Mohan Madan vs Smt. Sheel Gulati
2010 Latest Caselaw 2486 Del

*             THE HIGH COURT OF DELHI AT NEW DELHI

+                            CS(OS) No.357/2006

                                           Date of Decision : 10.05.2010

Mohan Madan                                            ......Plaintiff
                                    Through:     Mr. Vinay Kumar Garg,
                                                 Advocate.

                                        Versus

Smt. Sheel Gulati                                    ...... Defendant
                                    Through:     Mr.    Vikas  Nagpal,
                                                 Advocate.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                            YES
2.     To be referred to the Reporter or not ?                 NO
3.     Whether the judgment should be reported
       in the Digest ?                                         NO

V.K. SHALI, J. (Oral)

IA No.2182/2010

1. This order shall dispose of an application under Order VI

Rule 17 filed by the plaintiff. Briefly stated, the facts of the

case are that the plaintiff has filed a suit for declaration,

specific performance and injunction against the defendant.

The case which has been set up by the plaintiff against the

defendant is that the latter had agreed to sell his built-up

property bearing No.BN-53, Shalimar Bagh (East), Delhi

measuring 250 sq.yards to the plaintiff on 5.10.2005 for a

total sale consideration of Rs.2.39 crore. It is alleged that

the aforesaid transaction was entered with the help of a

property dealer by the name of one, Raju of M/s Pardesi

Properties, Sector-11, Rohini, Delhi. On 5th October, 2005,

the plaintiff is purported to have paid a sum of Rs.25.00

lakh as an earnest money to the defendant and the latter is

purported to have acknowledged the receipt of the aforesaid

amount and the other terms and conditions of the

agreement. It is stated that the important terms and

conditions which were mentioned in the receipt were as

under :

i) The last date for execution of documents is 20th April, 2006.

ii) The house was to be got converted into freehold and all the dues had to be cleared by the defendant upto 20th April, 2006.

iii) A further part payment of Rs.50.00 lakh had to be made on 20th January, 2006 and

iv) further part payment of Rs.25.00 lakh had to be made by the plaintiff to the defendant on 20th February, 2006.

2. It is alleged that on 20th January, 2006 when the plaintiff

along with the property dealer approached the defendant at

his residence in order to make the balance payment of

Rs.50.00 lakh in terms of the agreement dated 5th October,

2005, the defendant deliberately refused to meet the

plaintiff. This resulted in issuance of a notice dated 20th

January, 2006 by the plaintiff to the defendant calling

upon her to perform her part of the contract. Since this

was not done, the plaintiff was constrained to file the

present suit.

3. The defendant has filed her written statement and taken

various pleas apart from the plea that the bayana

receipt/agreement were executed on the same day, one for

the plaintiff and the other for the defendant. It is alleged

that the plaintiff has colluded with one, Raju and got the

documents forged, fabricated and played fraud upon the

defendant. It is alleged that the cheque which was actually

issued to the defendant was drawn on Nanital Bank Ltd.

from the account of one, Dharam Pal Malik who was not a

party to the agreement. On the basis of these facts, the

suit has been contested by the defendant.

4. This Court after completion of pleadings and

admission/denials framed issues on 12th August, 2008 and

thereafter directed the plaintiff to file affidavit by way of

evidence in support of his case. The plaintiff in support of

his case has examined himself as PW-1 after filing of the

affidavit. However, the cross examination of the PW-1 i.e.

the plaintiff could not be completed and the same was

deferred on 26th of February, 2010. The further cross

examination of the witnesses was yet to be completed. It is

at this stage that the defendant has filed an application

under Order VI Rule 17 proviso bearing IA No.2182/2010

seeking amendment of the written statement.

5. I have heard the learned counsel for the defendant and

perused the record.

6. The main contention which has been advanced by the

learned counsel for the defendant seeking amendment of

the written statement is two-fold. First, it is alleged by him

that after filing of the written statement, the defendant

while surfing on the net has learnt that the plaintiff has

been involved in number of shady property, deals as a

consequence of which number of FIRs have been registered

against him, details of which are mentioned in the

application in para 4. The defendant is also alleging in the

amendment application that a fraud has been played upon

her as a consequence of which she wants to give the

specific details of the fraud. The learned counsel for the

defendant has relied upon the case title Bishnudeo Narain

and Anr. Vs. Seogeni Rai and Jagernath AIR 1951 SC

280.

