Mr. Jeevan Kumar Mehan vs Mrs. Praveen Verma & Ors.
2010 Latest Caselaw 4971 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved on: 26.10.2010
                      Judgment Pronounced on: 28.10.2010

+           CS(OS) 2165/2008

MR. JEEVAN KUMAR MEHAN                            ..... Plaintiffs

                   - versus -
MRS. PRAVEEN VERMA & ORS.                      .... Defendants

Advocates who appeared in this case:
For the Plaintiff       : Mr Kartike Anand,
For the Defendants      : Mr A.K. Singh and Mr T. Akhtar,
                          Advs. for D-1 & 2.
                          Mr Nageshwar Pandey, Mr Anuj Kr.
                          Singh and Mr A.K. Pandey, Advs for
                          D-3. Ms Anju Lal and Ms Shalu Lal,
                          Advs. for D-4 to 7.

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 in Digest? YES

V.K. JAIN, J

IA No. 14978/2008 (u/O 6 R 17 CPC)

1. This is an application for amendment of the plaint.

The plaintiff wants to amend the plaint so as to incorporate

Paras 18.1 and 18.3 and also wants to amend paras 19. 20,

22, 23 and 25 of the plaint while deleting para No. 21. The

plaintiff also wants to amend the prayer clause so as to

claim certain additional reliefs.

2. The application has been opposed by defendants

No. 1 and 2. The application, however, is not opposed by

defendants No. 3 to 7.

3. It has been alleged in the original plaint that the

plaintiff is the co-owner of property No. C-85, NDSE-II, New

Delhi having 1/4th share in it, which he purchased vide

sale deed registered on 18th August 1986. The defendants

1 to 3 are the sisters of the plaintiff, whereas defendants No.

4 to 7 are the wife and children of his deceased brother. It

has been further alleged in the plaint that the aforesaid

property was purchased by the plaintiff, his father late Sh.

Ram Dev Mehan and his brother late Sh. Rakesh Kumar

Mehan, by pooling their resources. Earlier, this property

was owned by Surinderjit Singh HUF and Shri Ravi Singh.

Late Ram Dev Mehan, father of the plaintiff, purchased the

half undivided share in that property from Surinderjit Singh

HUF, whereas the plaintiff purchased 1/4th undivided

share in the property from Shri Ravi Singh. Late Rakesh

Kumar Mehan also purchased 1/4th undivided share in the

suit property from Shri Ravi Singh. Thus the plaintiff, his

father and brother had proportionate shares of 1/4th, 1/2

and 1/4th, respectively in that property. It is further

alleged that at the time of purchase of suit property, it had a

single story construction. Later on, first floor and second

floor were also constructed, besides making certain

additions and alterations. After the aforesaid constructions,

the plaintiff, his father and his brother entered into an

amicable arrangement amongst themselves and by virtue of

that arrangement they entered into separate and exclusive

possession of different portions of the property, while

leaving some parts common for the usage of all. Late Ram

Dev Mehan took possession of the basement and the ground

floor, the plaintiff took possession of the first floor whereas

the brother late Rakesh Kumar Mehan took possession of

the second floor. It has been further alleged that the co-

owners took up exclusive possession and enjoyment of

different portions, without severance of interest that would

amount a partition of the suit property. It has also been

alleged in para 9 of the plaint that the suit property also has

a driveway on the ground floor which forms part of the

common passages and areas of the suit property and are in

common possession and enjoyment of all the co-owners.

The portion marked in Black in the site plan Annexure „A‟ to

the plaint indicates common areas and passages. The

portion shown in Red indicates the portion occupied by late

Ram Dev Mehan. The portion marked in Green shows the

portion occupied by the plaintiff, whereas the portion

marked in Blue was in possession of late Rakesh Kumar

Mehan. It has also been alleged that under the Will

executed by late Ram Dev Mehan dated 3rd June 2001, his

share in the undivided suit property devolved equally on

defendants No. 1 to 3, who are his daughters. The

condition imposed by the testator stipulated that in case

any of his daughters wished to sell the share inherited by

her, the first preference for such sale was required to be

given to his other daughters and in case other daughters

were not willing to purchase that share, the second

preference was to be given to the plaintiff to purchase that

share.

