Delhi High Court

Pramod Khanna & Anr. vs Subod Khanna & Anr. on 10 February, 2010

Author: Manmohan Singh

.*           HIGH COURT OF DELHI : NEW DELHI

+          I.A. No. 9765/2008 in CS (OS) No. 2203/2006

     Pramod Khanna & Anr.                               ...Plaintiffs
                   Through : Mr. Sandeep Aggarwal, Adv.

                                  Versus

     Subod Khanna & Anr.                                       ...Defendants
                   Through : Mr. G.D. Chopra, Adv.

Decided on : February 10, 2010

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?                    Yes

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

MANMOHAN SINGH, J.

1. The plaintiffs filed the present application being I.A. No.

9765/2008 under Order VI Rule 17 read with Section 151 of the Civil

Procedure Code, 1908 for amendment of the plaint.

2. The present suit was filed claiming the following reliefs :

"(a) pass a decree of permanent injunction in favour of plaintiffs and against the defendants, whereby, the defendants acting themselves or through their agents, servants, attorneys, etc. be restrained from carrying out any construction activities on part "A" & "C" of property bearing No.W-105, Greater Kailash Part-II, New Delhi- 110048, belonging to the plaintiffs, as described in the site plan of the property annexed with the sale deeds;

(b) pass a decree of declaration in favour of plaintiffs and against the defendants, thereby declaring any purported documents such as, Family Settlement, Relinquishment

Deed/Deeds, Affidavits etc. in respect of property bearing No.W-105, Greater Kailash Part-II, New Delhi-110048, signed and executed by the plaintiffs as illegal, null and void;

(c) pass a decree of Mandatory Injunction in favour of plaintiffs and against the defendants, whereby directing the defendants to remove any construction from the Plot bearing no.W-105-A and W-105-C, Greater Kailash Part-II, New Delhi-110048, the same being illegal and done without authority;

(d) award cost in favour of the plaintiffs and against the defendants."

3. The brief facts of the case are that the plaintiffs filed a suit for

declaration, permanent and mandatory injunction against the Defendants

with respect to property No.W- 105, Greater Kailash-II, New Delhi

110048 (hereinafter referred to as the "suit property"). The Plaintiffs

submit that Plaintiff No. 1 and Defendant No. 1 are brothers and the

family owned several properties in Delhi and NCR. Due to certain

disputes between their families, they submitted their differences to Sh.

Punam Suri and Sh. Prem Nath Chopra of M/s Daily Milap Pvt. Ltd. for

conciliation.

4. A Family Settlement was arrived at after much deliberation

as part of which the Defendants were to give a certain sum of money to

the Plaintiffs, as their share of the properties was of considerably much

more value.

5. The Defendants paid part of this sum and allegedly refused to

pay the rest, failing to complete their obligation under the purported

family settlement. The Plaintiffs also submit that in the wake of the

Defendants‟ request to the MCD for mutation of the suit property, the

Plaintiffs intimated the MCD about the incomplete settlement which

allegedly would have no effect till the defendants completed their

obligation under it and both the parties signed and got the same

registered.

6. On the other hand, the Defendants submit that the

negotiations ended on 24.03.2006 with an oral settlement which was

reduced into a written family settlement on 04.04.2006 and that there

was no requirement of signatures of either party nor was there any

direction to the Defendants to pay any money to the Plaintiffs.

7. The Defendants deny that the settlement was drawn up by the

alleged conciliators and submit that it was in fact prepared by the legal

advisors of the Plaintiffs and the terms were then mutually settled. The

Defendants also submit that a memorandum of family settlement does

not require registration.

8. An interim application no. 13252/2006 was filed by the

Plaintiffs under Order XXXIX Rules 1 and 2 on 27.11.2006 for an ex-

parte ad-interim injunction against the Defendants with regard to the suit

property. This Court vide order dated 18.04.2007 directed both parties to

maintain status quo of the title and possession in the properties

mentioned in the Schedule to the document dated 04.04.2006.

