Delhi High Court
Shehnaz Begum vs Abdul Khaliq on 1 February, 2013
Author: Pratibha Rani
$~42
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 1st February, 2013
+ CM(M) 134/2013
SHEHNAZ BEGUM
..... Petitioner
Through: Mr.Himal Akhtar, Advocate.
versus
ABDUL KHALIQ
..... Respondent
Through :
CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI
%
PRATIBHA RANI, J. (ORAL)
CM.No.1865/2013 (Exemption)
Allowed, subject to all just exceptions.
Application stands disposed of.
CM (M).No.134/2013 & CM.1864/2013
1. This petition under Article 227 of the Constitution of India has been
directed against the order dated 13th December, 2012, whereby the learned
Civil Judge allowed the application under Order VI Rule 17 CPC filed by
the respondent (plaintiff in Suit No.885/2011) to amend the plaint.
2. In brief, the facts of the case, as incorporated in para 2 of the
impugned order reveal that a suit for declaration and cancellation of eviction
orders dated 13th February, 2009, 10th July, 2009 and the order dated 7th
May, 2008, passed by the Competent Authority (Slum), Delhi was filed,
inter alia, praying for relief of permanent injunction, restraining the
defendant from taking possession of the suit property. However, the relief of
injunction became infructuous as in the execution proceedings the
possession had already been taken by the defendant.
3. Thereafter, the plaintiff sought amendment, praying for the recovery
of possession and also restraining the defendant from creating third party
interest in the suit property. Apart from that, amendment was also sought for
claiming additional relief of declaration, seeking cancellation of Sale Deed
dated 17th April, 1986. In the amendment application, it was averred that
while challenging the eviction order on various grounds, the ground on
which the Sale Deed was claimed to be illegal and void, have already been
mentioned in the plaint. It was also averred that the amendment has been
necessitated to avoid multiplicity of the proceedings for proper adjudication
of the case and that the proposed amendment does not change the nature of
the suit.
4. The prayer for amendment of plaint was opposed by the defendant,
specifically pointing out that the relief, seeking declaration in respect of the
Sale Deed, executed in the year 1986, as null and void and barred by
limitation, the plaintiff was not diligent enough to claim this relief at the
time of filing the suit.
5. After considering the rival contentions, learned Civil Judge exercised
the discretionary power in favour of the plaintiff, thereby allowing the
amendment sought by the plaintiff for the reasons incorporated in para 5 of
the impugned order, which is extracted as under:-
"5. Arguments heard and on perusal of the records of the case in the light
of rival submissions of both the parties and relevant law, this court is of
considered opinion that the present suit is still in its initial stage, as issues
have not been framed till date and since the ground on which the sale deed
is challenged by the plaintiff is within the knowledge of the defendant at
the time when the present suit is filed, therefore, even if the amendment is
allowed no prejudice will be caused to the defendant which will not be
compensated in terms of cost and since proposed amendment does not
change the nature of the suit, as the plaintiff is seeking setting aside of
eviction orders on the ground that the defendant had no right, title or
interest in suit property as the sale deed is null and void, therefore the
proposed amendment is necessary in order to prevent multiplicity of
litigations between the parties and for proper adjudication of case and the
fact whether the relief as sought is time barred or not, is not a ground for
disallowing proposed amendment as a time barred claim can be
incorporated by way of amendment, if the same is necessary to prevent
multiplicity of litigation between the parties and in order to adjudicate real
controversy between the parties, therefore the proposed relief of
declaration and cancellation of sale deed is allowed and as to other reliefs
of permanent injunction and recovery of possession, the same is necessary
in order to prevent multiplicity of litigation between the parties and at the
stage of adjudication of application under order 6 Rule 17, the court is not
required to go into the question of truth or falsity of proposed
amendment".
6. The main grievance of the learned counsel for the petitioner before
this Court is that the learned Trial Court has committed grave illegality in
allowing amendment in respect of the prayer in respect of Sale Deed dated
17th April, 1986, which is barred by time. It has been submitted that since a
valuable right had accrued to the petitioner, such type of amendment could
not have been allowed by the Court, hence the impugned order may be set
aside.
7. The Apex Court in Pankaja and Anr. Vs. Yellappa (D) by Lrs. and
Ors.- AIR 2004 Supreme Court 4102 , while dealing with the issue as to
whether amendment should be allowed where a relief is barred by limitation,
observed : -
"14. The law in this regard is also quite clear and consistent that
there is no absolute rule that in every case where a relief is barred
because of limitation an amendment should not be allowed.
Discretion in such cases depends on the facts and circumstances of
the case. The jurisdiction to allow or not allow an amendment
being discretionary the same will have to be exercised in a -
judicious evaluation of the facts and circumstances in which the
amendment is sought. If the granting of an amendment really
subserves the ultimate cause of justice and avoids further litigation
the same should be allowed. There can be no straight jacket
formula for allowing or disallowing an amendment of pleadings.
Each case depends on the factual background of that case."
8. The purport of Order VI Rule 17 CPC is that it has been moved bona
fide, the trial is at the initial stage, the controversy in dispute will be
enlightened by the proposed amendment without causing serious prejudice
to the non-applicant, the same is also necessary to avoid multiplicity of legal
proceedings. In such circumstances, the Court may exercise its discretion by
allowing such amendment. In the instant case, the learned trial court has
taken note of the fact that the proposed amendment is necessary to prevent
multiplicity of the litigation between the parties and also to adjudicate the
real controversy between the parties.
9. Proceeding under Article 227 of The Constitution of India is an
extraordinary discretionary constitutional remedy to advance justice and not
to thwart it. In exercise of power under Article 227 of The Constitution of
India, this Court will interfere only when error of law is apparent on the face
of record which has resulted in gross injustice.
10. I find no illegality or perversity in the impugned order, calling any
interference by this Court.
11. The petition has no merit and is dismissed.
PRATIBHA RANI, J
FEBRUARY 01, 2013
'aka'
