S. Satinder Singh And Ors. vs Smt. Raminder Sarup Singh And Anr.
2011 Latest Caselaw 3392 Del

*          HIGH COURT OF DELHI : NEW DELHI

+          IA Nos.5062/2011, 11021/1995 & 7326/2006 in
           CS (OS) No. 973/1994

%                     Judgment decided on :    18.07.2011

S.SATINDER SINGH AND ORS.                     ......Plaintiffs
                Through: Mr. I.S.Alag, Adv. with Mr. J.S.Lamba,
                         Adv.

                      Versus

SMT. RAMINDER SARUP SINGH AND ANR.            .....Defendants
               Through: Mr. Anil Sapra, Sr. Adv. with
                        Mr. Asim Vaccher and Ms. Urvi
                        Kathiala, Adv. for Deft. No.2.
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            Yes
   in the Digest?

MANMOHAN SINGH, J.

1. By this order I propose to decide the three applications

being IA No.5062/2011, IA No.11021/1995 and IA No.7326/2006.

The first application IA No.5062/2011 has been filed by the plaintiff

under Order 6 Rule 17 for placing on record the amended reply to the

application filed by the defendant No.2 being IA No.11021/1995 under

Order 7 Rule 11 read with Section 151 CPC. The second application

being IA No.11021/1995 which is pending for the last about 16 years

under Order 7 Rule 11 (a) and (d) filed by the defendant No.2 seeking

the relief that the plaint be rejected on the ground that the suit is barred

by law of limitation and the suit is also barred by the provisions of the

Benami Transactions (Probation) Act, 1988. As the plaint does not

disclose any cause of action, therefore, the suit is to be dismissed. The

third application is filed by the plaintiff No.2 under Order 6 Rule 17,

being IA No.7326/2006, for amendment of the plaint in the prayer

clause as well as para 55(g) and 55(h) to the value of the new prayers

sought to be added to incorporate the subsequent events.

IA No.5062/2011

2. First, I shall take up the application under Order 6 Rule 17

for placing on record the amended reply filed in the application under

Order 7 Rule 11 by defendant No.2. It is stated in the application that

due to the order passed by the Division Bench on 8.3.2007 in FAO

(OS) 229/2005 plaintiff wishes to bring on record the said factum of

the order in his reply to the application, therefore, the said amendment

is sought. I feel, that there could be hardly any opposition to the said

application in view of the orders having already been passed by the

Division Bench on 8.3.2007. The present application is allowed. The

amended reply to the IA No.11021/1995 is taken on record. The

application stands disposed of.

IA No. 11021/1995

3. Now, I shall take up the application filed by the defendant

No.2 under Order 7 Rule 11 (a) and (d) read with Section 151 CPC for

rejection of the plaint on the following grounds:

"a) from the statements made in the plaint, the suit is barred by Law of Limitation.

b) from the statements made in the plaint, the suit is barred by the provisions of the Benami Transactions (Prohibition) Act, 1988.

c) the plaint does not disclose any cause of action and that no cause of action exists for filing the present suit."

4. Issues in the matter were framed on 03.03.2003. Both

parties were given time to file affidavits by way of evidence within

eight weeks. The plaintiffs have filed the evidence by way of affidavit

on 23.8.2005. There is no progress for recording of evidence in the

matter despite of directions issued by the Division Bench that the

evidence be recorded on day-to-day basis. More than eight years have

passed but there is no progress in the main suit.

The present application was filed in the year 1995 which was

more than 15 years ago and this application was simply adjourned

from time to time mostly with the consent of parties.

5. It is a matter of fact that defendant No.2 had earlier filed an

application under Order 7 Rule 11 CPC, being IA No.10294/2003,

seeking rejection of the plaint on the ground that the plaint did not

disclose any cause of action and the suit was barred by time. After

hearing, the said application was dismissed by order dated 21.3.2005.

The relevant extract of the order dated 21.03.2005 while

dismissing the application is reproduced hereinbelow:

"I have given my anxious consideration to the submissions made at the bar. The plea regarding maintainability of the suit was indeed available to the defendant and could have been raised by him in the written statement. No such plea, however, was urged in the written statement nor is there any explanation forthcoming for the omission. All that Mr Sethi submitted was that even when a party may not have raised a plea available to him in law in the written statement filed by him, he could do so in an application under Order 7 Rule 11 and should such a plea be actually raised, it was no defence that it was not urged in the written statement. There is no doubt that an application under Order 7 Rule 11 can be filed at any stage of the suit but then we

are dealing with a case where the parties have been litigating over the past near 10 years. An application under Order 7 Rule 11 which ought to be the first reaction of a defendant who considers the suit to be untenable either because it discloses no cause of action or is barred by law should have been filed at the threshold and without undue delay. That did not, however, happen. Instead the defendant filed his written statement and Mr. Bhatia's argument went along the trial till the stage the issues were framed. That the application is not bona fide cannot therefore be lightly brushed aside.