9. The plaintiffs filed an interim application no. 5393/2007 for

correction/modification of the above said order dated 18.04.2007 and

this Court modified the said order vide order dated 23.05.2007 by adding

the following,

"It is further directed that the Defendant No. 1 shall not encumber the suit property bearing no. W-105 Greater Kailash-II, New Delhi 110048."

10. Vide order dated 17.03.2008, this Court allowed I.A No.

12127/2007 filed by the Defendants for letting out their respective

properties by allowing the parties to lease/rent out their properties with

the exception of the suit property.

11. By order dated 06.07.2009 in I.A. No. 14661/2008 filed by

the plaintiffs, the order dated 18.04.2007 maintaining the status quo of

the title and possession of the suit property was modified and the parties

were allowed to deal with the properties mentioned in the schedule to the

documents dated 04.04.2006 in the manner of their choice, with the

exception of the suit property i.e. W 105 Greater Kailash, Part-II, New

Delhi-110048.

12. In the present application under consideration, the plaintiffs

have submitted that there are certain additional facts which are required

to be brought to the Court‟s notice, for which amendment of the plaint is

necessary. These additional facts are that the Mediators had obtained the

signatures of the plaintiffs as well as the defendants on undated letters

and documents, stating that at a later stage when the parties would want

to get the properties transferred in their names they would not need to

get documents/ no objection certificates signed from the other party. The

parties‟ signatures were also obtained on an MOU which stated that the

understanding was only with regard to the joint properties of the parties

and the defendants would pay Rs. 7.51 crores to the plaintiffs under the

said MOU.

13. Allegedly, after obtaining possession of the signed

documents, the mediators stated that they would require the parties‟

signature on two sets of non judicial stamp papers containing the said

MOU so that the same could be registered. The plaintiff no. 1 and his

son signed the said documents without realising or even doubting that

the said MOU was not the MOU that had been signed earlier but an

amended MOU, modified to the extent that self owned properties were

also included in the said MOU. Plaintiff no. 2 who went to sign the

document a few days later read the document and realised that it was not

the MOU agreed upon earlier.

14. The plaintiffs have stated that they managed to come into

possession of the actual MOU signed by the parties, and since the same

was not in their possession at the time of filing of the instant suit, the

factum of the existence and contents of the said MOU need to be brought

on record and therefore, amendment must be allowed. It has been

submitted that the MOU filed by the defendants has a different schedule

of properties than the actual MOU along with differences in fact which

are already mentioned and further, Schedule IV is missing from the

former.

15. Replying to this application, the defendants have submitted

that the present application has been filed with the motive of delaying

the hearing process. It is submitted that the amendment sought is

actually for withdrawing the admissions already made in the plaint and

to set up an entirely new case based on new pleas.

16. It is also submitted that the defendants filed applications

being I.A. No. 3235/2008 and I.A. No. 3234/2008 for rejection of the

plaint as well as the replication respectively and no reply to the same

was filed till 01.08.2008. The aim of the plaintiffs seems to be to delay

the proceedings knowing full well that various admissions have been

inadvertently made in the plaint. The plaintiffs are now desiring to

challenge the MOU that they signed and acted upon out of greed as the

value of the suit property has increased tremendously.

17. The defendants have denied any collusion with the mediators.

They have submitted that the plaintiffs executed the documents after the

oral family settlement was finalised on 24.03.2006 and even after the

said settlement was reduced into the MOU dated 04.04.2006, the

plaintiffs acknowledged and admitted the said family settlement in the

registered GPA dated 23.05.2006.

18. It is further pointed out that the plaintiffs on one hand are

stating that the mediators were acting in collusion with the defendants

etc. but on the other hand, the plaintiffs are claiming that they obtained

the „actual‟ MOU from the mediators. Further, the said MOU referred to

by the plaintiffs is actually a forged and fabricated document, of which

only a photocopy has been filed despite the defendants‟ specific

application for filing of the original document.

