Sh. Rajesh Kumar Gambhir & Ors. vs Sh. Trilik Kumar Gambhir
2010 Latest Caselaw 4230 Del

*      HIGH COURT OF DELHI : NEW DELHI

       CM (M) No. 1135/2010 & CM No. 15952/2010 (stay)

%      Judgment reserved on: 6th September, 2010

       Judgment delivered on: 13th September, 2010

       1. Sh. Rajesh Kumar Gambhir,
          S/o Sh. Trilok Kumar Gambhir

       2. Smt. Seema Gambhir,
          W/o Sh. Rajesh Kumar Gambhir

       3. Soniyal Gambhir (MINOR),
          D/o Sh. Rajesh Kumar Gambhir

       4. Pappy Gambhir (MINOR),
          S/o Sh. Rajesh Kumar Gambhir

          All Rs/O BM-23, Ist Floor,
          Shalimar Bagh (West),
          Delhi.                              ........Petitioners

                            Through:   Mr.Sunil Malhotra, Advocate.

                       Versus

          Sh. Trilok Kumar Gambhir
          S/o late Sh. Iswar Dass Gambhir,
          R/o BM-23, Shalimar Bagh (West),
          Delhi.                                   ....Respondent

                            Through:   None

Coram:

HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                 Yes




CM (M) No. 1135-2010                                 Page 1 of 9
 2. To be referred to Reporter or not?                Yes

3. Whether the judgment should be reported

     in the Digest?                                  Yes

V.B.Gupta, J.

Present petition has been filed under Article 227 of Constitution

of India by petitioners challenging order dated 18.8.2010, passed by

Additional District Judge, Delhi.

2. Vide impugned order, application of petitioners under Order 6

Rule 17 Code of Civil Procedure (for short as „Code‟) seeking

amendment in the written statement was dismissed.

3. Brief facts are that in year 2000, respondent (plaintiff in trial

court) filed a suit for possession and mesne profits against petitioners

(defendants in trial court). Petitioners filed their written statement on

28.8.2002 and issues were framed on 3.12.2004. In 2010, petitioners

filed an application for amendment of their written statement. It would

be pertinent to point out that trial commenced in 2004 when

respondent was directed to lead its evidence. Petitioners have

nowhere mentioned in the list of dates, as to what happened from

2004, till the date of filing of application for amendment.

4. By way of application under Order 6 Rule 17 of the Code,

petitioners wants to incorporate contents of one declaration dated

22.7.1982 given by grand-father of petitioner No.1 - Sh. Ishwar Dass

Gambhir and father of respondent to the effect that suit property was

purchased from the funds of M/s Ishwar Dass & Co., who had given

money to his son i.e. respondent to raise construction over it, on the

understanding that petitioner No.1 shall be given first floor portion of

the property after his marriage and which shall remain in his

possession.

5. Petitioners by virtue of proposed amendment also sought to

incorporate contents of an alleged affidavit dated 31.8.2000 of Smt.

Lal Devi Gambhir, w/o Sh. Ishwar Dass Gambhir, the grand-mother

of petitioner No.1, where it was mentioned that an application was

moved by Smt. Lal Devi Gambhir, before the Court of Sh. S.P.Garg in

Civil Suit bearing No. 333/1989, stating that Sh. Ishwar Dass

Gambhir had not executed any Will in favour of anyone in respect of

suit property, rather the same was purchased from the funds of M/s

Ishwar Dass Gambhir & Company.

6. Amendments sought for have been opposed by the respondent

stating that the alleged declaration and affidavit, the contents of which

are being sought to be incorporated in the written statement, were well

within the knowledge of the petitioners, prior to the commencement

of the trial. However, the same were deliberately concealed from the

Court. Hence, application for amendment is malafide and a dilatory

tactic on the part of the petitioners.

7. It is contended by learned counsel for petitioners that trial court

wrongly and illegally dismissed petitioners application. Petitioners

were not in power and possession of the said documents, at the time of

filing of the written statement earlier. The necessity to amend the

written statement has arisen as additional facts/pleas, which are to be

incorporated in the written statement, go to the very root of the case.

Trial ought to have allowed the proposed amendments. In support,

learned counsel for petitioners cited following judgments:-

a) State Bank of Hyderabad vs. Town Municipal Council, 2007

IV AD (SC) 393;

b) Rajesh Kumar Aggarwal & Ors. vs. K.K.Modi & Ors., 2006 III

AD (S.C.) 478, and

c) Ranjit Kaur vs. G.S.Sandhu & Ors. 2009 VI AD (Delhi) 757.

