Kulvinder Singh vs Harvinder Pal Singh & Anr.
2012 Latest Caselaw 3987 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+ I.A. No. 10747/2011 (by the defendant No.1 u/O 6 R 17 CPC) in
                    CS(OS) 1619/2009

                                              Date of Decision: 9th July, 2012

IN THE MATTER OF
KULVINDER SINGH                                           ..... Plaintiff
                         Through: Mr. Sanjeev Bhatnagar, Advocate


                   versus

HARVINDER PAL SINGH & ANR.                         ..... Defendants
                   Through: Mr. Vishal Singh, Advocate for the
                   defendant No.1.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. The present application has been filed by the defendant No.1

in a suit instituted by the plaintiff for passing a decree of partition in

respect of the ground floor and half of the second floor of premises

bearing No.B7, 105, Safdarjung Enclave Extn., New Delhi, and for a

decree of permanent injunction.

2. The aforesaid suit was registered on 01.09.2009 and

summonses were issued returnable on 27.11.2009. Appearance was

entered on behalf of the defendants and written statement came to be

filed on 18.11.2009, whereafter replication to the written statement of the

defendant No.1 was filed by the plaintiff in February, 2010. After the

pleadings were completed, the present application came to be filed by the

defendant No.1 on 11.07.2011. Alongwith the present application, the

defendant No.1 had filed another application under Order VIII Rule 1(A)

read with Section 151 CPC, registered as I.A. No.10888/2011,

whereunder he had sought permission to place some additional

documents on record.

3. In the present application, the defendant No.1 has sought

amendment to the written statement by incorporating the brief facts prior

to the preliminary objections taken in the written statement. The said

brief facts run into 20 paras and have been set out in para 9.1 of the

application. Apart from the aforesaid amendment, the defendant No.1

also seeks to amend the averments made on merits in paras 2 and 5 of

the written statement and the verification clause as set out in paras 9.2,

9.3 and 9.4 (wrongly typed as para 9.3) of the application. It is averred

in the application that the amendments sought to be incorporated are

only to buttress the defence already taken by the defendant No.1 in the

written statement, which is to the effect that the subject property was

acquired by him through a gift deed executed by his father, Shri Gurdial

Singh in his favour and duly registered with the Sub-Registrar, Delhi. It is

stated by the counsel for the defendant No.1 that the amendments

sought in the written statement are only to explain the manner in which

late Shri Gurdial Singh came to acquire the title in the subject premises

and that the defendant No.1 does not propose to rescind from or alter the

stand taken by him in the written statement.

4. Secondly, it is submitted by the counsel for the defendant

No.1 that the present application was accompanied by another application

filed under Order VIII Rule 1(A) read with Section 151 CPC, registered as

I.A. No.10888/2011, whereunder the defendant No.1 had sought to place

on record certain additional documents on the ground that the same were

in his custody in Canada and he had brought them to Delhi on 05.07.2011

and then had sought leave to place them on record. Learned counsel

states that the relief prayed for in the aforesaid application had not been

opposed by the plaintiff as is apparent from a perusal of the order dated

14.07.2011 passed by the Joint Registrar and upon payment of costs of

`3,000/-, the additional documents filed by the defendant No.1 were

taken on record, whereafter admission and denial of documents had also

been carried out. He contends that all the documents that have been

brought on record only substantiate the submissions that have been made

in the proposed amendments as mentioned in the present application for

purposes of completing the chain to establish the manner in which the

title of the subject premises came in the hands of late Shri Gurdial Singh.