19. The defendants have submitted that the plaintiffs are trying to

introduce an entirely fresh cause of action with false facts and are

attempting to change the basis of the plaint. The MOU filed in this court

by the defendants has no mention of any amount or codicil, and the fact

is admitted between the parties. The plaintiffs now want to resile from

their statement by amending their pleadings and stating that there was

indeed an earlier MOU which contained certain amounts and codicils.

20. The defendants have also contended that even assuming for

the sake of argument that the plaintiffs did not have the alleged „actual‟

MOU at the time of filing of the suit, if before filing of the suit such

document had indeed been executed/signed, the plaintiffs would have at

least made a mention of the same in the plaint as obviously they would

have knowledge of the said MOU. Even now, the plaintiffs have not

filed the original copy of the alleged MOU or the originals or

photocopies of the alleged codicils. Further, the amended plaint

contradicts various statements made by the plaintiffs in the replication

and the plaintiffs cannot be allowed to take inconsistent pleas.

21. As per the present application the plaintiffs intend to amend

paragraphs 9, 10, 11, 17 as well as prayer clause of the plaint. In respect

of paragraph 9, the plaintiffs intend to delete the original paragraph in

the plaint and want to incorporate the additional paragraphs 9 and 9A of

the proposed amended plaint. Similar is the position as regards

paragraph 11 of the original plaint. In paragraph 10 of the proposed

amended plaint, the plaintiffs want to incorporate paragraph 10A to 10H

and also wish to amend paragraph 17 as well as the prayer clause of the

plaint.

22. It would be appropriate if each paragraph which the plaintiffs

intend to either delete from the plaint or in which they wish to

incorporate further averments is dealt with separately.

PARA 9

23. Paragraph 9 of the original plaint reads as under:

"9. That after a lot of deliberations and discussions a purported family settlement and other documents etc. were prepared by the said conciliators/mediators and the parties were directed to sign the same along with their children. The said conciliators/mediators also directed the parties to give certain documents such as Relinquishment Deeds, Affidavits etc. in respect of the division made by the Conciliators/Mediators in the said purported Family Settlement."

24. The plaintiffs seek to delete this original paragraph and want

to incorporate the new paragraphs 9 and 9A which read as under:

"9. That after a lot of deliberations and discussions it was agreed between the parties that all the nine joint properties as stated above should be equally divided amongst the plaintiff No.1 and defendant no.1. The defendant No.1 expressed his interest in certain properties which were of a much higher value than the balance properties that could be taken by the plaintiff No.1. To have an equitable division of properties the parties agreed to evaluate all the joint properties and then to add an appropriate amount of money to be paid by the party taking more valuable properties to the other. In accordance with the evaluation of the properties a price differential of Rs.15.02 crores was assessed between the two sets of properties. As a result of this it was agreed that the defendant no.1 would take the high value properties including the entire W-105, Greater Kailash Part-II, New Delhi (1000 sq. yards plot area) and as an equalizer would pay a sum of Rs.7.51 crores to the plaintiff no.1. Based on this agreement between the parties, a Memorandum of

Family Settlement was prepared and signed by both the parties. The said Memorandum of Family Settlement contained Schedule 1 which was the description of nine joint properties which were the subject mater of the family settlement. In addition to this Schedule II and Schedule III listed the three properties being taken by the plaintiff No.1 and six properties being taken by defendant No.1 respectively out of the aforesaid nine joint properties. The said Memorandum of Family Settlement also contained as Schedule IV a chart wherein the value of all the 9 joint properties were mentioned and the price difference and the amount payable by the defendant No.1 to the plaintiff No.1 was specified. Since the defendant No.1 was not clear and sure at that point of time about the manner and mode of paying Rs.7.51 crores to the plaintiff No.1, the aforesaid Memorandum of Family Settlement also referred to two codicils which were to form part of the said settlement. In fact, these two codicils were also prepared and signed between the plaintiff No.1 and the defendant No.1 at that point of time. Under One codicil a sum of Rs.1,50,00,000/- was agreed to be paid by the defendant No.1 to the plaintiff No.1 and under the other codicil the defendant No.1 agreed to pay a sum of Rs.6,01,00,000/- to the plaintiff No.1 as a precondition to the memorandum of family settlement. These two codicils formed part of the Memorandum of Family Settlement signed by both the parties.