Having said that, the question is whether the present suit is indeed barred by any law. Order 7 Rule 11 D of the CPC envisages rejection of a plaint where the suit appears from the statement in the plaint to be barred by any law. The general principle of law is that a civil court is competent to entertain and adjudicate upon all matters of civil nature. Jurisdiction of Civil Court to entertain a civil dispute and adjudicate upon the same is, therefore, generally presumed unless the contrary is proved by reference to a specific provision of law or by necessary implication. It is not disputed that there is no specific bar to the maintainability of a suit like the one before me either in the Foreign Exchange Regulation Act or other enactment for that matter. The provisions of Order 7 Rule 11

(d) in my opinion deal only with such cases as are specifically barred by law. It is only where the statute specifically indicates a bar to the filing of the maintainability of a suit that a plaint filed in derogation of such a bar may be liable to be rejected at the threshold under Order 7 Rule

11."

6. In order dated 21.3.2005, passed in the earlier application

filed by the defendant No.2, the learned Single Judge clearly came to

the conclusion that the present case is not the one where the plaint

discloses no cause of action so as to warrant the exercise of power

under Order 7 Rule 11 CPC.

7. The aforesaid order was challenged in appeal by defendant

No.2, being FAO (OS) No.229/2005, which was dismissed as

withdrawn by the Division Bench by order dated 8.3.2005.

8. In the present application also, the defendant No.2 is

seeking dismissal of the suit on the similar grounds and has sought that

the plaint be rejected as it does not disclose any cause of auction.

9. The application filed by the defendant No.1 on similar

grounds being IA No.6403/1994 seeking the same prayer as made in

the present application was dismissed as withdrawn by order dated

05.12.1995.

10. It is pertinent to mention that as far as the ground of benami

transaction is concerned, the defendant No.2's application under Order

12 Rule 6 CPC, being IA No.4866/2000, seeking dismissal of the suit.

The said application was dismissed, vide order dated 11.01.2002.

Paragraphs 11 and 12 of the said order read as under:

"11. During the course of submissions learned counsel for defendant no.2 relied upon the assertions made in paragraphs 19 and 25 of the plaint so as to contend that the plaintiff themselves pleaded that defendant no.1 held property only as a constructive trustee or that the property had been purchased and built by Sardar Bahadur Sarup Singh in the name of defendant no.1 as benami. In line with same it was alleged that if that was so the question of grant of property or transfer of the same by defendant no.1 did not arise.

12. If the matter had ended here what has been alleged could well have taken some shape. But as referred to above and re-mentioned at the risk of repetition the plaint has been read as a whole. In paragraph 20 followed by paragraph 21 of the plaint, it has been alleged and pleaded that there has been fresh family settlements that had been arrived at between the parties, brief resume of which has alrady been given above. The sequence of event as stated though indicate that there were one after the other some family arrangement and settlement that was arrived at. It has been alleged that despite these family arrangements defendant no.2 did not accept the same and consequently declarations injunctions referred to already in the opening paragraph of the present order have been claimed. That being the position the whole edifice of the plaintiffs claim has been based on the facts of the arrangement that have been arrived at amongst the family at all times was recorded in writing also. At this stage therefore, merely because if some transfer has been made by defendant no.1 will not tantamount to stating that the whole case alleged by the plaintiffs in their plaint must fall to the ground.

It is to be adjudicated as to what effect of the family arrangement and the transactions that were arrived at. At this stage, therefore, it will not be appropriate to press into service Order 12 Rule 6 code of Civil Procedure so as to hold that on basis of admissions so made the suit is liable to be dismissed."

11. The defendant No.2 thereafter filed the appeal against the said

order, which was dismissed as withdrawn. It was expressly mentioned in the

order passed by the Division Bench that the suit is at the stage of examination

of witness and directions were issued to hold the trial day to day.

12. After having gone through the pleadings of the earlier

applications as well as the orders dated 11.01.2002 and 21.03.2005 passed in

IA Nos.4866/2000 and 10294/2003 respectively, which have been confirmed

by the two Division Benches of this Court. I am not inclined to pass any

order in the present application which is not maintainable. The same is

dismissed. However, the objections raised by the defendant No.2 in the

present application shall have to be decided on merit at the final stage of the

suit.

