Delhi High Court

Mr. Ajay Batra vs Mr. Y.P. Batra & Ors on 5 July, 2012

Author: Kailash Gambhir

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+                                CS(OS) 2154/2007

                                            Judgment delivered on:5.7.2012

       Mr. Ajay Batra                                        ..... Plaintiff
                            Through:   Mr.Abhinav Vashisht, Sr. Advocate with
                                       Mr.Sachin Puri, Adv.
                       versus


       Mr. Y.P Batra & Ors.                                   ..... Defendants
                        Through:       Mr. Ravi Gupta, Sr. Advocate with
                                       Mr. Rishab,Adv.


       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR



IA No. 130/2012

1.

By this application filed under Order 6 Rule 17 of CPC the plaintiff

seeks to amend the present plaint. Through this amendment the plaintiff

primarily seeks to incorporate the relief of claiming a decree of partition by

metes and bounds in respect of the alleged joint family properties which are

already subject matter of the existing suit. The plaintiff further seeks

declaration that he be declared as owner of the 25% of the first suit

property i.e C-173, Defence Colony, New Delhi in his individual capacity and

for partition of remaining 75% amongst the coparceners.

2. The present application has been contested by the defendants and the

stand taken by the defendants in their reply is that the present amendment

has been sought by the plaintiff with a view to frustrate the application filed

by the defendants under Order 7 Rule 11 of CPC. The defendants have

further stated that the amendment as sought by the plaintiff, if allowed,

might change the nature of the suit. The main ground for opposing the

present application as canvassed by the defendants in their reply as well

as through oral arguments was that the amendments as sought by the

plaintiff, if allowed at this stage, then the reliefs claimed by the plaintiff

would be time barred as the suit for claiming partition in the joint family

properties can be filed within a period of three years from the date of the

refusal of the same by the defendants.

3. Arguing the present application, Mr. Abhinav Vashisht, learned

Senior Advocate representing the plaintiff submitted that by the present

application the plaintiff seeks to amend the present suit by adding the relief

of partition and possession and also by claiming an additional share in the

joint family properties. Counsel also submitted that the present amendment

being sought by the plaintiff will not change the basic nature of the suit on

which the case of the plaintiff rests and it will remain the same. Counsel

further submitted that the objection raised by the defendants with regard

to limitation cannot be appreciated at this stage as the question of

limitation is a mixed question of law and fact and the same can only be

decided at the time of trial. In support of his arguments counsel placed

reliance on the following judgments:

i. Bajaba alias Bajirao Vishvanath Oke Vs. Trimbak Vishvanath Oke

(1910) 34 Bom 106.

ii. Ramesh B.Desai & Ors. Vs. Bipin Vadilal Mehta & Ors (2006) 5 SCC

638.

iii. Gurubachan Singh Gill Vs. J.S. Bagga(2005) 13 SCC 381

iv. UOI & Ors. Vs. V.N. Singh (2010) 5 SCC 579

v. Balasaria Construction (P) Ltd. Vs. Hanuman Seva Trust & Ors.

(2006) 5 SCC 658.

4. Counsel also submitted that the children of the plaintiff have already

filed a partition suit claiming partition in respect of the same properties and

therefore also the present amendment will not cause prejudice to the rights

of the defendants who are otherwise contesting the partition suit filed by

the children of the plaintiff.

5. On the other hand, Mr. Ravi Gupta, learned Senior advocate for the

defendants submitted that the application seeking amendment of plaint is

clearly barred by time. Elaborating his arguments, counsel submitted that

the plaintiff had filed the present suit on 23.10.2007 seeking relief of

declaration and injunction and the present suit was earlier amended by the

plaintiff but at the time of first amendment the plaintiff never claimed

any such amendment now being sought by him. Counsel thus argued that

the time period of three years as prescribed under the residuary Article 113

of the Limitation Act came to an end from the date of filing of present suit

or at the most from the date of filing of the written statement by the

defendant wherein the defendants have claimed exclusion of the plaintiff

from the HUF. Counsel further submitted that the present amendment

application has been moved by the plaintiff to fill up the lacunas as pointed

by the defendant in the application moved under Order 7 Rule 11 of CPC

and therefore the plaintiff cannot be allowed to seek amendment in the

existing plaint. In support of his arguments, counsel for the defendants

relied upon the following judgments:

i. A.F.Investment Ltd. Vs. M/s. Raja Ram Bhasin & Co.,2006 IV AD(Delhi) 620.

