Smt. Kailash Sharma vs Sh. Jagdish Lal Sharma & Others
2010 Latest Caselaw 5464 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment Pronounced on: 01.12.2010

+           CS(OS) No.565/2008

SMT. KAILASH SHARMA                           .....Plaintiff

                          - versus -

SH. JAGDISH LAL
SHARMA & OTHERS                              .....Defendants

Advocates who appeared in this case:
For the Plaintiff : Mr. Pramod Ahuja, Advocate.


For the Defendant : Mr.B.R.Saini, Adv. for D-1.

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

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                Yes
   in Digest?

V.K. JAIN, J. (ORAL)

IA 10668/2010 (O.6 R.17 CPC)

1. This is an application for amendment of plaint.

This suit has been filed for partition of the properties which

were owned by late Pt. Bhola Nath Sharma, father of the

parties to the suit. The plaintiff has sought partition of two

properties bearing No. F-105-110, Lajpat Nagar II, New

Delhi. In para 3 of the plaint, it is alleged that plaintiff is

not aware of the existence of any other movable and

immovable assets left by late Pt. Bhola Nath Sharma.

Now, the plaintiff wants to amend the plaint so as

to plead that late Pt. Bhola Nath Sharma was also owner of

property bearing No. 31, Pushpa Market, Central Market,

Lajpat Nagar, New Delhi-110024 and, therefore, he is also

entitled to a share in that property.

2. It is alleged in para 13 of the application that

inadvertently in the prayer clause, the plaintiff has not

specifically mentioned his rights in property No. 31, Pushpa

Market, Central Market, Lajpat Nagar, New Delhi-110024.

He is also seeking to challenge the Will alleged to have been

executed by late Pt. Bhola Nath Sharma on 8.8.1979 in

respect of property No. 31, Pushpa Market, Central Market,

Lajpat Nagar, New Delhi-110024.

3. Admittedly, the plaintiff had earlier filed a suit for

injunction in respect of property No. 31, Pushpa Market,

Central Market, Lajpat Nagar, New Delhi-110024.

Admittedly, in the aforesaid suit, the defendants had set up

the Will dated 8.8.1979 alleged to have been executed by

late Pt. Bhola Nath Sharma, father of the parties, in respect

of the aforesaid property. Thereafter, the suit for injunction

was withdrawn on 31.01.2008. The present suit has been

filed on 25.03.2008.

4. The proposed amendment has been opposed by the

defendants primarily on the ground that since the trial has

already begun, in view of the bar contained in the proviso to

Order VI Rule 17 of CPC, the proposed amendment cannot

be allowed.

5. The proviso to Order VI Rule 17 of CPC provides

that no application for amendment shall be allowed after the

trial has commenced unless the Court comes to conclusion

that in spite of due diligence, the party could not have

raised the matter before the commencement of trial. Issues

in this case were framed on 6.1.2009. Three affidavits by

way of evidence have been filed by defendants No.2 & 3

whereas one affidavit by way of evidence has been filed by

defendant No.1. Defendant No.1 is already under cross-

examination. Thus, it cannot be disputed that the trial has

already begun.

6. In Vidyabai vs. Padmalatha 2009 (2) SCC 409,

referring to the proviso added to Order VI Rule 17 of CPC by

way Civil Procedure Code (Amendment) Act, 2002, Supreme

Court observed that the proviso is couched in a mandatory

form and held that the jurisdiction of the Court to allow an

application for amendment is taken away unless the

conditions precedent therefor are satisfied viz. it must come

to a conclusion that in spite of due diligence the parties

could not have raised the matter before the commencement

of the trial. The Court clearly held that no application for

amendment shall be allowed unless the Court is satisfied

that in spite of due diligence the matter could not be raised

before the commencement of trial. The Court was of the

view that the proviso puts an embargo on the exercise of

jurisdiction by the Court and unless the jurisdiction fact as

envisaged in the proviso is found to be existing, the Court

will have no jurisdiction at all to allow the amendment of

the plaint.

7. It is settled proposition of law that an amendment

should generally be allowed, unless it is shown that

permitting the amendment would be unjust and would

result in prejudice to the opposite party which cannot be

compensated by cost or would deprive him of a right which

has accrued to him with the lapse of time. Errors or

mistakes, if not fraudulent, should not be made a ground

for rejecting the application for amendment of plaint or

Written Statement. If there is no undue delay, no

inconsistent cause of action is introduced and no vested

interest or accrued legal right is affected and the application

for amendment is not mala fide or will not prejudice the

opposite party, the amendment should ordinarily be

allowed.

8. In Rajkumar Gurawara (Dead) through LRs. Vs.

S.K. Sarwagi and Co. Pvt. Ltd. and Anr. AIR 2008 SCC

2303, Supreme Court, referring to the aforesaid proviso to

Rule 17 of Order VI, inter alia, observed as under:-

"The said rule with proviso again substituted by Act 22 of 2002 with effect from 01.07.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings able to satisfy the court that in spite of due diligence could not raise the issue before the commencement of trial and the court satisfies their explanation, amendment can be allowed even after commencement of the trial. To put it clear, Order VI Rule 17 C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings

on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso."

