Sh Ashok Kumar Singhal vs Smt Bimla Devi & Ors
2013 Latest Caselaw 5474 Del

        THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 27.11.2013

+       FAO(OS) 545/2013
        SH ASHOK KUMAR SINGHAL                                 ..... Appellant

                      Versus


        SMT BIMLA DEVI & ORS                                   ..... Respondents

Advocates who appeared in this case:
For the Appellant :Mr A.K. Singla, Sr. Adv. with Mr Rama Shanker,
                   Mr Shivom Garg, Mrs Kamlesh.
For the Respondents: None

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE VIBHU BAKHRU
                                   JUDGMENT

BADAR DURREZ AHMED, J (ORAL) CM N o.18795/2013 (exemption)

Exemption is allowed, subject to all just exceptions.

FAO(OS) 545/2013 & CM Nos. 18793/2013 & 18794/2013 (stay)

1. This appeal has been filed against the order dated 09.10.2013 passed by a learned single Judge in IA No.21606/2012 which was an application filed on behalf of the appellant/plaintiff under Order VI Rule 17 Civil Procedure Code (CPC) for amendment of the plaint in CS (OS) No.1778/2007. The learned single Judge has rejected the prayer for amendment of the plaint.

2. Earlier, an order was passed by a Division Bench of this court in FAO (OS) 450/2010 and CM No.11862/2010(stay). The said order reads as under:-

"On hearing learned counsel for parties, it is obvious to us that the counsel for the appellant did not urge before the learned Single Judge what he seeks to urge before us. In terms of the impugned order, property No.E-45-46, Arya Samaj Road, Uttam Nagar, New Delhi, had been directed to be deleted from the list of properties. It is the submission of the learned counsel for the appellant that though they have lost the battle till the Supreme Court, the same was qua only a part of the property measuring 75 sq. yds. while the total property measuring 400 sq. yds.. He thus submits that the suit is liable to continue qua 325 sq. yds. We are thus not inclined to entertain this appeal but if there are averments in the pleadings qua the aforesaid issue, it is open to the appellant to file a fresh application before the learned Single Judge for necessary relief as he states that he has now brought the necessary documents on record. Dismissed with aforesaid liberty."

3. The learned single Judge rightly observed that the application under Order VI Rule 17 CPC appears to have been filed consequent upon the said order dated 20.04.2012 by the Division Bench. From the aforesaid extract, it can be noticed that the learned counsel for the appellant/plaintiff, in those proceedings before the Division Bench, had submitted that although they had lost the battle till the Supreme Court, in respect of property No.E-45- 46, Arya Samaj Road, Uttam Nagar, New Delhi, the suit was liable to continue with regard to property measuring 325 sq. yds. in as much as the total area of the property was measuring 400 sq. yds. It is further evident

from the above extract that the Division Bench was not inclined to entertain the said appeal. However, if there were averments in the plaint which related specifically to the property measuring 325 Sq. Yards, it would be open to the appellant to file a fresh application before the learned single Judge for necessary relief. Furthermore, that liberty was granted because of the submissions made by the learned counsel for the appellant that he had brought the necessary documents on record.

4. The learned single Judge considered the application from this standpoint as also the liberty given by the Division Bench and noted that the Division Bench had permitted the plaintiff/appellant to apply before the learned single Judge for direction, if there were any averments in the plaint which referred to the claim of the plaintiff/appellant which specifically related to 325 Sq. Yards of property No.E-45-46, Arya Samaj Road, Uttam Nagar, New Delhi. In this connection, the learned single Judge noted that there was no specific averment in the plaint that plaintiff/appellant was laying claim to an extent of 325 sq. yds of property No.E-45-46, Arya Samaj Road, Uttam Nagar, New Delhi. The learned single Judge noted that in the absence of any such averment it was not permissible for the court to allow the amendment in the suit and that too after five years of the filing of the plaint.

5. With regard to the second aspect, all the documents being on record, the learned single Judge also noted that there was no document on record to substantiate the claim made by the plaintiff/appellant.

6. The learned single Judge has also rightly observed that with regard to the other averments sought to be incorporated in the plaint, there was nothing stated in the application as to when the plaintiff came to know the facts which are now sought to be incorporated through the amendment application. The suit is of 2009 and the amendment is being sought after five years. The trial is also in progress and unless and until the party seeking the amendment is able to satisfy the court that in spite of due diligence, the party could not have raised the matter before the commencement of the trial, no amendment is to be allowed. This is specifically provided in the proviso to Order VI Rule 17 CPC which was amended on 01.07.2002. The Order VI Rule 17 CPC after its amendment, reads as under:-

"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 questions 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."

7. The proviso makes it clear that no application for amendment is to be allowed unless the court comes to the conclusion that the party could not

raise the issue of amendment before the commencement of the trial. No such circumstance has been set up by the plaintiff/appellant in the application for amendment to indicate that in spite of due diligence, the plaintiff/appellant could not have raised the matter before the commencement of the trial. Therefore, the view taken by the learned single Judge, that the amendments cannot be allowed at this stage, is entirely correct. There is no merit in the application.

8. The appeal alongwith pending applications are dismissed.

BADAR DURREZ AHMED, J

VIBHU BAKHRU, J NOVEMBER 27, 2013 rkd