Delhi High Court
Tripat Kaur Sandhu & Ors. vs Vijay Gupta & Anr. on 7 March, 2012
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision : 07.03.2012
+ FAO (OS) No.82 of 2011
TRIPAT KAUR SANDHU & ORS. ..... Appellants
Through: Mr. Manish Sharma & Ms. Shivanshi Gupta,
Advs.
Versus
VIJAY GUPTA & ANR. ..... Respondents
Through: Mr. D.K. Rustagi, Mr. Arpit Bhargava &
Mr. B.S. Bagga, Advs. for R-1 with R-1 in
person.
None for Respondent No.2.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE RAJIV SHAKDHER
SANJAY KISHAN KAUL, J.
1. Mr. Vijay Gupta (respondent No.1 herein) filed a suit for specific
performance, declaration, permanent & mandatory injunction as
well as a decree of damages in the alternative against Shri
Gursharan Singh Sandhu (for short „GSS‟)/respondent No.2 in
respect of flat No.113, 1st Floor, New Delhi House, Plot No.27,
Barakhamba Road, New Delhi-110001 admeasuring 872 sq.ft.
(hereinafter referred to as the „suit property‟). Respondent No.1
alleged that GSS has represented himself as the owner of the flat
and agreed to sell the same to him for a total consideration of
`38,80,400.00, amount being calculated @ `4,450.00 per sq.ft.
Respondent No.1 paid a sum of `1.00 lakh in cash as part payment
to GSS for which a receipt was executed (Exhibit P-1), which reads
as under:
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"RECEIPT
Received Rs.1,00,000/- (Rupees One lac only) by cash as
payment from Mr. Vijay Gupta S/o Sh. Narinder Pal Azad R/o
497, Sector 16A, Faridabad against the sale of our flat No.113,
situated at 1st Floor, New Delhi House, 27, Barakhamba Road,
New Delhi-110001 admeasuring 872 sq.ft. for total
consideration of Rs.38,80,400/- (@Rs.4,450/- per sq.ft.).
Sellers shall pay all dues upto the date of agreement along with
transfer charges payable to builder.
Date: 27th March, 2004 (GURSHARAN SINGH SANDHU)
S/o Late Sh. Harcharan Singh Sandhu
R/o 173, Sector-19A, Chandigarh.
1. Sd/-
Pavan Kumar
807, Rohit House,
3, Tolstoy Marg,
New Delhi-1.
2 Sd/-
Mahesh Goel S/o Sh. R.N. Goel
369/16A
Faridabad."
2. As per the receipt GSS was to pay all the dues up to the date of the
agreement along with transfer charges payable to the builder. The
receipt is witnessed by Shri Pavan Kumar and Shri Mahesh Goel.
The plaint states that the transaction was to be completed within
two (2) months or soon thereafter, after obtaining necessary
permissions and clearances and the balance amount was payable on
receipt of possession as per the said understanding though not
evidenced in the receipt. Respondent No.1 contacted GSS on
15.5.2004 before the expiry of the said period informing that he has
made arrangement for the entire sale consideration but was
informed that the permissions/clearances had not been obtained.
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Despite number of endeavours of respondent No.1 and his
readiness and willingness to perform the obligations for sale of the
property, the transaction was not completed but on the other hand
he came to know that GSS was attempting to sell the flat to some
other person at a higher price. This resulted in filing of the suit for
specific performance and in the alternative for recovery of `25.00
lakh towards compensation, including advance paid along with
interest @ 24 per cent per annum. The suit was filed on 7.7.2004.