9. Before the proviso came to be added to Order VI

Rule 17 of CPC, it was not uncommon for the unscrupulous

litigants, who, for one reason or the other, were not interest

in expeditious disposal of the case, to prolong the trial by

seeking unnecessary and sometimes mala fide and frivolous

amendments, in order to delay the progress of the trial.

This mischief was sought to be remedied by the legislature

by putting an embargo on the power of the Court to allow

amendments, once the trial has begun.

That precisely was the objective behind adding the

aforesaid proviso to the statute book. The legislative intent,

therefore, needs to be given a meaningful effect and,

therefore, unless the amendment sought by a party squarely

falls in the four corners of the legal provision, the Courts

need to discourage such amendments. The legislative intent

cannot be frustrated by the Courts by giving so liberal an

interpretation as to allow the amendment even where they

find that the amendment now sought by the party could, on

exercise of due diligence, have been conveniently sought

before the trial began.

10. The only explanation given by the plaintiff for not

including property No. 31, Pushpa Market, Central Market,

Lajpat Nagar, New Delhi-110024, amongst the properties

owned by late Pt. Bhola Nath Sharma is that inadvertently

prayer with respect to this property could not be made in

the plaint. As noted earlier, in para 3 of the plaint, the

plaintiff specifically alleged that she was not aware of the

existence of any of the other movable and immovable asset

left behind by late Pt. Bhola Nath Sharma. She further

alleged that after due enquiries, she had able to verify and

ascertain that property No. F-105-110, Lajpat Nagar II, New

Delhi, was the self-acquired property of late Pt. Bhola Nath

Sharma. Since the suit filed by plaintiff for grant of

injunction pertained to property No. 31, Pushpa Market,

Central Market, Lajpat Nagar, New Delhi-110024, he cannot

claim that he was not aware that the aforesaid property was

owned by late Pt. Bhola Nath Sharma. The Will dated

8.8.1979 with respect to property No. 31, Pushpa Market,

Central Market, Lajpat Nagar, New Delhi-110024 had been

set up by the defendants before the civil suit filed by him for

grant of injunction was withdrawn by the plaintiff on

31.01.2008. This also shows that the plaintiff was aware of

the ownership of the aforesaid property when this suit was

filed on 25.03.2008. Not only the plaintiff was aware of the

existence and ownership of the aforesaid property, she was

also aware that the defendants were claiming ownership

with respect to that property by virtue of the Will dated

8.8.1979 alleged to have been executed by late Shri Bhola

Nath Sharma in their favour.

11. In these circumstances, it is difficult to come to the

conclusion that the plaintiff inadvertently could not include

property No. 31, Pushpa Market, Central Market, Lajpat

Nagar, New Delhi-110024 in the prayer clause. She was

very much aware, on account of the Will set up by the

defendants in the previous suit that this property was

owned by late Pt. Bhola Nath Sharma and the defendants

were claiming to be the owners of that property to her

exclusion. Despite that she chose not to seek partition with

respect to that property and went to the extent of claiming

that she was not aware of the existence of any other

movable and immovable assets left by late Pt. Bhola Nath

Sharma except property No. F-105-110, Lajpat Nagar II,

New Delhi.

12. In these circumstances, there is no escape from

the conclusion had the plaintiff exercised due diligence, she

would have been able to claim partition in respect of

property No. 31, Pushpa Market, Central Market, Lajpat

Nagar, New Delhi-110024, while filing this suit.

The proposed amendment is clearly hit by the proviso

to Order VI Rule 17 of CPC.

The application is dismissed.

IA 12756/2010 (O.1 R.10 CPC)

1. Vide this application, the plaintiff was seeking to

implead the sons of defendant No.1 as defendants No.4 & 5

in this suit. The learned counsel for the plaintiff does not

press this application.

2. Dismissed as not pressed.

IA 9747/2010 (O.26 R.4 CPC)

1. This is an application for examination of the

plaintiff on commission. The plaintiff is stated to be sick

and not in a position to attend the Court in person. The

plaintiff is no other than the sister of the defendants.

2. There is no opposition to the request. The

application is, therefore, allowed and it is directed that at an

appropriate stage, the plaintiff will be examined on

commission. The request for appointment of Local

Commissioner can be made at the stage when the plaintiff is

sought to be examined.

3. This application stands disposed of accordingly.

IA 11206/2010 (u/S.151 CPC for directing the defendant No.2 to file the Will dated 8.8.1979)

Vide this application, the plaintiff has sought

production of the Will dated 8.8.1979 alleged to have been

executed by late Pt. Bhola Nath Sharma in favour of the

defendants. Since the application of the plaintiff for

amendment of the plaint had been dismissed and the scope

of the present suit is confined to F-105-110, Lajpat Nagar II,

New Delhi, the prayer made in this application cannot be

granted.

CS(OS) 565/2008

List the matter before the Joint Registrar for

further cross-examination of the witnesses on 21st January,

2011.

(V.K. JAIN) JUDGE

DECEMBER 01, 2010 'SN'