IA No. 7326/2006

13. The third application is filed by the plaintiff No.2 under Order

6 Rule 17 read with Section 151 CPC. The plaintiff No.2 is

seeking permission of the court to incorporate paras 54 A to 54 P, the

subsequent events in the proposed plaint. The details of the same are

mentioned in the application and in view of the subsequent events

referred in para 54A to 54P, the plaintiff No.2 desires to add the

following prayers No.vi(a) to vi(c) in the plaint :

"vi(a)-A decree of Declaration declaring Plaintiff No.2 to be the sole and absolute owner of 50% undivided and undisputed share and 25% disputed undivided share of property bearing No.3, Sardar Patel Marg, New Delhi, on the basis of the compromise contained in the application dated 30th October, 1995 under Order 23 Rule 3 of the Code of Civil Procedure, Will dated 10th February, 1988 of Defendant No.1, order dated 5th December, 1995 of this Hon'ble Court, order dated 26th August, 1997 of the Division Bench in FAO (OS) No.26/1996, Memorandum of oral family settlement dated 2nd April, 1998 between Defendant No.1 and the Plaintiffs, Relinquishment deed dated 3rd April, 1998, orders dated 21st March, 2005 and 22nd March, 2006 of this Hon'ble Court in I.A.No.3754/2004 and IA No.1242/2006, gift deeds dated 26th February 1999 and 29th September, 2002 by Defendant No.1 in favour of Plaintiff No.2 and the mutations of the L&DO in favour of Plaintiff No.2;

(vi)(b) A preliminary decree of partition in favour of Plaintiff No.2 and against Defendant No.2 declaring Plaintiff No.2 as the owner of 3/4th share of the property bearing No.3, Sardar Patel Marg, New Delhi.

(vi)(c) Final decree of partition and separate

possession by division of the aforesaid properties by metes and bounds in favour of Plaintiff No.2 and against Defendant No.2."

14. The plaintiff No.2 also wants to incorporate the following

paragraphs as paras 55(g) and 55(h) to value the suit as per the

proposed new prayers sought to be added:

"55(g) The value of the suit for the purposes of the jurisdiction on the relief of partition is Rs.2.00 crore being the share of Plaintiff No.2 in the suit property sought to be partitioned on which court fees of Rs.20/- has been paid as Plaintiff No.2 is a co-owner thereof and is in occupation of the suit property. The possession of one co-owner is, in law, possession of all. Plaintiff no.2 undertakes to pay further Court fee, if any, payable or directed to be paid by this Hon'ble Court upon determination of valuation of Suit property. The value of the relief for declaration is Rs.200/- on which Court fees of Rs.20/- has been paid."

15. The plaintiff No.2 is seeking permission of the Court to

incorporate the subsequent events in the plaint. The gist of which is as

under:

a. In proposed paragraph 54A, it is stated that during the pendency

of the suit, the defendant No.1 and the plaintiffs arrived at a

settlement. The terms of the settlement are contained in an

application dated 30.10.1995 under Order 23 Rule 3 CPC read

with Section 151 CPC and the contents of the application are

given in the said paragraph.

b. In proposed paragraph 54B, it is mentioned that the defendant

No.1 also executed a Will dated 29.10.1995. The contents of

the Will are mentioned in this paragraph.

c. In proposed paragraph 54C, there is reference to order dated

05.12.1995.

d. In the proposed paragraph 54D, it is stated that the plaintiffs

filed an appeal, being FAO (OS) No.26/1996, before a Division

Bench of this Court and the operative portion of the order

passed by the Division Bench is reproduced as Ex.PW 1/43.

e. In proposed paragraph 54E, it is stated that the agreement had

become part of the record of the suit between the plaintiff and

defendant No.1, being Suit No.973/1994, where the agreement

was recorded.

f. In proposed paragraph 54F, it is stated that subsequently an oral

family settlement dated 29.03.1998 took place between the

defendant No.1 and the plaintiffs as a result of which the

plaintiffs 1 and 3 relinquished all their rights. The detail of the

said agreement is mentioned in this paragraph.

g. In proposed paragraph 54G, it is stated that the plaintiffs 1 and 3

also executed registered relinquishment deed dated 03.04.1998

which is marked as Ex. PW 1/45.

h. In proposed paragraph 54H, it is mentioned that the plaintiff

No.2 became entitled to acquire all rights of defendant No.1 in

the suit property including her undivided 50% undisputed share

and 25% disputed share after her death.

i. In proposed paragraph 54I, it is stated that the defendant No.1

further executed a Codicil dated 03.04.1998. The detail of the

same is given in this paragraph which is marked as Ex.PW 1/46.

j. In proposed paragraph 54J, it is mentioned that in view of the

above, the plaintiffs 1 and 3 have relinquished their rights and

are exclusively vested with the plaintiff No.2.

k. In proposed paragraph 54K, the reference to Gift Deed dated

26.02.1999 executed by the defendant No.1 is made which was

followed by a registered Rectification Deed dated 16.04.1999.

The detail of the same is mentioned in this paragraph which is

marked as Ex.PW 1/49 and 50.

l. In proposed paragraph 54L, it is mentioned that the defendant

No.1 also executed a registered Gift Deed dated 28.09.2002

followed by a registered Rectification Deed dated 28.09.2002.