ii. Shriram Bhartiya Kala Kendra Vs. Shubha Mudgal, 2010 AD (Delhi) 643.

iii. Rajkumar Gurawara (Dead) Thr. L.Rs. Vs. M/s. S.K. Sarwagi & Co.Pvt. Ltd & Anr., AIR 2008 SC 2303.

        iv.    Kenchegowda Vs. Siddegowda, (1994) 4 SCC 294.

         v.    Mohit Kumar Vs. Himalayan Institute Hospital Trust, 172
               (2010) DLT 716.

        vi.    Rajkumar Gurawara Vs. M/s S.K. Sarwagi & Co., AIR 2008 SCC
               2303.

6. Counsel also submitted that it is a settled legal position that the

amendment claimed by the plaintiff, if time barred, then such amendment

cannot be allowed.

7. In response to the said contention of the counsel for the defendants,

counsel for the plaintiff submitted that the relevant articles of Limitation

Act as applicable to the facts of the present case are Articles 109 and 110

and not Article 113. Counsel thus stated that the limitation period is 12

years from the date of the alleged exclusion as claimed by the defendants.

8. I have heard learned counsel for the parties at considerable length

and given my thoughtful consideration to the arguments advanced by them.

9. Before I deal with the respective contentions raised by the counsel for

the defendants it would be necessary to give brief facts of the case as set

out by the plaintiff in the existing plaint.

10. A suit for declaration and injunction is filed by the plaintiff in respect

of various immovable properties on the ground that he has undivided

interest as coparcener in all such properties which were acquired by the

defendant No.1 from the nucleus of the ancestral funds. In the unamended

suit the plaintiff has prayed for declaration of his status qua the suit

properties being a member of Hindu Undivided Family. The plaintiff has

further claimed that he continues to have an undivided interest in the suit

properties comprising of various lands and buildings and the defendants

have no right to impede or take away such rights of the plaintiff to their

sole advantage or benefit. The plaintiff in the existing suit also sought

relief of declaration that the gift deed dated 11.1.2007 executed by the

defendant no.1 in favour of the defendant no.4 gifting away the entire

property bearing No. C-173, Defence Colony, New Delhi be declared as void

and non est. In the written statement filed by the defendants, the alleged

right of the plaintiff in the said properties was seriously refuted on the

ground that nothing was acquired by the defendant no.1 through the

nucleus of ancestral funds and all the properties as were claimed by the

plaintiff to be HUF properties were self acquired properties of

defendant no.1 and it was only for the purpose of tax planning that the

income from some of the properties was assigned to the HUF bank

account opened only in 1983.

11. From the aforesaid narration of facts, it would be manifest that the

whole controversy between the parties revolves around the issue as to

whether the immovable properties as disclosed in the suit are the joint

family properties acquired by the defendant no.1 through the nucleus of

ancestral funds or the same are self acquired properties of the defendant

no.1. During the pendency of the present suit another suit bearing no.

581/2007 was also preferred by none else but the children of the plaintiff

herein, wherein they have also claimed the decree of partition and separate

possession in respect of the same very properties, besides challenging the

said gift deed dated 11.1.2007.

12. Before considering the present application, it will be important herein

to reproduce order 6 rule 17 as under:

"17. Amendment of pleadings.-

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 question 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."

As is manifest from a bare reading of the above provision, the above rule

confers a discretionary jurisdiction on the court exercisable at any stage of

the proceedings to allow either party to alter or amend his pleadings in such

a manner and on such terms as may be just. The rule goes on to provide

that all such amendments as may be necessary for determining the real

questions in controversy between the parties may be allowed. The Apex

Court in Pirgonda Hongonda Patil vs. Kalgonda Shidgonda Patil

AIR1957SC363, while interpreting the said provision held that two

conditions need to be satisfied to allow the amendment sought which are (a)