9A. The mediators prepared the property transfer documents and certain other documents such as, undated letters addressed to the Assessor and Collector MCD etc. The plaintiffs signed these undated letters and documents. The plaintiffs also signed undated possession letters in respect of properties including bearing No.W-105 Greater Kailash-II (1000 sq. yards plot area), New Delhi. The plaintiffs also signed undated affidavits containing certain blanks, without dates and photographs. They also signed Special Power of Attorney, which were undated and without photographs. The plaintiffs faintly recollect affixing their signatures on certain other documents also including certain undated and un-numbered pages including blank papers and blank non-judicial stamp papers. All these documents were undated and without any photographs, ID and PAN details of the parties. The defendants also signed similar undated documents including General Power of Attorney, Special Power of Attorney, Affidavits Relinquishment deeds, Indemnity bonds, Conveyance deeds, possession letters etc. with blanks and without photographs for joint properties taken

by the plaintiffs as per the agreed Family Settlement. All these documents were signed in the office of the mediators and were kept by the mediators in their exclusive power and possession."

25. In view of the statement made by the plaintiffs in paragraph 9

of the original plaint as regards the purported family settlement as well

as many documents including the GPA dated 23.05.2006 executed by

plaintiff no.1 in favour of defendant no.1 wherein the former

categorically states and admits the existence of the oral family

agreement as well as the written MOU dated 04.04.2006, in view of the

specific admission made by the plaintiffs, I am of the opinion that the

said paragraph 9 of the original plaint cannot be deleted as prayed.

26. In Heeralal Vs. Kalyan Maland & Ors. 1998 AIR (SC) 618

the defendants in the written statement took the stand that of the ten

properties mentioned in Schedule A, only three were under their

exclusive possession, implying that the other seven properties mentioned

therein were joint properties. An amendment application was filed

wherein statement as regards five of the seven properties was sought to

be amended/retracted. The Court refused the amendment observing in

paragraph 12 that the defendants were attempting to go behind their

admission regarding five of the seven properties and the same was not

permissible.

In Modi Spining & Weaving Mills Co. Ltd. & Anr. Vs.

Ladha Ram & Co. (1977) 1 SCR 728, the defendants sought to amend

the plaintiff‟s job designation from „stockist-cum-distributor‟ to „agent-

cum-purchaser‟. The Court in this case held that the defendants could

not be allowed to take such inconsistent pleas and the amendment of

such admission, if allowed, would totally displace the case of the

plaintiff and cause it irretrievable prejudice.

In UOI vs. Pramod Gupta (Dead) by LRs & Ors. (2005) 12

SCC 1, the Supreme Court held in paragraph 73 that "Before an

amendment can be carried out in terms of Order 6 Rule 17 of the Code

of Civil Procedure the Court is required to apply its mind on several

factors including viz. Whether by reason of such amendment the

claimant intends to resile from express admission made by him. In such

an event the application for amendment may not be allowed".

27. In view of the settled law as referred above, I am of the

considered opinion that the case of the defendant would be seriously and

irretrievably prejudiced to a great extent if the said paragraph 9 of the

original plaint is permitted to be deleted as the withdrawal would amount

to displacing the case of the defendants. In fact, the plaintiffs want to

resile from an admission made on oath, if allowed. Hence, the prayer in

this regard is declined. As far as the additional averments made in

paragraphs 9 and 9A of the proposed amended plaint are concerned,

since as per settled law at this stage the Court cannot go into the merit of

the case, (Andhra Bank Vs. ABN Amro Bank N.V. & Ors. (2007) 6

SCC 167) therefore, the incorporation of the said paragraphs 9 and 9A in

the amended plaint are permitted.

PARA 11

28. Paragraph 11 of the original plaint reads as under:

"11. That though the defendant No.1 did pay part of the said amount as directed by the conciliators, he refused to pay the remaining amount to the plaintiff No.1, thus, failing to complete his part of the obligation under the said family settlement."

