Delhi High Court
Sushoban Luthra & Anr. vs Kiran Luthra & Anr. on 13 September, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1484/2011, CM 23454/2011
Date of Decision: 13.09.2012
SUSHOBAN LUTHRA & ANR. ......Petitioners
Through: Mr.Pankaj Aggarwal, Adv.
for P-1
Mr. Amit Bhagat, Adv. for P2
Versus
KIRAN LUTHRA & ANR. ......Respondents
Through: Mr. Kirti Uppal, Sr. Adv.
with Mr. Chirag Bhatia, Adv.
for R1.
Mr. Shekhar Kumar, Adv. for
R-2.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
1. This petition under Article 227 of the constitution impugns
order dated 17.09.2011 of Senior Civil Judge, West whereby
application under Order 6 Rule 17 CPC filed by respondent No. 1
Mrs. Kiran Luthra, who was the plaintiff in the suit, was allowed.
2. The plaintiff had filed a suit for declaration and permanent
injunction against the petitioners and other defendants. The
respondent/plaintiff filed application under Order 6 Rule 17 CPC for
seeking amendment in the plaint, which was allowed vide the
impugned order, which is assailed by the petitioner/defendant.
3. I have heard the learned counsel for the parties and perused
the records.
4. As is noted above, the suit was filed for declaration and
permanent injunction. It was to the effect that the gift deed and the
Will as executed by defendant No. 1 Maj. General S.N. Luthra in
favour of defendant No. 2 and 3 be declared null and void. Vide the
instant amendment application, it was averred that the
plaintiff/respondent had learnt that during the pendency of the suit,
defendant No. 2had executed the sale deed on 27.07.2006 in respect
of the suit property in favour of defendant No. 3. Based on this
averment, prayer was made for cancellation of the said sale deed.
Consequently, amendments have been sought in the relevant
paragraphs as also in the title of the plaint.
5. The main objection that was raised by the petitioners was that
the plaintiff/respondent nowhere stated as to the date of knowledge
of the said sale deed executed by defendant No. 2 in favour of
defendant No. 3, and that the amendment sought was highly belated
and further that a new case was sought to be set up by the
plaintiff/respondent by introducing new facts. On the contrary, it is
submitted by learned counsel for the respondent/plaintiff that the
suit was filed on 13.05.2005, and the sale deed was executed on 27th
July, 2006 and that since it was not in existence at the time of filing
of the suit, the plaintiff/respondent could not have pleaded in this
regard at the time of filing of the plaint.
6. The learned Senior Civil Judge vide the impugned order
allowed the application reasoning that the cause of action for
challenging the sale deed, if any, arose only after the sale deed came
into existence on 27.07.2006, and that being subsequent to the filing
of the suit, the sought amendment is relevant and necessary for the
just decision of the case and also to avoid multiplicity of litigation
between the parties.
7. I do not find any infirmity or illegality in the impugned order.
8. A similar issue arose before this Court in the case of Mohd.
Ahmed Vs. Harish Kumar Aggarwal & Ors., CM(M) 533/2010,
decided on 16.07.2012 wherein the plaintiff was objecting to the
execution of agreement to sell by his father to the defendant and had
filed a suit for injunction and on coming to know of the execution of
the sale deed during the pendency of the suit by his father, he sought
amendments seeking a declaration of sale deed to be null and void.
Referring to various decisions of the Supreme Court, this Court in
paragraphs 16 and 17 observed as under:
"16. It is well settled by catena of decisions
that in the relief of injunction an application
for amendment of plaint is really the
discretion of the Court. An amendment of
plaint should not be refused on technical
grounds. In its discretion, the Court can allow
an application for amendment of plaint even
where relief sought by amendment is barred
by limitation. Exercise of discretion of the
Court in allowing or rejecting an amendment
would depend upon the facts and
circumstances of the case and such discretion
has to be exercised on judicial evaluation. It
is also trite that an amendment, which
specially serves to the cause of justice and
avoidance of multiplicity of litigation, should
be allowed.
17. Having seen the averments in the
original plaint and the amendments sought, it
would be seen that the basic structure of the
suit is not altered by the proposed
amendments. What is sought to be changed is
the nature of relief sought for by the plaintiff.
There cannot be any denial that the plaintiff
would be entitled to file independent suit in
respect of the sale deeds. If it was so, then
why the same relief could not be permitted to
be incorporated in the pending suit. In the
facts and circumstances of the present case,
allowing amendment would certainly curtail
the multiplicity of the legal proceedings.
Since the petitioner knew that the plaintiff
was objecting to the execution of agreement
to sell by his father with him and was also
seeking restraint of the sale deed in his
favour, the proposed amendment was, in any
way, not going to prejudice or surprise him,
in any manner."
9. The decision in the case of Mohd. Ahmed (supra) has full
application to the facts of the instant case. The sought amendment
by any means cannot be said to be causing any prejudice to the
petitioners/defendants and rather, seem to be essential for the just
and proper adjudication of dispute between the parties and also to
avoid multiplicity of litigation between them.
10. The petition has no merit and is hereby dismissed.
M.L. MEHTA, J.
SEPTEMBER 13, 2012
awanish
