt true that in the plaint the plaintiff-respondent has made a reference to the agreement and his having requested the appellant to execute the sale deed. But there is nothing in the plaint to show that the plaintiff-respondent was seeking specific performance of the contract. The suit, as framed, is a suit for declaration and injunction only. It was sought to be converted into a suit for specific performance by the plaintiff-respondent by way of amendment in the plaint in 1993 when the claim for specific performance had become barred by limitation. The submission of Shri Dhavan is that even on the date of the filing of the suit, the claim for specific performance was barred by limitation. We do not propose to go into that question."

17. The judgment of the Apex Court in Vijendra Kumar Goel

(supra) is not directly applicable to the facts of the present case as it

appears from para 4 of the judgment that there was nothing in the plaint to

show that the plaintiff was seeking specific performance of the contract,

further it was a suit for declaration and injunction only and the plaintiff

wanted to convert it into a suit for specific performance when the said

claim had already became barred by limitation. However, in the present

case, all the necessary averments pertaining to the cancellation of sale

deed are mentioned in the existing plaint. Not only that, even prayer (b)

of the plaint contains the same relief. Further, the amendment now sought

by the plaintiff also does appears to be prima facie barred by limitation as

the sale deed was executed by the defendant No.3 in favour of defendant

No.4 on 23rd April, 2007 and the present application is filed in 2008.

Another fact of the matter is that the defendants no.1-3 are ex parte, they

have not come forward to deny the averment made by the plaintiff.

Therefore, I find no force in the contention of the defendant to oppose

the present application when as per law, each and every averment of the

plaintiff is yet to be examined and tested at the appropriate stage of the

matter on merit. Therefore, refusing of amendment would prejudice the

legal valuable rights of the plaintiff as claimed.

18. 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.

19. It is also well settled law that an amendment which is

necessary to decide the real controversy between the parties and which

will not prejudice the parties, should be allowed. The merits of

amendment sought to be incorporated by way of amendment are not to

be adjudged at the stage of allowing prayer for amendment. [Rajesh

Kumar Aggarwal & Ors. vs. K.K. Modi] (2006) 4 SCC 385.

20. I am of the considered view that in the interest of justice and to

effectively adjudicate the real dispute between the parties, the amendment

should be allowed.

21. In view of my above discussion, I find no merit in the

contention raised by defendant. The application of the plaintiff under

Order VI Rule 17 CPC is allowed. The amended plaint be taken on

record. Amended written statement be filed within two weeks.

Replication within two weeks thereafter.

C.S. [OS] No.1146 /2007

List this matter before the Court on 6th November, 2009.

MANMOHAN SINGH, J SEPTEMBER 2, 2009 nn