5. In support of his submission that the Court ought to be liberal

in granting the prayer for amendment of pleadings unless serious injustice

or irreparable loss is caused to the other side or the prayer for

amendment was not a bona fide one and further that the approach of the

Court in allowing the amendment of the written statement ought to be a

liberal approach as compared to the approach towards the plaintiff to seek

amendment in the plaint, learned counsel for the defendant No.1 relies

upon the following judgments:-

(i) Usha Balashaheb Swami & Ors. vs. Kiran Appaso Swami & Ors. (2007) 5 SCC 602

(ii) Surender Kumar Sharma vs. Makhan Singh (2009) 10 SCC 626

6. Counsel for the defendant No.1 further states that although in

the present case, the defendant No.1 has not taken a plea which is

inconsistent with the earlier plea taken by him in the written statement, it

is settled law that while amending the written statement, raising of

mutually inconsistent pleas by the defendant is permissible and such

amendments can be permitted at any stage. To urge this ground,

reliance is placed on the judgment in the case of Arundhati Mishra vs. Sri

Ram Charitra Pandey reported as (1994) 2 SCC 29.

7. Per contra, the present application is opposed by the counsel

for the plaintiff, who submits that by seeking to amend the written

statement as filed originally, the defendant No.1 is attempting to alter

and change his stand as taken in the written statement. He submits that

the present amendment application came to be filed by the defendant

No.1 only after the plaintiff had filed an application under Section 340

Cr.PC, registered as I.A. No.3053/2010, wherein the plaintiff had

categorically stated that a collaboration agreement was entered into on

behalf of the father of the parties, i.e., late Shri Gurdial Singh on one

hand and Shri Hardial Singh, defendant No.2 on the other hand and on

the basis thereof, the parties had agreed to divide the subject premises in

a particular manner and that it was agreed that the premises was

ancestral but formal mutation thereof had been carried out in the name of

Shri Gurdial Singh.

8. This Court has heard the counsels for the parties and

considered their respective stands.

9. It is a settled law that while considering an application filed by

the defendant seeking amendment of the written statement, the

principles to be applied by the Court should be much more liberal as

compared to the principles relating to amendment of a plaint. In other

words, amendment to the written statement stands on a different footing

from the amendment to the plaint. Though amendment to pleadings

cannot be permitted so as to materially alter the substantial cause of

action in a plaint, there is no such principle that can be applied to

amendment in the written statement. Therefore, it is permissible for the

defendant to take inconsistent pleas, mutually contrary pleas or to

substitute the original plea taken in the written statement.

10. It is also relevant to note that the present application came to

be filed by the defendant No.1 when admission and denial of documents

had yet to take place. Furthermore, the defendant No.1 had filed another

application alongwith the present application, whereunder a number of

documents were sought to be placed on record. As the aforesaid request

was not opposed by the plaintiff, the said application was allowed by the

Joint Registrar vide order dated 14.07.2011. Thereafter, admission and

denial of the documents that were filed by the defendant No.1 was also

conducted by the parties, while the present application remained pending.

11. A perusal of the proposed amendments sought to be

incorporated by the defendant No.1 in the original written statement

shows that it is not a case of withdrawal of any admissions made by him

in the original written statement or of altering the stand taken by him,

which is to the effect that the title of the subject premises had passed in

his hands on the basis of a registered gift deed executed by late Shri

Gurdial Singh in his favour. The defendant only seeks to bring on record

a different set of facts that culminated in the title of the premises coming

in the hands of late Shri Gurdial Singh.

12. Lastly, it is relevant to note that if the amendments sought to

be incorporated by the defendant No.1 are not permitted, then it is not

likely that the real controversy between the parties would be ultimately

resolved, which is an additional reason for permitting the amendments

sought to be incorporated by the defendant No.1 in his written statement.

Moreover, the application cannot be treated as a belated one as it was

filed immediately after the pleadings were completed.

13. In view of the aforesaid facts and circumstances and having

regard to the fact that no prejudice shall be caused to the plaintiff if the

defendant is permitted to amend the written statement, it is deemed

appropriate to allow the present application so as to do full and complete

justice between the parties. However, the application is allowed subject

to payment of costs of `5,000/- to the plaintiff. The amended written

statement shall be filed within two weeks alongwith proof of payment of

costs with advance copy to the counsel for the plaintiff, who may file the

replication within two weeks thereafter.

14. The application is disposed of.

                                                           (HIMA KOHLI)
JULY 09, 2012                                                 JUDGE
rkb/sk