4. It is also alleged in the original plaint that

defendants No. 1 to 3 were intending to sell their portion in

the suit property without first offering the same to the

plaintiff. The plaintiff sought a permanent injunction,

restraining them from alienating their share in the suit

property, marked in red in the site plan and also the

common driveway marked in brown and the terrace rights,

in contravention of the terms of the Will of late Ram Dev

Mehan.

5. Thus, the stand taken by the plaintiff in the

original plaint is that the suit property was jointly owned by

him, his late father Sh. Ram Dev Mehan and his late

brother Sh. Rakesh Kumar Mehan and that though under

the arrangement between them the basement and ground

floor was in occupation of his late father Sh. Ram Dev

Mehan, the first floor was in his occupation and the second

floor was in occupation of his late brother Sh. Rakesh

Kumar Mehan, there was no partition as such amongst

them and there was no severance of their status as the co-

owners of the suit property. Of course, there is no averment

in the original plaint that the terrace of the second floor was

in the joint use and possession of the parties or was their

common property.

6. Alongwith the suit, the plaintiff also filed IA No.

12488/08 under Order II Rule 2 of CPC, seeking liberty to

seek/include other legal remedies either by way of

amendment or fresh legal action.

7. Now, the plaintiff, by way of proposed amendment

of the plaint, wants to plead that since he, defendants 1 to

3 and defendants 4 to 7 have an undivided share in the suit

property, defendants 1 to 3 cannot sell their share in the

suit property to any third party. He also wants to claim that

in any event defendants 1 to 3 can sell, only what does

belong to them. He also wants to plead that late Shri Ram

Dev Mehan had only half undivided share in the suit

property and in the undivided land underneath the

construction, alongwith half proportionate share in the

undivided roof-rights. Further, he wants to plead that in

seeking to sell the basement and ground floor, including

garage and roof rights, the defendants 1 to 3 intend to

infringe upon the rights of the plaintiff and defendants 4 to

7 and in any case, no such sale can be made, without

partition of the property by metes and bounds. The plaintiff

wants to claim additional relief comprising (i) a decree for

declaration that he has one-fourth undivided share in the

land underneath the construction on the suit property and

proportionate one fourth share in the roof rights; and (ii) a

decree for partition of the suit property by metes and

bounds.

8. 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.

9. It was contended by the learned counsel for the

defendants 1 and 2 that whereas the case setup by the

plaintiff in the original plaint is that the defendants 1 to 3

cannot sell their portion of the suit property, without first

offering the same to him, the case now sought to be setup

by way of proposed amendments is that since the property

had not been partitioned, they had no right at all to sell

their portion in the suit property to any one, till the property

was divided by metes and bounds. It was also pointed out

that late Shri Ram Dev Mehan had bequeathed his entire

share in the suit property, including the roof rights on the

second floor to his daughters, it was contended that the Will

was admitted in the plaint. By way of proposed amendment

the plaintiff wants to take away an admission that the

portion bequeathed by his late father Ram Dev Mehan to his

daughters belonged exclusively to the Testator.

10. In my view, no admission is sought to be

withdrawn by the plaintiff by way of the proposed

amendment. Nowhere has the plaintiff admitted in the

plaint that there was a partition of the suit property

between him, his late father and his late brother Rakesh

Kumar Mehan. What the plaintiff has claimed in para 7 of

the plaint is that there was an amicable arrangement for

separate and exclusive possession of different portions of

the construction raised on the suit property while leaving

some parts common for the usage of all. It has been

specifically pleaded in para 8 of the plaint that the co-

owners took exclusive possession and enjoyment of different

portions without severance of interest that would amount to

a partition of the suit property. Thus, the case setup in the

original plaint is that there was an arrangement for the

mutual and exclusive possession of different portions of the

suit property, though there was no partition as such and

there was no severance of the interest. If there was no

severance of interest, that would mean that there was no

partition of the property and the parties continued to be the

co-owners of the entire property.