29. The plaintiffs seek to delete this original paragraph and want

to incorporate the new paragraphs 11 and 11A which read as under:

"11. That pursuant to the terms agreed between the parties and reduced in writing in the Actual Memorandum of Family Settlement, the defendants were liable to pay a sum of Rs.7.51 crores (seven crores fifty one lakh) to the plaintiffs. In order to secure the payment of the plaintiff, the defendants had also deposited a security of Rs.7.51 crores with the mediators, in terms of the said Actual Memorandum of Family Settlement. However, the defendants expressed their inability to pay the said amount and requested the plaintiffs to allow them to sell/dispose off the joint properties, which had gone to their share, so that they can arrange for the money i.e. Rs.7.51 crores to be paid to the plaintiffs. The defendant no.1 also assured the plaintiff No.1 that he will give the full sale consideration of the joint properties to the plaintiffs after selling them till he had paid the full equalizing amount of Rs.7.51 crores to the plaintiffs as per the agreed family settlement. To further reassure the plaintiff No.1, the defendant No.1 gave the following three post dated cheques in favour of plaintiff No.1 :

            Cheque No.            Dated       Amount Bank

            334660                25.05.06 25,00,000 ICICI Bank
            347677                31.05.06 17,00,000 ICICI Bank
            206050                31.05.06 13,50,000 CITI Bank
            Total                          55,50,000

After giving these cheques amounting to Rs.55,50,000/- (Fifty five lakh fifty thousand) to the plaintiff No.1 the defendant No.1 took back from the mediators security of equal value.

"11A. That after receiving the above three cheques amounting to Rs.55,50,000, the plaintiffs with a view to settle the disputes and have harmony in the family, agreed to the request of the defendant No.1 and allowed him to

dispose off the joint family properties coming to the share of the defendants. Accordingly, the defendants sold the following properties :

          Sr. Property details             Area sq. yds.    Value (as per
          no.                                               Schedule IV
                                                            Rs.(in crores)
          1.    Palam Vihar G-172,         1000 sq. yds.    2.25
                Gurgaon, Haryana
          2.    B-345A, Sushant Lok,       300 sq. yds.     1.20
                Phase-I, Gurgaon,
                Haryana
          3.    Flat 100 G, Lower          695 sq. ft.      0.36
                Ground Floor, Milap
                Niketan, 8A, B.S. Zafar
                Marg, New Delhi-2
                                           Total            3.81 crores

Though, the defendants were able to sell the aforesaid properties whose agreed value as per Schedule IV of Actual Memorandum of Family Settlement was Rs.3.81 crores, the defendants paid only a sum of Rs.55,50,000/- to the plaintiffs as per details of the cheques given above. Thus, the defendants paid a sum of Rs.55,50,000/- out of Rs.7.51 crores payable by defendants to the plaintiffs, leaving a balance of Rs.6,95,50,000/- (six crores ninty five lakh fifty thousand). Inspite of repeated requests and reminders, the defendants failed to pay the remaining part of the amount of Rs.6,95,50,000/- to the plaintiffs".

30. The same reasons that have been given while deciding

against the deletion of paragraph 9 of the original plaint may be read as

my finding for this paragraph also and it is held that the plaintiffs cannot

be allowed to delete the original paragraph 11 of the plaint. However,

the plaintiffs are permitted to incorporate new paragraphs 11 and 11A as

per the proposed amended plaint after paragraph 11 of the original

plaint.

PARA 10

31. Paragraph 10 of the original plaint reads as under:

"10. That since the share of the defendant No.1 was considered to be much heavier because of his selection of the joint properties, the said Conciliators also directed defendant No.1 to make certain payments to the plaintiffs, so as to make the share of joint properties equal."

32. The plaintiffs seek to incorporate additional paragraphs 10A

to 10H after paragraph 10 of the original plaint which is read as under:

"10A. That on the request of the mediators, the defendants agreed to keep in trust, a security of Rs.7.51 crores, (seven crores and fifty one lakhs), for fulfillment of their obligation to pay the equalizing amount of Rs.7.51 crores to the plaintiffs, as per the Actual Memorandum of family settlement and codicils.