7. So far as the judgment which has been relied upon by the

defendant is concerned, it has no application to the facts of

the present case. Order VI Rule 4 CPC reads as under :

"4. Particulars to be given where necessary. - In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."

8. A perusal of the aforesaid rule will clearly show that in

cases where a party is alleging that fraud has been played,

the necessary details by way of particulars and the manner

in which the fraud was committed have to be necessarily

given. This is a fact which was specially within the

knowledge of the defendant even at the time when the

written statement was filed earlier.

9. The Proviso to Order VI Rule 17 specifically says that once

the trial has started, the Court will not permit any

amendment of the pleadings unless and until the party

concerned satisfies the Court that despite having observed

the due diligence, the fact which is sought to be

incorporated was not within its knowledge. In the instant

case, admittedly the defendant has neither alleged nor

prima facie established that the facts which she wants to

place on record by way of fraud having been played on her

was not within her knowledge despite due diligence. On

the contrary, there is an averment made by the defendant

herself that fraud was played on her by the plaintiff in

collusion with one Raju, property dealer which clearly

shows that all the details pertaining to the fraud were

within her knowledge and therefore at this late stage, she

cannot be permitted to amend her written statement.

10. The second part of the amendment application pertains to

where the defendant is wanting to incorporate in the

written statement the factum with regard to the registration

of the various cases which show that the plaintiff allegedly

has been involved in number of dubious property

transactions on account of which various FIRs have been

registered in different police stations against him. This is a

fact which obviously has been learnt by the defendant after

filing of the written statement. It has been alleged by the

defendant that these facts came to her knowledge when she

was surfing on the net.

11. Order VI Rule 17 Proviso clearly lays down that once the

trial has begun, then as a matter of rule the Courts will not

permit the amendment of the pleadings unless and until

the case falls in proviso where due diligence is shown and

despite the said due diligence the fact in question was not

within the knowledge of the defendant. Although the

Courts have been liberal in permitting amendment but after

the amendment in Order VI Rule 17 CPC in 2002, the

amendment to the pleadings has been somewhat stringent.

The amendment apart from the fact that it must fall within

the proviso of Order VI Rule 17 must also be germane to

the real fact in issue involved in a particular case. The

issue involved in the instant case is as to whether the

plaintiff is entitled to a declaration of decree of specific

performance in respect of a property owned by the

defendant when the latter is purported to have executed an

agreement to sell by way of receipt for a specified

consideration. If that be so, the question of character of

the plaintiff is not an issue in the instant case. Section 52

of the Evidence Act, 1872 specifically lays down that no

evidence as to the character can be produced by a party

unless and until the character of a person is itself in issue

so as to determine the quantum of damage, meaning

thereby that no evidence with regard to the character can

be adduced in a civil case unless and until it is relevant for

the purpose of determining the damages on account of

defamation case. Therefore, this portion of the amendment

which is sought by the defendant is not germane and

relevant to the 'fact in issue' in the instant case.

12. In addition to this, admittedly no amendment can be

permitted on this score when the trial has already started.

As has been noticed hereinabove, the plaintiff has already

tendered his affidavit by way of evidence and he has been

subjected to extensive cross examination by the defendant

which could not be completed probably for want of time.

The said cross examination was deferred on 26th February,

2010. It is only after that particular date that the present

application has been filed by the defendant with a view to

seek incorporation of the aforesaid facts.

13. I am of the view that the defendant has deliberately chosen

to file this application only with a view to delay disposal of

the case. The defendant is still at liberty to cross examine

the plaintiff as regards his character so far as it is going to

demolish his testimony, but no amendment of the written

statement can be permitted at this stage so as to

incorporate averments pertaining to the character of the

plaintiff, especially when this is not a suit for damages.

14. For the reasons mentioned above, the amendment

application is totally frivolous and dilatory in nature and

accordingly the same is dismissed with cost of Rs.10,000/-.

V.K. SHALI, J.

May 10, 2010 skw