Delhi High Court
Bal Bhagwan vs Balbir Singh & Ors on 28 March, 2012
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:28.03.2012
+ CM(M) 1269/2010 & CM No. 18125/2010
BAL BHAGWAN ..... Petitioner
Through Mr. Manish Vats, Adv.
versus
BALBIR SINGH & ORS ..... Respondents
Through Mr. J.K. Jain, Adv.
CM(M) 40/2009 & CM Nos.727/2009 & 8222/2009
SHRI BALBIR SINGH & ORS ..... Petitioner
Through Mr. J.K. Jain, Adv.
versus
SHRI BAL BHAGWAN @ NIRANKAR
CHELA ONKARANAND ..... Respondent
Through Mr. Manish Vats, Adv.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1. There are two orders which have been impugned before this
Court. The petitioner Balbir Singh is aggrieved by the order dated
18.10.2008 whereby the application filed by him under Order 6 Rule 17
of the Code of Civil Procedure (hereinafter referred to as the 'Code')
seeking an amendment in his plaint had been declined. The second order
impugned before this Court is the order dated 03.03.2010. The petitioner
is the defendant in the trial Court namely Bal Bhagwan; he is aggrieved
by the finding returned by the trial Court allowing the impleadment of
legal representatives of deceased Phool Singh on the application filed by
the plaintiff under Order XXII Rule 3 of the Code.
2. Both these petitions shall be disposed of by this common order.
3. Record shows that a suit for permanent injunction had been filed
by the four plaintiffs; the averments in paras 1 & 2 of the plaint are to
the effect that Shamlat Deh of Village Khampur Raya is the owner of
the disputed land comprised in khasra No. 1075/803/50 min measuring 4
bighas 13 biswas situated in the revenue estate of village Khampur
Raya, New Delhi. Further contention is that the plaintiffs are in
possession of the said land and managing it. The plaint nowhere averred
that the plaintiffs are in possession of the suit land as owners; contention
is that they are managing the said land as co-sharer of Shamlat Deh.
Prayer for injunction had been sought by the plaintiffs; contention was
that the defendant was illegally and unauthorizedly interfering with the
possession of the suit land; plaint was filed on 18.05.1999.
4. Written statement was filed disputing these contentions. It was
stated that the possession of the suit land by the defendant is legal; they
had become owners by way of adverse possession.
5. In the course of these proceedings, an application under Order 6
Rule 17 of the Code was sought to be filed. This application is dated
11.05.2007; averments of the plaintiffs in this application are that they
are the recorded owners of the suit property; it is a Shamlat Deh land; in
para 9 it has been stated that sometime in the end of July, 1990, the
defendant in the absence of the plaintiffs had fixed an iron gate in the
suit property which was inspite of the order of the status quo;
application was filed for contempt. In para 12 it has been averred that to
cut short the delay, the plaintiffs now want to amend the suit in order to
incorporate the relief of possession and mesne profits; during the
pendency of the suit, the defendants have now trespassed into the suit
land and raised an illegal and unauthorized construction; in para 11-A, it
has been averred that this trespass has taken place sometime in the year
2001.
6. Needless to state that this application had been contested.
7. The first impugned order dated 18.10.2008 had declined the
prayer made for amendment and rightly so. The application for
amendment can be allowed under Order 6 Rule 17 of the Code where
the amendments sought to be incorporated would be necessary to
resolve the controversy in dispute between the parties; delay and latches
also have to be kept in mind.
8. The averments made in the present application show that it was
sometime in the year 2001 that the defendant had trespassed into the
land of the plaintiffs; as noted supra, this application was filed in May,
2007. There is no explanation for this inordinate delay in preferring this
application. Delay and latches may not always be a consideration if the
merits of the averments in the application would otherwise show that the
amendment would in fact reduce the multiplicity of litigation and the
amendment would throw light upon the controversy in issue. Rule of
amendment is that it should be disallowed if it is otherwise going to
change the nature of the suit. In this background, the averments made in
the application have to be considered.
9. The plaintiffs by way of this application now seek to aver that
they are the recorded owners of the suit property; this was not the
averment made in the first plaint which was a suit for permanent
injunction. In that suit, they had stated that the owner of the land is
Shamlat Deh and the plaintiffs are in possession of the suit land in a
managerial capacity. The nature of the suit will accordingly change if
this application is allowed. The delay in filing the present application i.e.
to convert the suit for permanent injunction into a suit for possession
and mesne profits, when admittedly the defendant had trespassed into
the land in the year 2001 and the application seeking amendment for
conversion of suit from permanent injunction to a suit for possession on
the ground that the plaintiffs are now entitled to possession seven years
after the alleged trespass is a delay which is unjustified and unexplained.
The nature of the suit would also change. The impugned order
disallowing the application for amendment in this background thus
suffers from no infirmity.
10. Reliance by the learned counsel for the petitioner upon 47 (1992)
DLT 246 Harish Kumar Chaudhary Vs. Vimal Wadhawan & Another
and AIR 2004 Supreme Court 4102 Pankaja and another Vs. Yellappa
(D) by L.Rs. and others is misplaced; there is no doubt that the Court
can allow an amendment and the law of amendment should also be
liberally construed and where it would advance substantial justice,
procedural impediments should not come in the way. This is however
not one such case. The impugned order dated 18.10.2008 suffers from
no infirmity. CM(M) No. 40/2009 is dismissed.
11. The second petition is the grievance made by the defendant
wherein the application filed by the plaintiffs seeking impleadment of
legal representatives of the deceased Phool Singh had been allowed.
Learned counsel for the defendant is aggrieved by this order; his
contention is that the suit for permanent injunction was a suit in
personam; averments made in the plaint substantiate this submission as
para 2 of the plaint clearly states that the suit has been filed by the
plaintiffs who were managing the properties of Shamlat Dey which are
owned by Shamlat Dey. It is thus clear that the right to sue of plaintiff
No. 2 was a right only in his individual and personal capacity. The
impugned order allowing the legal representatives of the deceased Phool
Singh to be brought on record thus suffers from an infirmity. Reliance
by learned counsel for the respondent upon the judgment of 1985 RLR
544 Munni Devi Vs. Mun. Corporation is misplaced; this was a case
where a suit for injunction had been filed by the plaintiff against the
MCD for grant of license to run its business; after the death of original
plaintiff, the admitted legal representatives of the deceased plaintiff had
a right to continue with this litigation as the original suit had sought a
restraint against the MCD from removing or lifting of water trolleys of
the plaintiff from the site which right the plaintiff had inherited after the
death of the original plaintiff and as such it was in these circumstances,
the Court had noted that the right to sue survives. This is not so in the
instant case. The plaint clearly discloses that the plaintiffs were
managing the affairs of the Shamlat Dey. This was a personal action of
the plaintiffs. Impugned order dated 03.03.2010 is accordingly set aside.
12. Both the petitions are disposed of in the above terms.
INDERMEET KAUR, J
MARCH 28, 2012
A
