Delhi High Court
Ram Kumar Gupta vs Begum Shahzadi & Ors. on 12 March, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 11th February, 2010
Date of Order: 12th March, 2010
CM(M) No. 1623/2004
% 12.03.2010
Ram Kumar Gupta ... Petitioner
Through: Mr. Rakesh Makhija, Advocate &
Mr. Vishal Garg, Advocate
Versus
Begum Shahzadi & Ors. ... Respondents
Through: Mr. L.D.Adlakha, Advocate &
Ms. Ripin Adlakha, Advocate
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
By this petition the petitioner has assailed an order dated 14th
October, 1999 whereby an application under Order 6 Rule 17 CPC of the petitioner,
who is plaintiff before the trial Court, was dismissed by the trial Court holding that the
plaintiff by way of amendment wanted to incorporate totally new facts, inconsistent
with the earlier pleas and in fact wanted to change the description of the suit property
altogether after about 8 years of filing of the suit.
2. Plaintiff had filed a suit for permanent injunction and mandatory
injunction claiming himself to be owner of property no. 2538 Tiraha Bairam Khan,
Darya Ganj, Delhi. In the plaint he stated that shop no. 2538 had two doors. He
alleged that the defendant, a tenant in the shop, without his permission and consent,
was making alterations and additions and therefore he sought a mandatory injunction
directing defendants to demolish the construction already made on the first floor and
to fill up already dug basement area in the shop. Along with plaint, plaintiff filed a site
plan showing a composite shop with two doors and a wall with a door in-between
connecting the two shops and described it as shop number 2538. In the WS,
defendants stated that this was not one shop but these were two shops; one was
having no. 2538 and other was having number as 2538A. The relationship of
landlord/tenant was not denied. It was stated that out of two shops one shop no.
2538 was repossessed by the plaintiff taking advantage of the fact that defendant
no.1 was a widow and there was no senior member to advice her. The plaintiff in the
replication insisted that it was one shop with two doors with municipal No. 2538
3. During the trial when the defendants persisted with theory of two
shops plaintiff then filed this amendment application under Order 6 Rule 17 CPC
whereby he wanted to amend the plaint by saying that though the tenanted shop
bore municipal number 2538 Tiraha Bairam Khan, Darya Ganj, Delhi but private
numbers to the two parts of shop were given as 2538 and 2538A. Portion in the site
plan shown as 'A' bore private No. 2538 and portion shown as 'B' bore private No. as
2538A. It was stated that since the premises remained the same and this objection
had been taken by the defendants themselves the amendment would not prejudice
the defendants. The defendants opposed the application on the ground that the
plaintiff/petitioner was trying to change the suit property he did not amend the plaint
despite objection taken by the defendants in the very beginning.
4. The trial Court while dealing with application referred to a Local
Commissioner's report who was appointed to visit the shop and to report about the
recent construction, if any, being done and to report to the court the location,
possession etc. of the shop. The Local Commissioner after recording how he was
prevented from inspecting the shop by the defendants (respondents herein) and how
a large crowd was gathered by the respondents on the spot, how he had to take the
police help to inspect the shop, reported that inside the shop building material (sand,
cement, badarpur, wooden logs) were lying on the first floor of the shop. Tools for
construction were also lying and flooring material in the form of white cement and
marble chips was also lying but the flooring had not yet been done. He found that
though there was no basement in existence however, the construction of the wall
was very recent and in order to camouflage the same, a coat of whitewash was given
over the walls. He did not find a door/window or opening in-between the two shops
marked as 'A' & 'B' in the site plan of the plaintiff. From this report the trial Court
concluded that there were two separate shops and the contention of the plaintiff that
this was one shop having two doors stood negated.
5. A perusal of report shows that trial Court ignored substantial part of
the report. It ignored that the construction of wall was a recent phenomenon and the
very grievance of the petitioner was that the tenant was undertaking illegal
construction without his consent. The trial Court also ignored the fact that the site
plan filed by the plaintiff matched at the site and two portions of the shop as shown
as 'A' & 'B' existed on site and the Local Commissioner specifically stated that both
portions were having same municipal number.
6. It is apparent that either the learned trial Court did not read Local
Commissioner's report fully or used it selectively without applying his mind. The
change being sought by the plaintiff/petitioner was not of the property but of the
property number. The site plan remained the same. The property number also was
same in the amended plaint as 2538 only plaintiff made it clear that private numbers
had been given to the two portions of the shop as 2538 and 2538A. The trial Court
also did not realize that the plaintiff had not asked for filing any new site plan showing
any new premises.
7. It is settled law that an amendment to clarify or to rectify the numbers
of the existing property is merely an amendment of technical nature which really does
not affect the suit premises and such an amendment does not prejudice the rights of
the parties. No doubt there was delay in filing application but the amendment sought
by the plaintiff was not in respect of any material aspect requiring any additional
evidence. No additional facts were sought to be incorporated. No additional issues
were sought to be raised and only correction of the number of the shop was sought
by way of amendment. The trial Court therefore wrongly exercised his jurisdiction in
rejecting the application.
8. The petition is allowed. The order dated 14th October, 1999 of the trial
Court is set aside. Application of the petitioner under Order 6 Rule 17 stands
allowed.
March 12, 2010 SHIV NARAYAN DHINGRA, J.
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