Delhi High Court
Bakhtawar Singh S/O Sh. Sarmukh ... vs Bakhtawar Singh S/O Late Hazoor ... on 4 December, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 1068/2014
% 4th December , 2014
BAKHTAWAR SINGH
S/O SH. SARMUKH SINGH ......Petitioner
Through: Mr. J.S.Mehra, Advocate.
VERSUS
BAKHTAWAR SINGH
S/O LATE HAZOOR SINGH ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This petition under Article 227 of the Constitution of India impugns the
order of the trial court dated 22.9.2014 by which the trial court has dismissed
the application for amendment filed by the petitioner/plaintiff under Order VI
Rule 17 of the Code of Civil Procedure, 1908 (CPC) on the ground that if the
amendment as prayed for is allowed, it will amount to setting up by the
petitioner/plaintiff of a totally new case and which will in fact be contradictory
to the stand as set up in the existing pleadings.
2. The subject suit was a suit for declaration, mandatory and permanent
injunction filed by the petitioner/plaintiff claiming that respondent/ defendant
CMM 1068/2014 Page 1 of 4
was wrongly representing himself as son of Sh. Sarmukh Singh but the
defendant is actually the son of Sh.Hazoor Singh and the petitioner/plaintiff is
the real Bakhtawar Singh son of Sh. Sarmukh Singh. The
respondent/defendant was pleaded to be in illegal possession of the suit land
and consequently necessary reliefs were claimed as per the plaint on the cause
of action/ basis that the respondent /defendant had absolutely nothing to do
with the suit land inasmuch as the respondent/defendant had illegally occupied
the suit land. Appropriate reliefs were claimed as per the plaint for mandatory
injunction to restitute status quo aute with respect to the suit land ie of joint
possession of the plaintiff ie effectively plaintiffs seeking possession.
3. Trial court in the present case notes that if the amendment is allowed, a
case which is in total conflict with the earlier case would be set up because by
allowing amendment, the same would amount to setting up a totally new case
because in the original plaint respondent/defendant was pleaded to have absolutely
no right in the suit land but by the amended plaint it was now sought to be putforth
that the respondent/defendant is not an illegal occupant of the suit land but
respondent/defendant was inducted as a lessee by the petitioner/plaintiff. Also,
the trial court notes that a preliminary issue in the suit was framed way back in
2011 and decision on which is delayed for one reason or the other including the
subject application being filed. The suit was stated to be identified as an old
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suit inasmuch as it was more than 5 years old. The relevant observations of the
trial court for dismissing the amendment application are contained in para 15 of
the impugned order dated 22.9.2014 and which para reads as under:-
"15. Keeping the above discussed legal proposition in mind, if we
examine the facts of the case, it would be clear that plaintiff in the
present application is seeking amendment of plaint to incorporate the
relief of declaration, recovery of lease amount/mesne profits and also the
relief of possession subject to the outcome of CM(main)/revision
pending before Hon'ble High Court. Evidently, the prayer for
amendment to incorporate relief of possession and for damages/mesne
profits has already been dismissed vide order dated 02.11.2012 of Ld.
Predecessor of this court and thereafter, review application of plaintiff
has also been dismissed vide order dated 22.07.2013. These orders have
been challenged by way of revision before Hon'ble High Court. Now
the same relief alongwith relief of declaration and recovery of lease
amount has been sought to be incorporated. Such relief could have been
asked even earlier but have not been sought for reasons best known to
the plaintiff. Though the counsel for the plaintiff submitted that such
amendment are necessary but obvious question arises if that was the
situation why such facts and prayer were not sought earlier now even the
prayer as sought to be incorporated by way of amendment are barred by
law of limitation. Moreover, it would be clear from the averrments of the
plaint that it is stated that defendant had grabbed the land of the plaintiff
fraudulently whereas in the earlier application for amendment also it was
alleged that defendant is in unauthorized and illegal possession of the
land but now in the present application for amendment, plaintiff for the
first time as come up with the version that plaintiff had given the land to
the defendant who happens to be his cousin for cultivating and defendant
used to pay lease charges earlier, which he subsequently stopped paying
and started claiming himself to be owner. Evidently, versions taken at
different stage are different. This court is very much conscious of the
fact that court is not required to go into merits and veracity of the facts
sought to be incorporated by way of amendment but at the same time it
is also required to be examine that whether such the proposed
amendment are bonafide and necessary for proper adjudication of the
matter. Keeping the yardstick as propounded by Apex Court in
judgment of "Ravajeetu Builders and Developers's case" keeping
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those legal principles in mind I find that the proposed amendments are
only lacking the necessary and specific particulars but are contradictory
to the earlier pleadings of the plaintiff and in that sense do not appear to
be bonafide. Without commenting as to the legal maintainability of those
pleas/prayers sought in the proposed amendments, I find that proposed
amendments are in fact not necessary for proper adjudication of the
matter." (underlining added)
4. No doubt courts are liberal in allowing amendments, however it is settled
law that amendments which set up a totally new case cannot be permitted. In
the present case, in fact besides the aspect that a totally new case is now
pleaded through the amendment, the amendment application filed is also
malafide because of the reason of a total change in the nature of the case.
5. In view of the above, I do not find any reason to interfere with the
impugned order in exercise of the extraordinary and discretionary jurisdiction
under Article 227 of the Constitution of India.
6. Dismissed.
DECEMBER 04, 2014 VALMIKI J. MEHTA, J.
ib