11. As regards rights in the roof of the second floor,

though the father had bequeathed the same to his

daughters to the exclusion of his sons, he would have no

right to do so in case there was no partition or a family

arrangement, whereby the status of the father and sons as

co-owners came to an end and they became absolute

owners of the respective portions occupied by them in the

suit property. The fact remains that there is no admission in

the plaint that the rights in the roof of the second floor

vested exclusively in late Shri Ram Dev Mehan though there

is an admission that he had bequeathed these rights to his

daughters, to the exclusion of his sons. If there was no

partition amongst late Shri Ram Dev Mehan and his sons,

he would be entitled to bequeath only his share in the rights

in the roof of the second floor and not the whole of such

rights. In any case, it is settled proposition of law that the

truthfulness or the legality of averments proposed to be

made in the pleadings is not to be examined by the Court

while deciding an application for amendment of pleadings.

12. It was next contended by the learned counsel for

the defendants 1 and 2 that the relief initially claimed by

the plaintiff was only for permanent injunction and by

claiming additional reliefs of declaration and partition he is

changing the very nature of the suit. I, however, find no

merit in the contention. Mere claiming additional reliefs on

the same set of facts does not amount to changing the

nature of the suit or the cause of action on which the suit is

based. The plaintiff is always entitled to claim additional

reliefs by way of amendment of pleadings when the factual

foundation for claiming those additional reliefs already

exists in the original pleadings.

13. Drawing my attention to para 22 of the plaint,

where it is alleged that the cause of action in the suit arose

on 07th October, 2008 when defendant No.2 revealed the

intention of defendants 1 to 3 to sell their share in the suit

property in contravention of the Will of their father, it was

contended by the learned counsel for the defendants 1 and

2 that the proposed amendment would also result in

altering the cause of action for filing the suit. Again, I find

no merit in the contention. The expression "cause of action"

is generally understood to mean a situation or state of facts

that entitles a party to institute an action and seek remedy

in a court or a tribunal. This is a combination of operative

facts giving rise to one or more basis of suing before a Legal

Forum; a factual situation that entitles one person to obtain

relief, through court, from another person or entity.

In Halsbury Laws of England (4th Edn.) it has been

stated as follows:

"„Cause of action‟ has been defined as meaning simply a factual situation, the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. 'Cause of action' has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action".

In ONGC vs. Utpal Kumar Basu, 1994 (4) SCC

711, Supreme Court held that:

"It is well settled that the expression „cause of action‟ means that bundle of facts which the petitioners must prove, if traversed, to entitled him to a judgment in his favour by the Court....Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts."

In Rajasthan high Court Advocates' Assn vs.

Union of India 2001 (2) SCC 294, Supreme Court, inter

alia, observed as under:

"The expression "cause of action" has acquired a judicially-settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in "cause of action".

Therefore, it cannot be said that mere attempt of

the defendants to sell the portion bequeathed to them by

late Ram Dev Mehan amounted to cause of action to file the

present suit. In order to maintain his action, the plaintiff is

required to prove host of facts, including that he is a co-

owners in the suit property, the defendants were trying to

transfer possession of the portion occupied by them and

that they have no right in law to transfer the portion

occupied by them. The cause of action for claiming reliefs of

declaration and partition is, therefore, not different from the

cause of action for claiming the relief of the perpetual

injunction alone. It is settled proposition of law that the

cause of action has to be culled out from a conjoint reading

of all the paragraphs in the plaint and averments made in

one particular paragraph cannot be read in isolation and

divorced from the facts alleged in other parts of the plaint.

Therefore, there is no substitution of the cause of action by

carrying out the proposed amendment.

14. Suraj Prakash Bhasin vs Smt. Raj Rani Bhasin

And Ors. 1981 (3) SCC 652, the plaintiff filed a suit for

partition of his share in the super structure of a theatre.