3. It may be noticed that the index of the suit referred to "Shri
Gursharan Singh Sandhu & Ors." as "defendants" but only one
defendant "Gursharan Singh Sandhu" was impleaded. The plaint
also in some places referred to "defendants" despite there being
one defendant. The significance of this came to light when the
written statement was filed by GSS. GSS pleaded that he was not
the sole owner of the property and that respondent No.1 had been
informed that he would have to take consent of other co-owners
and the Flat-Buyers‟ Agreement dated 27.10.1976 was shown to
respondent No.1 which recorded the names of all the co-owners,
being Lt. Col. Harcharan Singh Sandhu, Harcharan Singh Sandhu
(HUF), Tripat Kaur Sandhu, Master Gursharan Singh (Minor) and
Kumari Roopan Sandhu (Minor). It was, thus, pleaded that there
was no completed agreement to sell, GSS being owner of only part
of the property. Harcharan Singh Sandhu (for short „HSS‟) had
passed away and his personal share devolved on two heirs, viz., his
wife and GSS his son as per a Will. The HUF share of late HSS
devolved on GSS and his mother. The knowledge of this fact is
attributed to respondent No.1 and since all the parties were not ad
idem on sale, GSS was willing to return the amount received by
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him with whatever interest the Court determined. This written
statement was filed on 23.10.2004 with advance copy served on
learned counsel for the plaintiff (respondent No.1 herein) on
14.10.2004. Respondent No.1 thereafter filed his replication. The
admission/denial of documents was completed and the issues were
framed on 7.3.2005. The list of witnesses was directed to be filed
vide that order within two (2) weeks with affidavits of witnesses of
the plaintiff (respondent No.1 herein) to be filed within six (6)
weeks thereafter and the suit was listed for cross-examination of
the witnesses of the plaintiff before the Joint Registrar on
19.7.2005.
4. Plaintiff/respondent No.1 filed a list of witnesses naming three
witnesses including respondent No.1, whose cross-examination
was concluded as PW-1 on 27.10.2005 when further time was
sought to produce two remaining witnesses. However, respondent
No.1 filed IA No.6338/2006 under Order 1 Rule 10 of the Code of
Civil Procedure, 1908 (hereinafter referred to as the „said Code‟)
seeking to implead Ms. Tripat Kaur, wife of late HSS and mother
of GSS; Ms. Roopam Kaur Sandhu, daughter of late HSS as also
the HUF as defendants. This application was not opposed and was
allowed on 22.4.2008. On the same date the restraint order dated
8.7.2004 granted in favour of the plaintiff/respondent No.1 qua the
suit property was also made absolute by consent. The matter was
thereafter notified for possible settlement on various dates but no
settlement matured. Written statement was also filed by the three
defendants (appellants herein) on 2.3.2009. On 21.4.2010, the
Joint Registrar recording evidence noted that opportunities had
been taken for the plaintiff to produce the remaining evidence and,
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once again, adjournments have been sought. The last and final
opportunity was granted to the plaintiff/respondent No.1 herein to
produce the evidence subject to costs of `20,000.00. Despite this
no further evidence was produced and the evidence of the plaintiff
was closed on 18.5.2010. The suit was listed for defendant‟s
evidence on 16.8.2010.
5. Respondent No.1 filed IA No.10750/2010 seeking recall of the
order dated 18.5.2010 but this application was dismissed by the
Joint Registrar on 16.8.2010. On the same date DW-1 was partly
cross-examined subject to the right reserved by the
plaintiff/respondent No.1 herein to take recourse against the order
dated 18.5.2010 and 16.8.2010. Thereafter OA No.64/2010 was
filed assailing the order dated 18.5.2010 and 16.8.2010. The
prayer was partly allowed by the learned single Judge on 9.12.2010
in terms whereof subject to the plaintiff/respondent No.1 herein
depositing the costs imposed on 21.4.2010 and further payment of
`5,000.00 to each of the defendants, last and final opportunity was
granted to the plaintiff/respondent No.1 herein to produce all his
witnesses before the Joint Registrar on 18.1.2011, date fixed for
cross-examination of DW-1 with a clear direction that no further
opportunity will be given.
6. It is in the conspectus of the aforesaid facts that IA No.652/2011
was filed under Section 114 read with Section 151 of the said Code
seeking modification of the date for completion of plaintiff‟s
evidence. This was preceded by filing IA No.10268/2010 under
Order 6 Rule 17 read with Section 151 of the said Code. IA
No.652/2011 was disposed of on 18.1.2011 when IA
No.10268/2010 was allowed. The amendment was permitted
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subject to payment of `25,000.00 as costs. It is the latter order
which has been assailed in the present appeal.