not working injustice to the other side, and (b)of being necessary for the

purpose of determining the real questions in controversy between the

parties. Hence to disallow the amendment the court has to be satisfied that

the other party would be so affected by the amendment that it cannot be

placed in the same position as before. It has also been held time and again

that the an amendment would generally not be disallowed except where a

time barred claim is sought to be introduced. Another guiding principle for

allowing the amendment is that it has to be seen whether through the

amendment the nature of the suit is sought to be altered. In Laxmidas

Dahyabhai Kabarwala vs. Nanabhai Chunnilal Kabarwala

AIR1964SC11 it was held that an amendment can be refused when the

effect of it would be to take away from a party a legal right which had

accrued to him by lapse of time, it may be so when fresh reliefs are added

or fresh allegations put by way of an amendment, but where an amendment

just clarifies an existing pleading and does not in any substance add to or

alter to it , there is no good reason not to allow it. Capitulating, the

aforesaid , the Supreme Court in Revajeetu Builders & Developers Vs.

Narayanaswamy & Sons & Ors., 2009(10)SCC84 laid down the broad

factors to be taken into consideration while dealing with such a situation.

The relevant para of the same is reproduced as under:

"67 On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and

(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

68. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive."

Furthermore, it is also ingeminated that amendments cannot be claimed as

a matter of right and under all circumstances, but the courts while granting

such amendments cannot adopt a hypertechnical approach. However, the

delay in filing the application for amendment can be compensated in terms

of costs.

13. Now applying the aforesaid legal principles to the facts of the case at

hand, one of the main objections raised by the counsel for the defendants

was that the amendment as sought by the plaintiffs, if allowed would be

barred by the law of limitation. Here it would be worthwhile to refer to the

judgment of the Apex Court in the case of South Konkan Distillers & Anr.

vs. Prabhakar Gajanan Naik & Ors. (2008)14SCC632 wherein it was

held that there is no absolute rule that in every case where a relief is time

barred the amendment should not be allowed and it is open to the court to

allow the amendment if it is of the view that the it can save multiplicity of

proceedings . It would be apt to refer here to the relevant paras of the said

judgment here as under:

"8. Before we deal with the orders of the courts below, as to whether the application for amendment of the written statement and the counter claim was rightly rejected or not, let us consider the laws on the question of allowing or rejecting a prayer for amendment of the pleadings when the plea of limitation was taken by one of the parties in the suit. It is well settled that the court must be extremely liberal in granting the prayer for amendment, if the court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment, shall suffer irreparable loss and injury. It is also equally well settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the court to allow an amendment if it. is of the view that allowing of an amendment shall really sub-serve the ultimate cause of justice and avoid further litigation. In L.J. Leach & Co. Ltd. and Anr. v :Jardine Skinner & Co. [1957]1SCR438 , this Court at paragraph 16 of the said decision observed as follows:

It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interest of justice.

9. Again in T.N. Alloy Foundry Co. Ltd. v. : T.N. Electricity Board and Ors. (2004)3SCC392 this Court observed as follows:

The law as regards permitting amendment to the plaint, is well settled in L.J. Leach and Co. Ltd. v. Jardine Skinner and Co., it was held that the Court would as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But this is a factor to be taken, into account in. exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it.

It is not disputed that the appellate court has a coextensive power to the trial court. We find that the discretion exercised by the High Court in rejecting the plaint was in conformity with law.

10. From the above, therefore, one of the cardinal principles of law allowing or rejecting an application for amendment of the pleading is that the courts generally, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of filing of the application. But that would be a factor to be taken into account in the exercise of the discretion as to whether the amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interest of justice. In Ragu Thilak D. John v. S. Rayappan and Ors. 2001 (2) SCC 472, this Court also observed that where the amendment was barred by time or not, was a disputed question of fact and, therefore, that prayer for amendment could not be rejected and in that circumstances the issue of limitation can be made an issue in the suit itself. In a decision in Vishwambhar and Ors. v : Laxminarayan (Dead) through Lrs. and Anr.AIR2001SC2607 , this Court held that the amendment though properly made cannot relate back to the date of filing of the suit, but to the date of filing of the application. Again in Vineet Kumar v. :Mangal Sain Wadhera [1984]2SCR333 this Court held that if a prayer for amendment merely adds to facts already on record, the amendment would be allowed even after statutory period of limitation."

Hence as would be evident from the above that to disallow amendment in

case the plea of limitation is taken up is not a straitjacket formula.