The same have been produced along with the evidence dated

20.08.2005 and are on record as Ex.PW1/49.

m. In proposed paragraph 54M, it is stated that the defendant No.1

also executed Codicil dated 04.10.2002. The same has been

filed by way of evidence as Ex.PW1/51.

n. In proposed paragraph 54N, it is stated that in view of the

relinquishment deed, the plaintiffs 1 and 3 are left with no claim

in the undivided and undisputed share of defendant No.1 in the

suit property including the air-conditioning plant and the entire

furniture.

o. In proposed paragraph 54O, the detail of an application filed by

the plaintiffs under Section 146 of the Code of Civil Procedure,

being IA No.3754/2004, for substitution of plaintiff No.2 in

place of plaintiffs 1 and 3, is given.

p. In paragraph 54P, it was indicated that the defendant No.1

expired on 29.11.2005. The defendant No.1 had settled with the

plaintiff her disputes during her life time which was recorded by

this Court.

16. The application is strongly opposed by the defendant No.2

mainly on the ground that the plaintiffs have challenged the

compromise arrived at between the defendant No.1 and defendant

No.2 in the present suit wherein the defendant No.1 had consented to

give 1/4th undivided portion of the property in 3, Sardar Patel Marg,

New Delhi to the defendant No.2. The plaintiffs have sought a

declaration to the effect that the said compromise declared null and

void, however, a permanent injunction has been sought to the effect

that the defendant No.2 be restrained from dealing with the said 1/4th

undivided portion of the suit property. The contention of the defendant

No.2 is that the said subsequent events are irrelevant to the

controversy in issue and secondly the said events, if any, give rise to

an independent cause of action and since they are already part of the

court record they would be looked into at the time of hearing of the

suit.

17. The defendant No.2 has given the comprehensive reply to

proposed paragraphs 54A to 54P in its reply filed on 21.11.2006. It

is stated that all the events referred in the application were in the

knowledge of the plaintiffs and the details of the same also form a part

of the record. In fact, in the garb of bringing on subsequent events on

record the plaintiff No.2 has sought time to amend the reliefs sought,

as the present suit is not maintainable being barred by the provisions of

Section 34 of the Specific Relief Act, 1963.

18. Issues in the present case were framed in the year 2003.

The plaintiff No.2 adduced its evidence by way of affidavit on

23.08.2005. The present application was filed by the plaintiff in the

year 2006.

19. It is a settled law that the amendment of pleading under

Order VI Rule 17 is to be allowed if such an amendment is required

for proper and effective adjudication of controversy between the

parties and to avoid multiplicity of the judicial proceeding subject to

certain conditions. It is also a settled law that in certain situations a

time barred plaint cannot be allowed.

20. Order VI Rule 17 of the Code of Civil Procedure deals with

amendment of the pleading. By reason of the Civil Procedure Code

(Amendment) Act, 2002 (Act 22 of 2002) a proviso has been added to

prevent the application for amendment being allowed after the trial has

commenced. The proviso reads as under:

"The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

Unless the court comes to the conclusion that in spite of

due diligence, the party could not have raised the matter before the

commencement of the trial, the jurisdiction of the court in certain

circumstances is taken away in the absence of conditions precedent.

So, the plaintiff No.2 under these circumstances was not able to satisfy

the court as to why he could not raise the matter of amendment of the

plaint before the commencement of the trial.

21. As far as the subsequent events referred in Para 54 (A) to

54 (P) are concerned, the plaintiff No.2 is allowed to incorporate the

subsequent events, if any, by filing of his additional affidavit as

evidence.

22. Even most of the details of the subsequent events and

documents duly executed have already been placed in the affidavit of

Tejinder Singh filed on 23.8.2005 produced by the plaintiff by way of

evidence and have been duly exhibited as mentioned in the affidavit.

23. The present application has been filed after twelve years

from the date of filing of the suit. No doubt some events have

happened after filing the suit but the same have come on record one

way or the other. But one has to see the overall conduct of the party

who is seeking the relief of this nature as to whether his intention and

demand is genuine or not. In the present case, it appears to me that in

the garb of the bringing subsequent events on record, the plaintiffs are

trying to incorporate the reliefs of partition and separate possession in

favour of the plaintiff No.2 which would change the nature and

character of the suit and it would prejudice the case of defendant No.2

and would also give rise to an independent cause of action. Thus, the

application is not maintainable. However, in the interest of justice,

equity and fair play, this Court is inclined to grant one more

opportunity to the plaintiff No.2 to file the additional affidavit for

incorporating any subsequent event if left earlier within two weeks.

The present application is allowed to this extent only. The rest of the

relief sought in the application is rejected.

CS (OS) No. 973/1994

List the matter before the Joint Registrar on 17.10.2011.

MANMOHAN SINGH, J.

JULY 18, 2011 mm/dp