7. The learned single Judge in terms of the impugned order found that
in IA No.6338/2006 under Order 1 Rule 10 of the said Code filed
by the plaintiff/respondent No.1 herein while seeking impleadment
of other three defendants(appellants herein) it has pleaded that
GSS/respondent No.2 had executed the agreement-cum-receipt
dated 27.3.2004 as the sole representative of the entire body of
ownership and that the co-ownership had been in the knowledge
throughout. The plaintiff/respondent No.1 had also sought leave of
the Court to make all consequential amendments in the plaint. IA
No.10268/2010 now sought to amend paragraphs 2 & 3 of the
plaint seeking to allege that respondent No.2 herein is one of the
co-owners and authorized representatives of the co-owners and,
thus, the defendants are liable and responsible for performance of
the agreement. Similarly in paragraph 3 of the plaint it is sought to
be alleged that respondent No.2 herein was an authorized
representative of the other defendants. The learned single Judge
concluded that a reading of the averments in the two applications
showed that the plaintiff/respondent No.1 ought to have moved
both the applications together and there was substantial delay in
seeking the proposed amendments but considering the fact that
necessary averments constituting the foundation of the claim of the
plaintiff seeking specific performance had already been made at the
time when the claim against the defendants was within the
prescribed period of limitation, no prejudice would be caused if the
proposed amendment is allowed. Thereafter the learned single
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Judge proceeded to discuss the various judgements on the principle
dealing with such amendments.
8. Learned counsel for the appellants assailed the said judgement
while learned counsel for respondent No.1 sought to defend the
same. On hearing learned counsels for the parties, we find the
impugned order unsustainable.
9. A perusal of the receipt shows that it was executed by
GSS/respondent No.1 alone and it is not executed on behalf of
other co-owners. However, the last sentence of the receipt uses the
words "the sellers" qua payment of all dues up to the date of
agreement along with transfer charges to the builder. It is on this
basis that learned counsel for respondent No.1 stated that the
receipt shows that there were more than one owners and the
needful had to be done by "the sellers". In our considered view, in
a sense the plea is contradictory in itself as, on the one hand,
respondent No.1 sought to implead only GSS/respondent No.2 as
the sole defendant in the original suit while on the other hand now
claims knowledge of the fact that there were more than one owners.
If this is true, the original plaint itself should have impleaded all
the co-owners. This was not done. GSS/respondent No.2 took
specific plea in the written statement of there being co-ownership,
a copy of which was given to learned counsel for the
plaintiff/respondent No.1 on 23.10.2004. Despite this no steps
were taken but, on the other hand, the appellant proceeded to file a
replication denying that GSS/respondent No.2 had ever informed
the plaintiff/respondent No.1 of not being the sole owner. In fact,
it has been categorically stated in paragraph 1 of the reply of
preliminary objections that "it is reiterated that the defendant
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represented to the plaintiff that he is the sole owner of the
property". As stated this is completely contradictory to the plea
subsequently taken before us.
10. The testimony of the plaintiff/respondent No.1 was recorded and
his cross-examination was also concluded on 27.10.2005. It is
thereafter that the plaintiff/respondent No.1 woke up and sought to
implead the other co-owners as parties vide IA No.6338/2006
alleging that it is only when the written statement was filed that the
name of the title holders came to the notice of the
plaintiff/respondent No.1. It was again pleaded that
GSS/respondent No.2 entered into the transaction as a sole
representative of the entire body of ownership and that the other
co-owners had knowledge of the suit. The plaintiff only sought
impleadment of the three defendants without seeking any other
amendment though he craved leave of the Court to make all
consequential changes in the plaint required in that behalf. It was
specifically stated that "there is no amendment being sought except
strictly as a consequence of the above three defendants". The net
effect of this, in our considered view, would be that the reference to
the sole defendant would in turn be now reference to all the
defendants.
11. Thereafter the written statement has been filed by the present
appellants as defendants 2 to 4, pleadings were completed and the
plaintiff‟s evidence as a whole concluded on 18.5.2010.
12. In our considered view, the amendment now sought to be made by
the impugned order seeks to take the case of the
plaintiff/respondent No.1 further by alleging that GSS/respondent
No.2 was acting on behalf of all the other co-owners. This is
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specifically keeping in mind the stand in the original plaint and the
replication that the plaintiff/respondent No.1 did not even have
knowledge of there being any other co-owners much less
GSS/respondent No.2 acting on their behalf.
13. We cannot lose sight of the significance of the legislative
amendment in the provisions of Order 6 Rule 17 of the said Code
brought about by the Act 22 of 2002 w.e.f. 1.7.2002. The
provision now reads as under:
"ORDER VI
PLEADINGS GENERALLY
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."