Adverting to the plea of limitation raised by the counsel for the defendant

that the amendment in the present case should not be allowed as the

remedy of the plaintiff to file the suit has become time barred in view of

Article 113 of the Limitation Act. To be more precise the contention raised

was that as per Article 113, limitation of three years period would be

applicable for filing a partition suit from the date of refusal by the

defendants to such claim of the plaintiffs. Counsel for the plaintiff on the

other hand placed reliance on Article 110 of the Limitation Act to urge

that it is Article 110 which is the relevant article applicable to a partition

suit and under the said Article the plaintiff has a right to enforce his claim

in the joint Hindu Family properties. Counsel further submitted that Articles

109 and 110 of the Limitation Act provide 12 years period from the date

when the plaintiff gets the knowledge that he has been excluded from the

share of the joint Hindu Family properties. The plaintiff in para 3 of the

unamended plaint has claimed cause of action for filing the suit from

March 2007, when as per the plaintiff, the defendants had threatened to

dispose of the suit properties without the consent of the plaintiff and also

when the defendant no.1 had gifted the property bearing no. C-173,

Defence Colony, New Delhi in favour of defendant no.4 as back as on 11 th

January 2007. Going by the dates of events as mentioned above, the claim of

the plaintiff does not seem to be time barred in view of the legal principles

enunciated above. However, if required, the court can always frame a

separate issue with regard to limitation.

14. Another contention of the counsel for the defendant was that the

plaintiff by way of the present amendment seeks to change the nature of the

suit. There is no dispute with the legal position that where the amendment

seeks to set up a new case or a new cause of action, it ought not to be

allowed. However in the case of A.K Gupta vs. Damodar Valley Corpn.

AIR1967SC96 an exception to the said rule was carved out wherein it was

held that where the amendment does not constitute the addition of a new

cause of action or raise a different case, but amounts merely to a different

or additional approach to the same facts, the amendment is to be allowed

even after the expiry of the statutory period of limitation. In the facts of

the case at hand, what weighs in support of the claim of the plaintiff is that

the plaintiff has not introduced any new facts to seek this amendment as

the basic facts continue to remain the same, even for his claim to seek

partition in the alleged joint Hindu Family properties. The genesis of the

claim of the plaintiff even in the existing plaint is that the suit properties

have the status of ancestral properties in the hands of the plaintiff and

the defendant no.1 and therefore based on the same facts the plaintiff

through the present application seeks the relief of partition of the alleged

joint Hindu Family properties. It also cannot be lost sight of the fact that

the children of the plaintiff have also filed a suit for partition and

declaration in respect of these very properties and therefore also this

court has to decide the status of the said properties; whether the same

belong to the ancestral funds having the status of joint family properties or

the same are self acquired properties of defendant no.1.

15. It is a settled legal position that pre trial amendments are allowed

liberally then those sought to be raised after the commencement of the trial.

Seeking post trial amendment is no more an easy task as after the

introduction of a proviso to the main provision of Rule 17 the party seeking

post trial amendment has to satisfy the court that inspite of due diligence it

could not seek the amendment before the commencement of the trial. Here

it would be relevant to refer to the judgment of the Apex Court in the case

of Rajkumar Gurawara vs. M/s S.K Sarwargi & Co.Pvt Ltd.

AIR2008SC2303 wherein it was held as under:

"The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this rule is subject to proviso appended therein. The said rule with proviso again substituted by Act 22 of 2002 with effect from 01.07.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings able to satisfy the court that in spite of due diligence could not raise the issue before the commencement of trial and the court satisfies their explanation, amendment can be allowed even after commencement of the trial. To put it clear, Order VI Rule 17 C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre- trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso."

In the present case the suit is at the pre trial stage and the dictum of law

states that liberal approach should be adopted to allow an amendment at

the pre trial stage if such an amendment is found necessary to determine

the real controversy between the parties.

16. There is no dispute with the legal position set by the judgments cited

by the counsel for the defendant but the same are not applicable to the facts

of the case at hand and are clearly distinguishable.

17. In the present case the parties are brothers and sisters and the

subject matter lucrative and hence led the defendants to relentlessly oppose

the present application on grounds of gross delay, reincarnating the present

nature of the suit and limitation. The power under the said rule is

discretionary to be exercised on sound judicial principles and multiplicity of