10B. It was agreed that as and when payment will be made by the defendants to the plaintiffs, the security kept with the mediators for the corresponding amount will be returned back to the defendants by the mediators.

10C. Since the draft of Memorandum of family settlement signed earlier by the parties was lying in the computer of the mediators, the mediators said that they will print its two sets on non judicial stamp papers so that both the parties may sign them and get them registered after the completion of the family settlement and payment of Rs.7.51 crores by defendants to plaintiffs as per agreed family settlement.

10D. That subsequently, the mediators told the plaintiff No.1 that they had printed two sets of the memorandum of family settlement on Rs.100/- non judicial stamp papers. The mediators told the plaintiffs to sign this purported memorandum of family settlement printed by them on non judicial stamp papers. This was also not having photographs and no ID and PAN details had been written on them. The photographs, ID, PAN and other details were to be filled on these documents at the time of registration of these documents after the family settlement was completed and the equalizer amount of Rs.7.51 crores was paid by defendants to plaintiffs as per agreed family settlement. When the plaintiff No.1 wanted to read it before signing, the mediators told him that this memorandum of family settlement printed by them on non judicial stamp papers was the same as the memorandum of family settlement signed earlier by the parties. The

mediators also told the plaintiff No.1 that he should have faith in the mediators and sign these documents without having any doubts in this regard. In good faith and trust the plaintiff No.1 and his son signed this purported Memorandum of Family Settlement which as per the mediators was identical to the Memorandum of Family Settlement signed earlier by the parties.

10E. Later on when this purported memorandum of family settlement printed by the mediators on non judicial stamp papers was given to plaintiff No.2 for signing, she noticed that this purported Memorandum of family settlement was not same as the actual memorandum of family settlement signed earlier by the parties. In this purported memorandum of family settlement the schedule 1 was having 13 properties as joint properties instead of nine joint properties listed in Schedule 1 of the „Actual Memorandum of Family Settlement‟. Also Schedule-II was having seven joint properties instead of three joint properties in schedule-II of the Actual Memorandum of Family Settlement. The four additional properties added in these schedules of the purported memorandum of family settlement were not joint properties and were the individually owned properties of the plaintiffs and their family members. Even the names of Angela Khanna, Payal Arora and Cherry Khanna were added which were not there in the Actual Memorandum of Family Settlement. Also Schedule IV of the Actual Memorandum of Family Settlement, which referred to the valuation of properties was missing and there was no mention of codicils and payment of equalizer amount of Rs.7.51 crores payable by defendants to the plaintiffs. Besides these, there were also some other changes in certain other paragraphs and schedules. The plaintiffs were shocked to see the above discrepancies in the purported Memorandum of Family Settlement. The plaintiff No.2 categorically refused to sign this purported memorandum of family settlement unless the entire equalizer amount of Rs.7.51 crores was paid by the defendants to the plaintiff.

10F. The mediators immediately took away the purported Memorandum of Family Settlement from the hands of plaintiff No.2 on the pretext of looking into the problem. The mediators then told the plaintiffs that there seems to have been a mistake and they will get the necessary pages changed.

10G. Inspite of repeated requests and reminders by

plaintiffs to mediators, the mediators never brought the corrected Memorandum of Family Settlement for signatures of the plaintiff No.2 and therefore, the plaintiff No.2 never signed the purported Memorandum of Family Settlement and was not a party to the purported Memorandum of Family Settlement. Thus, the purported deed of family settlement, in any case, is not a complete document as the same has not been signed by all the parties and has no meaning in law.

10H. On the other hand all the members named in the Actual Memorandum of Family Settlement i.e., the plaintiffs and defendants and their sons have signed the Actual Memorandum of Family Settlement. The purported Memorandum of Family Settlement has not been signed by the parties added lateron i.e. Angela Khanna, Payal Arora and Cherry Khanna. Hence, if at all, any document which is conclusive in nature, it is the Actual Memorandum of Family Settlement signed by all the parties, which is legal and binding between the parties."