(emphasis supplied)
14. The addition of the proviso is significant as no application for
amendment is to 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. It is the salutary provision brought in by the legislature in its
wisdom to prevent unnecessary prolongation of the suits on the
pretext of making amendments to the pleadings.
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15. The principles governing amendment to pleadings post-insertion of
the proviso have been discussed in Rajkumar Gurawara (Dead)
Through LRs v. S.K. Sarwagi and Company Private Limited &
Anr., (2008) 14 SCC 364. The facts are slightly apposite as the
plaintiff claimed exclusive mining rights in the suit lands despite
having notice of the plea of the original defendant / State
Government that the land had been leased out to respondent No. 1
company (which was impleaded as defendant No. 2 later). In the
written statements of both the State Government and respondent
No. 1 company, the stand that the suit property was leased out to
respondent No. 1 company upto 1.6.2009 was affirmed and
reiterated. However, the appellant and plaintiff chose to lead
evidence and after commencement of trial during the course of
arguments came up with the idea of amending his plaint under
Order VI Rule 17 of the said Code. It was held that the prayer for
amendment was liable to be rejected. In the present case also,
either respondent No. 1 had knowledge of the fact earlier as is
sought to be pleaded now or at least derived knowledge after filing
of the written statement when a copy was handed over to his
counsel on 14.10.2004, but despite that proceeded to trial after
denying the factum of any such prior knowledge in his replication
consistent with his plea in the plaint. Thus, if an amendment was
to be sought, the cause for the same arose on that date. Instead,
issues were framed on 7.3.2005, affidavit of evidence was filed by
the plaintiff / respondent No. 1 and his cross-examination was also
completed on 27.10.2005. The judgments referred to by the
learned Single Judge interestingly all pertain to a period when the
proviso had not been inserted by the Legislature and, thus, the
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effect of the insertion of the proviso, noticed herein-above, has not
been appreciated by the learned Single Judge.
16. The plaintiff/respondent No.1 conscious of the limitations brought
in by the proviso of Order 6 Rule 17 of the said Code and knowing
the impediments which he would face in seeking an amendment as
it could not be said that despite due diligence the matter could not
have been raised before trial, sought only a limited relief under
Order 1 Rule 10 of the said Code.
17. We may add here that for the first time in the said application, the
plaintiff/respondent No.1 sought to slip in the allegation that
GSS/respondent No.2 was acting on behalf of the other co-owners
while the fact is that he had denied knowledge of any such
ownership at the time of execution of the receipt specifically in the
replication. Thus, all that was sought to be added was the name of
the co-owners which was agreed to by consent and the
consequential amendments in the plaint would, thus, be only that
the word "defendant‟ would read as "defendants". The plea of
such authorization to act on behalf of the co-owners was never
sought to be incorporated in the plaint as there would have been
impediment in the way of the plaintiff/respondent No.1 even on
that date as the recording of evidence had commenced.
18. The conduct of the plaintiff/respondent No.1 is apparent from the
fact that despite taking time he failed to produce his evidence and,
thus, the defendants‟ evidence commenced and even part cross-
examination of GSS/respondent No.2 took place. The
plaintiff/respondent No.1 was thereafter granted last opportunity to
produce his remaining evidence subject to additional costs on the
date fixed before the Joint Registrar for further cross-examination
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of GSS/respondent No.2. It is at that stage that IA No.10268/2010
was filed now to seek amendment of the plaint by seeking to raise a
specific plea of such authorization/representation of
GSS/respondent No.2 on behalf of other co-owners.
19. It can, thus, hardly be said that such a case would not be hit by the
proviso of Order 6 Rule 17 of the said Code as it cannot be said
that despite due diligence the plaintiff/respondent No.1 could not
have pleaded the said fact which had already come to his
knowledge on the copy of the written statement being handed over
to him.
20. Now the conflicting plea raised is that he already knew about the
existence of co-owners as GSS/respondent No.2 sought to act on
behalf of other co-owners and was their authorized representative!
Such an amendment would not have been permissible even when
the application under Order 1 Rule 10 of the said Code was filed as
the recording of evidence had commenced after a lapse of a year
and a half from such fact coming to the notice of
plaintiff/respondent No.1. Thus, what could not have been
permitted on 22.4.2008 when IA No.6338/2006 was allowed
cannot now be permitted by allowing IA No.10268/2010 by the
impugned order dated 18.1.2011.