After two years, he sought amendment of the plaint by

claiming additional reliefs, on the footing that there was a

partnership of theatre business in which he had a share. He

further demanded rendition of accounts in respect of

cinema business. The amendment was resisted on the

ground that it was a dubious device of developing a case of

partnership and seeking relief thereon, while leaving such a

cause dormant in the original plaint. Rejecting the

contention of the defendant, the Supreme Court, inter alia,

held as under:

"The plea based on partnership is neither a virgin case nor a violent departure from the original. After all, the appellant- defendant has a full opportunity to meet the case presented by the amendment. Maybe, a variety of circumstances some of which were mentioned before us might, if successfully established, disprove the veracity of the plaintiff's case, They are matters bearing on the merits of the case, not on the tea ability of the amendment.

15. In Pankaja and Anr. vs. Yellappa (Dead) by Lrs.

And Ors. (2004) 6 SCC 415, the plaintiff filed a suit seeking

possession of the suit property. After six years, he filed an

application to amend the plaint so as to claim relief of

declaration of his ownership in that property. One of the

grounds on which amendment was refused was that grant

of permission to amend the plaint would amount to

introduction of a relief different from that sought in the

plaint. Allowing the appeal, Supreme Court held that the

amendment sought for by the plaintiff did not introduce a

different relief so as to bar the grant of prayer for

amendment, since necessary factual had already been laid

down in the plaint, in regard to the title, which though had

been denied by the defendant. The Court felt that the title

would be an issue to be decided in a trial and it would be

incorrect to conclude that by the proposed amendment the

plaintiff was introducing a different relief. In the present

case also, the factual foundation for the additional reliefs

claimed by way of proposed amendments already exist in

the plaint since the plaintiff has already claimed that there

was no partition of the suit property and the arrangement

between him, his father and his brother was only with

respect to exclusive possession of various portions of the

suit property.

In G.Nagamma and Anr. vs. Siromanamma and

Anr: 1996 (2) SCC 25, the plaintiff filed a suit for specific

performance of agreement of re-conveyance. They later on

applied for amendment so as to plead that the transactions

of execution of the sale deed and obtaining a document for

re-conveyance were single transaction, viz., mortgage by

conditional sale. They also wanted alternative relief to

redeem the mortgage. The amendment was refused by the

High Court. Allowing the appeal filed by the plaintiff,

Supreme Court held that the plaintiff was entitled to plead

even inconsistent pleas, though in the case before it, the

plaintiffs were seeking only alternative reliefs. It was held

that the application for amendment of the plaint did not

change the cause of action and did not materially affect the

relief claimed in the plaint. In the case before this Court,

the plaintiff stands on a much stronger footing since she is

not seeking to setup any inconsistent plea and is not

seeking to claim even alternative reliefs.

16. One of the objectives behind allowing amendment

of pleadings is to avoid multicity of proceedings. It cannot be

disputed that the plaintiff has a right to file a separate suit,

claiming partition and declaration. It would only result in

multiplicity of proceedings if the proposed amendments are

refused.

17. This is not the case of the contesting defendants

that the additional reliefs claimed by the petitioners are

barred by the limitation. Thus, they do not take away any

vested interest of the contesting defendants.

18. The suit is at the very initial stage. No prejudice is

likely to be caused to the defendants if the proposed

amendments are allowed. They will have an opportunity to

file written statement to the amended plaint and to

controvert the factual and legal plea sought to be taken by

way of proposed amendment. The plaintiff is not seeking to

substitute the cause of action or the subject matter of the

suit.

19. For the reasons given in the preceding paragraphs,

the proposed amendments are allowed, subject to payment

of Rs 15,000/- as costs. The IA stands disposed of.

CS(OS) 1108/2006

Amendment plaint has already been filed. Written

statement to the amended plaint be filed within two weeks.

Replication, if any, can be filed within two weeks thereafter.

Additional documents, if any, be filed within four weeks

from today. The parties to appear before the Joint Registrar

for admission/denial of documents on 30th November, 2010.

IA No. 12488/2010 (under Order 2 Rule 2 of CPC)

Since the amendments sought by the plaintiff have been

allowed, this application has become infructuous and is

dismissed as such.

IA No. 12487/2010 (under Order 39 Rule 1 & 2 of CPC)

To come up for disposal of the application on 06th

December, 2010.

(V.K. JAIN) JUDGE

OCTOBER 28, 2010 AG/BG