Prit Pal Singh Bhasin vs S. Ranbir Singh & Others
2014 Latest Caselaw 3889 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Pronounced on: 25th August, 2014

+    I.A.No.12412/2011 (Order VI Rule 17 CPC) in CS(OS) 2086/2008

     PRIT PAL SINGH BHASIN                                        ..... Plaintiff
                   Through:                 Mr. Praveen Kumar, Adv.

                            versus

     S. RANBIR SINGH & OTHERS               ..... Defendant
                   Through: Mr. Subhash Chand, Adv. For D-1.

     CORAM:
     HON'BLE MR. JUSTICE G.P. MITTAL

1.

This is an application under Order VI Rule 17 read with Section 151

of the Code of Civil Procedure, 1908 (CPC) seeking amendment of the

plaint.

2. A suit for possession, permanent injunction and grant of mesne profits

was filed by the Plaintiff alleging that property bearing municipal

no.XIV/11186-A, Bagh Rao ji, known as Doriwalan, Delhi measuring

135 sq.yds was owned by Late Sardar Darshan Singh Bhasin. On

02.04.2000, Late Sardar Darshan Singh Bhasin died intestate in USA

leaving behind his widow i.e. Defendant no.3 and children, i.e. the

Plaintiff and Defendants no.5 to 7. Another small portion measuring

about 25 sq. yds adjacent to the property owned by the Plaintiff and

Defendants No.3 to 7, bearing municipal no.XIV/11187-A, Bagh

Raoji, Delhi, a lease hold portion was purchased and acquired by

Defendant no.3 in or around 1985 and this portion also got

amalgamated and merged into the house property of Late Sardar

Darshan Singh Bhasin. It is the case of the Plaintiff that sometime in

the year 1987, Late Sardar Darshan Singh Bhasin was granted Visa for

USA and at the instance/suggestions/guidance of one Raghubir Singh

Kohli, he executed a General Power of Attorney(GPA)/Special Power

of Attorney(SPA) in favour of the said Raghubir Singh Kohli to look

after, manage, rent out or sell the property if need be in his absence.

3. According to the Plaintiff, Late Sardar Darshan Singh Bhasin, in

addition to executing the said GPA also permitted Defendants no.1

and 2 to occupy the ground floor shown as 'red' in the site plan as a

licensee for storage of tyres, etc. as they (Defendants no.1 and 2) were

dealing in tyres. According to the Plaintiff, said Power of Attorney

was cancelled by Late Sardar Darshan Singh Bhasin during his visit to

India on 05.04.1999 and he also filed a registered cancellation deed

and, therefore, the Defendants had become liable to restore the

possession of the said property and since they failed to vacate the

same, they are liable to pay damages, etc.

4. In the application for amendment, it is stated that at the time of Late

Sardar Darshan Singh Bhasin's visit to India on 04.03.1999

(inadvertently earlier mentioned as 05.04.1999), he cancelled the

Power of Attorney as stated above as also a Will dated 15.07.1987.

Consequently, the Plaintiff wants to amend para 10 of the plaint. The

application is opposed by Defendant no.1 on the ground, inter alia,

that the story set up in the plaint as also in the application is false and

concocted and hence, the application is liable to be dismissed. It is

stated that the Plaintiff has no right, title or interest in the suit property

which was sold by Late Sardar Darshan Singh Bhasin to Defendant

no.1 and his brothers in the year 1987 for valuable sale consideration.

It is stated that no notice of execution of the cancellation deeds was

given by the Plaintiff as Late Sardar Darshan Singh Bhasin to

Defendant no.1 or his brothers.

5. The learned counsel for the Defendant has urged that the amendment

sought if allowed will change the nature of the suit and will also take

away the valuable right of the Defendant as the relief claimed with

regard to the cancellation of the Will is barred by limitation. On the

other hand, the learned counsel for the Plaintiff urges that in the

written statement itself, the Defendant has taken a plea that the Will

dated 15.07.1987 was also executed by Late Sardar Darshan Singh

Bhasin and thus, there is no question of setting up a new case. It is

urged that no prejudice is going to be caused to the Defendant if the

amendment is allowed.

6. It is well settled that unless there is serious injustice or irreparable loss

to the opposite side, the Court should adopt a liberal approach in

allowing amendment of a pleading, particularly when the trial of the

suit has not commenced. There is no gainsaying that truthfulness or

falsity of the averments made in the application for amendment of

pleadings is not to be gone into at the stage of deciding the application

for amendment of pleadings. If there is no prejudice and the

amendment sought is necessary for determining the real controversy

between the parties, the amendment must be allowed. In para C of the

counterclaim, Defendant no.1 himself has stated that the cancellation

deeds dated 04.03.1999 executed by Late Sardar Darshan Singh

Bhasin qua the Special Power of Attorney/General Power of Attorney

and the Will are illegal and void ab initio and has no force in the eyes

of law. As such, the present counter claim has been filed by

Defendant no.1 to declare that the cancellation deed dated 04.03.1999

in respect of Special Power of Attorney/General Power of Attorney

and Will etc. dated 15.07.1987 are void ab initio and that they have no

value in the eyes of law and no binding force.

7. In the instant suit, the Plaintiff is not seeking the cancellation of the

Will. There is no question of the relief on the basis of the averments

made in the plaint being barred by limitation as the Plaintiff seeks

possession on the plea that the said documents having been cancelled

and the Defendant's licence been revoked, Defendants no.1 and 2 have

become unauthorised occupants of the property.

8. To my mind, the amendment sought is necessary to determine the real

controversy between the parties and merits of the claim made by the

Plaintiff are not to be judged at this stage. Of course, by amendment

of the plaint, there will be some inconvenience to Defendant no.1, who

is contesting the suit. It may also result in some expenditure by the

Defendant. The same can be compensated by cost.

9. The amendment sought is, therefore, allowed, subject to payment of

cost of Rs.10,000/, which shall be paid by the Plaintiff to Defendant

no.1/his counsel within four weeks. Subject to payment of cost, the

amended plaint shall be taken on record and Defendant no.1 shall be at

liberty to file written statement to the amendment plaint within four

weeks of the receipt of the cost.

10. List before the Joint Registrar for completion of pleadings on 26th

November, 2014.

(G.P. MITTAL) JUDGE AUGUST 25, 2014/pst