21. In view of the aforesaid, we may also look to the matter from
another perspective. The plea that respondent No. 1 / plaintiff had
no prior knowledge of co-ownership of the property and this fact
was concealed from him by GSS is destructive of the plea that such
fact was to the knowledge of respondent No. 1 / plaintiff and that
GSS assured respondent No. 1 that he was acting as an authorized
representative of the other co-owners of the flat. Both factual
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situations cannot stand together. It is not a case of an alternative
plea, but of mutually repugnant, contradictory and destructive of
each other. In M/s. Modi Spinning & Weaving Mills Co. Ltd. &
Anr. v. M/s. Ladha Ram & Co., (1976) 4 SCC 320, it was held that
inconsistent pleas may be made in pleadings, but they cannot
displace the plaintiff completely from the admissions made by the
defendants in the written statement as it would irretrievably
prejudice the plaintiff by denying him the opportunity of extracting
the admission from the defendants. Similarly, in Shrimoni
Gurdwara Committee v. Jaswant Singh, (1996) 11 SCC 690, it has
been observed that though mutually inconsistent pleadings in the
written statement can be raised, they cannot be mutually
destructive. In the original written statement, the title of the father
of the defendant was denied, it was, thus, held that by amendment,
the plaintiff could not set up a title in him and plead gift by the
father in favour of the plaintiff. In Sarva Shramik Sangh v. Indian
Oil Corpn. Ltd., (2009) 11 SCC 609 = AIR 2009 SC 2355, while
holding that there is no absolute bar of inconsistent pleas, it was
held that it was impermissible to take inconsistent plea by way of
amendment thereby denying the either side the benefit of
admission contained in the earlier pleadings. Mutually repugnant
and contradictory pleas, destructive of each other were held not to
be permitted to be urged simultaneously. In the present case, the
original case as set up in the plaint and as reiterated in the
replication after the written statement was filed by the original
defendant is that there was no disclosure of co-ownership and GSS
professed title to himself alone. By the amendment, this portion
has been deleted in the amended plaint on record and is sought to
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be substituted by a plea of GSS being one of the co-owners and the
authorized representative of other co-owners and presenting
himself as such to respondent No. 1. The initial endeavour of
adding the appellants as parties post-commencement of trial was
made keeping in mind the fact that since the property was co-
owned, a decree may not be executable, unless all co-owners were
parties. It is in this context that the application was confined to
impleadment of the appellants as parties and not seeking any other
amendment conscious of the limitation arising from the trial having
commenced and the proviso to Order VI Rule 17 of the said Code
being in place.
22. The prayer to make consequential amendments to the plaint by
filing of the application under Order 1 Rule 10 of the said Code
was, in fact, only in terms of Order 1 Rule 10 sub-rule 4 of the said
Code which provides for the amendment to be made in the plaint as
may be necessary as a sequitur to the addition of the parties and
reads as under:
"ORDER I
PARTIES TO SUITS
10. Suit in name of wrong plaintiff--
.... .... .... .... .... .... .... .... .... ....
(4) Where defendant added, plaint to be amended --Where a
defendant is added, the plaint shall, unless the Court
otherwise directs, be amended in such manner as may be
necessary, and amended copies of the summons and of the
plaint shall be served on the new defendant and, if the Court
thinks fit, on the original defendant."
The effect of the aforesaid, thus, was that the expression
„defendant‟ was to read as „defendants‟ and not that a mutually
destructive fact was to be inserted.
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23. We must note in the end that there appears to be a persistent
endeavour of the plaintiff/respondent No.1 to prolong the suit as he
has created a clog on the property and has an injunction in his
favour qua the suit property. Thus, on one pretext or the other the
suit is sought to be prolonged, contradictory pleas taken and
amendments sought in violation of the proviso of Order 6 Rule 17
of the said Code. The legislative amendment by incorporation of
the proviso seeks to prevent such a mischief.
24. We, thus, allow the appeal and set aside the impugned order dated
18.1.2011. The appellant shall also be entitled to costs of
`10,000.00 from respondent No.1.
SANJAY KISHAN KAUL, J.
MARCH 07, 2012 RAJIV SHAKDHER, J.
madan/b'nesh
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