33. As far as the averments made in paragraphs 10A to 10H of

the proposed amended plaint are concerned, the incorporation of the said

additional paragraphs 10A to 10H after paragraph 10 of the original

plaint is allowed in view of settled law in the case of Lakha Ram

Sharma Vs. Balar Marketing Pvt. Ltd., 2006(2) SCALE 363 wherein it

was held that while considering whether an amendment ought to be

granted or not, the Court is not required to go into the merits of the

matter and decide whether or not the claim made therein is bona fide as

such a question will be decided at the time of trial.

PARA 17

34. Paragraph 17 of the original plaint reads as under:

"17. That because of the above reasons the plaintiff are left with no other alternate and efficacious remedy, but to approach this Court by way of present suit."

35. The plaintiffs seek an amendment in paragraph 17 of the

original plaint by incorporating certain additional averments. Amended

paragraph 17 reads as under:

"17. That because of the above reasons, the plaintiff are left with no other alternate and efficacious remedy, but to approach this Hon‟ble Court by way of present suit, as the defendants are illegally and fraudulently trying to taking over the property (half share in W-105, Greater Kailash-II, New Delhi) of the plaintiff by forcing their entry on the basis of a purported memorandum of family settlement dated 4.4.2006 printed on non judicial stamp papers, possession letters dated 4.4.2006, letters to MCD for mutation dated 4.7.2006, purported affidavits of the plaintiffs dated 29.5.2006, the power of attorney and special power of attorneys dated 29.5.2006. It is submitted that the purported memorandum of family settlement printed on non judicial stamp papers is an incomplete document, as the same is not signed by all the parties and has no meaning in law. Otherwise also, all the aforesaid documents, including the purported memorandum of family settlement have been obtained by the defendants from the plaintiffs under misrepresentation in a fraudulent manner by conniving with the mediators. Hence, the said documents are forged, fabricated, manipulated, interpolated and are not binding on the plaintiffs and are required to be declared illegal, null and void."

36. In the amendment sought by the plaintiffs in respect of

paragraph 17 of the original plaint, the plaintiffs in the amended

paragraph 17 have made the statement that all the aforesaid documents

including the purported memorandum of family settlement had been

obtained by the defendants from the plaintiffs by misrepresentation in a

fraudulent manner by conniving with the mediators. The averment of

misrepresentation and fraud has not been pleaded in the original plaint

and in case the said amendment in this paragraph as sought by the

plaintiffs is allowed, it would amount to setting up of a new case and

would also change the nature of the suit as the specific plea of fraud and

misrepresentation has not been taken by the plaintiffs in the original

plaint. Therefore, the plaintiffs cannot be permitted to change the nature

of the suit by amending paragraph 17 of the plaint. The amendment

sought by the plaintiffs with respect to this paragraph is declined.

PRAYER CLAUSE

37. Prayer clause (b) and (c) of the original plaint read as under:

"(b) pass a decree of declaration in favour of plaintiffs and against the defendants, thereby declaring any purported documents such as, Family Settlement, Relinquishment Deed/Deeds, Affidavits etc. in respect of property bearing No.W-105, Greater Kailash Part-II, New Delhi-110048, signed and executed by the plaintiffs as illegal, null and void;

(c) pass a decree of Mandatory Injunction in favour of plaintiffs and against the defendants, whereby directing the defendants to remove any construction from the Plot bearing no.W-105-A and W-105-C, Greater Kailash Part-II, New Delhi-110048, the same being illegal and done without authority;"

38. The plaintiffs seek to amend prayer clauses (b) and (c) of the

original plaint with the prayer clauses (b) and (c) of the proposed

amended plaint. Amended prayer clauses (b) and (c) read as under:

"(b) pass a decree of declaration in favour of plaintiffs and against the defendants, thereby, declaring any purported documents such as, purported memorandum of family settlement on non judicial stamp papers dated 4.4.2006, possession letters dated 4.4.2006, letters to MCD for mutation dated 4..7.2006, the power of attorneys and special power of attorneys dated 29.5.2006 and any other document, deed, affidavit etc. in respect of property bearing no. W-105 Greater Kailash Part II, New Delhi 110048, signed and executed by the plaintiffs being forged, fabricated, manipulated, interpolated, illegal, null and void, as the same were obtained fraudulently and under

misrepresentation of facts and is not binding on the plaintiffs;

(c) pass a decree of mandatory injunction in favour of the plaintiffs and against the defendants, whereby directing the defendants to revert back the possession of part "A" & "C" of the property bearing no. W-105, Greater Kailash-II, New Delhi 110048 to the plaintiffs, after removing any construction done on the said "A" & "C" portion illegally and without any authority."

39. It is settled law that the party seeking amendment cannot be

permitted to go beyond its admission by taking recourse to the said

amendment. The said point of law is writ large in Usha Balashaheb

Swami and Ors. Vs. Kiran Appaso Swami and Ors., 2007 AIR (SC)

1663 wherein paragraph 15, the Apex Court held as under :

"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."

In Shri Vasudev Vs. Smt. Rupkumari,

MANU/DE/7056/2007 it was contended by one of the parties that the

family settlement was actually a result of fraud. The said fact had not

been pleaded earlier. The amendment sought was stated to be withdrawal

of an admission and hence, was not permitted. A Division Bench of this

Court recently referred to the said judgment and took a strict stand on the

much-misused provision of Order VI Rule 17, observing the following :

"13. .... the provision to amend the pleadings cannot be permitted to be used as a lever to frustrate the due process of law nor can the provision for amendment be permitted to be utilized as an instrument for setting at naught the entire progress of the case which had already matured into the passing of a decree."

In Revajeetu Builders and Developers Vs. Narayanaswamy

and Sons and Ors., (2009)10SCC84 the Supreme Court has held as

under :

"29. In our considered view, Order VI Rule 17 is one of the important provisions of the CPC, but we have no hesitation in also observing that this is one of the most misused provision of the Code for dragging the proceedings indefinitely..... The applications for amendment lead to further delay in disposal of the cases.

31. In a recently published unique, unusual and extremely informative book "Justice, Courts and Delays", the author Arun Mohan, a Senior Advocate of the High Court of Delhi and of this Court, from his vast experience as a Civil Lawyer observed that 80% applications under Rule VI Order 17 are filed with the sole objective of delaying the proceedings, whereas 15% application are filed because of lackadaisical approach in the first instance, and 5% applications are those where there is actual need of amendment. His experience further revealed that out of these 100 applications, 95 applications are allowed and only 5 (even may be less) are rejected. According to him, a need for amendment of pleading should arise in a few cases, and if proper rules with regard to pleadings are put into place, it would be only in rare cases. .... The Court must scientifically evaluate the reasons, purpose and effect of the amendment and all these factors must be taken into consideration while awarding the costs."

40. In the original plaint there is already a comprehensive prayer

made by the plaintiffs seeking that the said documents i.e. family

settlement, relinquishment deeds, affidavit etc. in respect of property

bearing No. W-105, Greater Kailash, Part-II, New Delhi, signed and

executed by the plaintiffs be declared illegal, null and void. Therefore,

the plaintiffs cannot be allowed to make a prayer which will change the

nature of the suit.

41. The averments of fraud and misrepresentation were not made

by the plaintiffs in the original plaint. It appears that in the proposed

amended prayer clauses (b) and (c) the plaintiffs have for the first time

incorporated various facts with regard to which relief is not allowed to

be incorporated in the prayer clause and they cannot be allowed to

extend the prayers of the suit on the basis of averments which are totally

beyond earlier pleadings in the plaint. The present application is partly

allowed with the above-mentioned finding.

CS (OS) No. 2203/2006

Let the amended plaint in the terms mentioned above be filed

within three weeks from today with an advance copy to the learned

counsel for the defendants who may file the written statement to the