8. Present petition is under Article 227 of Constitution of India.

So, the first question which arises for consideration is as to what is the

scope of Article 227 of the Constitution of India. In Estralla Rubber

vs. Dass Estate (P) Ltd., (2001) 8 SCC 97 Supreme Court observed:-

"The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

9. Admittedly, petitioners filed their written statement in 2002.

Now, when the case is listed for evidence, after 8 years of filing of the

written statement petitioners wants to amend the same. Trial court in

this regard observed:-

"In the instant case, perusal of the record shows that the issues were firstly framed on 10.03.2003 and thereafter reframed on 03.12.2004. Thus, the trial had commenced from 03.12.2004 when the plaintiff was directed to lead his PE. The instant application for amendment of the WS on behalf of the defendants was moved on 18.03.2010. Thus, the instant application had been filed almost six years after the commencement of the trial. By virtue of Proviso to Order 6 rule 17 CPC it becomes imperative for the defendant/applicant to show that these facts could not be brought before the Court, prior to the commencement of the trial, despite due diligence on their part. However, the defendant/applicant has no where stated as to when the two documents i.e. declaration, allegedly given by Sh. Ishwar Dass Gambhir and the alleged affidavit of Smt. Lal Devi Gambhir, came to their knowledge or in their possession. The bald assertion that the affidavit of Smt. Lal Devi Gambhir was not within the knowledge of the defendants, at the time of filing of the written statement or even at the stage of commencement of trial, falls flat on its face, since the alleged document already finds mention in the list of documents, filed by the defendants way-back on 09.09.2002. Perusal of the record reveals that even the declaration dated 22.07.1982 which is Exh. PW/D1 was relied upon by the defendants, at the time of cross-examination of the plaintiff on 29.08.2001, when the contents of the declaration were put to him. Thus, applicant/defendants were fully aware of the contents of the alleged declaration and the affidavit. It appears that the defendants have intentionally and deliberately

suppressed these facts from the Court and now seek to incorporate the same by way of the instant application at such a belated stage. The matter is almost at the stage of conclusion of defendant‟s evidence. Filing of an application for amendment in pleadings at such a belated stage, appears to be a malafide attempt on behalf of the defendants to frustrate the proceedings of the case. Moreover, allowing the same at this stage would amount to starting a de novo trial. Hence, it cannot be said that the defendant has acted with due diligence, rather has malafidely and deliberately concealed the facts from the Court, which are now being sought to be incorporated in the written statement by way of this amendment application. Thus, in view of the aforesaid discussion, the instant application is dismissed."

10. In entire application under Order 6 Rule 17 of the Code, it is

nowhere stated as to on which date and how the alleged declaration

and affidavit came to the knowledge of the petitioners or in their

possession.

11. In Usha Balashaheb Swami & ors Vs. Kiran Appaso Swami &

Ors, JT 2007 (5) SC, Supreme Court observed;

"From a bare perusal of Order 6 Rule 17 of the Code of Civil Procedure, it is clear that the court is conferred with power, at any stage of the proceedings, to allow alteration and amendments of the pleadings if it is of the view that such amendments may be necessary for determining the real question in controversy between the parties. The proviso to Order 6 Rule 17 of the Code, however, provides that no application for

amendment shall be allowed after the trial has commenced unless the court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement to trial."

12. Even assuming for arguments sake that proviso to Order 6 Rule

17 of the Code is not applicable to the present case, nevertheless

petitioners have not mentioned at all in their application for

amendment as to when they came to the knowledge or possession of

the documents. Judgments cited by learned counsel are not applicable

at all to the facts of the present case.

13. Thus, present petition under Article 227 of Constitution of India

is not maintainable at all as there is no infirmity, illegality or error in

the impugned order. Present petition has been filed just to delay the

proceedings pending in the trial court. Hence, this petition is hereby

dismissed, with costs of Rs.15,000/- (Rupees Fifteen thousand only).

14. Petitioners are directed to deposit the costs with Registrar

General of this court by way of cross cheque, within four weeks from

today.

+ CM No. 15952/2010 (stay)

15. Dismissed.

16. List for compliance on 21st October, 2010.

13th September, 2010                                V.B.GUPTA, J.
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