Smt Sumitra Parashar & Anr vs Smt Raj Rani & Anr
2014 Latest Caselaw 2894 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                           Date of decision: 2nd July, 2014
+             FAO(OS) 178/2014 & CM No.6231/2014 (for stay)
    SMT SUMITRA PARASHAR & ANR                    ..... Appellants
                 Through: Ms. Amrit Kaur Oberai with Mr.
                            Aman Singh, Advs.
                         Versus
    SMT RAJ RANI & ANR                      ..... Respondents
                 Through: Mr. Ravi Gupta, Sr. Adv. with Mr.
                            Lalit Gupta, Mr. Ajay Gulti, Ms.
                            Garima Goel & Mr. Saharsh Bhalla,
                            Advs.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This intra-court appeal impugns the order dated 24th January, 2014 of the

learned Single Judge of this Court (exercising ordinary original civil

jurisdiction in CS(OS) No.2154/2010 filed by the respondents) of allowing IA

No.8419/2013 of the respondents / plaintiffs for amendment of the plaint.

Notice of the appeal was issued and vide ad interim order dated 4th April, 2014

which continues to be in force, the operation of the impugned order was stayed.

We have heard the counsel for the appellants / defendants and the senior

counsel for the respondents / plaintiffs.

2. The two respondents / plaintiffs instituted the suit from which this appeal

arises, (i) for recovery of possession of property No.53, Sector-12, Block-B,

Dwarka, New Delhi ad measuring 334 sq. mtrs. together with mesne profits /

damages for use and occupation from the date of institution of the suit till the

date when the possession is handed over; (ii) for permanent injunction

restraining the two defendants / appellants from raising any further construction

on the suit property and/or selling, alienating, encumbering, disposing of or

otherwise dealing with the said property; (iii) for permanent injunction

restraining the appellants / defendants from misusing the original title

documents of the said property; and, (iv) for mandatory injunction directing the

appellants / defendants to deliver original documents of the property, pleading,

(a) that the respondent/plaintiff No.2 Sh. Bhagwan Sharma and the

appellant/defendant No.2 Sh. Ramphal Parasar are brothers, being the

sons of Sh. Ramdhan Sharma; the respondent/plaintiff No.1 and the

appellant/defendant No.1 are the wives of respondent/plaintiff No.2 and

appellant/defendant No.2 respectively;

(b) that the subject property was allotted by Delhi Development

Authority (DDA) to one Sh. Ishwar Singh;

(c) that the appellant/defendant No.2 was working in the Land &

Building Department of Delhi Government and by virtue of his said

employment, was aware of the allotment in favour of Sh. Ishwar Singh;

(d) that the appellant/defendant No.2 informed the

respondents/plaintiffs of the desire of the said Sh. Ishwar Singh to sell

the said property;

(e) that the respondents/plaintiffs approached the said Sh. Ishwar

Singh for purchasing the property and after paying the entire sale

consideration thereof, got the documents with respect thereto executed in

their favour from Sh. Ishwar Singh on 25th January, 1994;

(f) that the appellant/defendant No.2 offered to get the property

converted into freehold and the respondents/plaintiffs for the said

purpose handed over all the original documents of the property to the

appellant/defendant No.2;

(g) that the appellant/defendant No.2 however informed the

respondents/plaintiffs that the said documents had been misplaced by

him and the respondents/plaintiffs lodged FIR dated 20 th August, 2001

thereof;

(h) that in September, 2009, the respondents/plaintiffs learnt that the

appellant/defendant No.2 was raising construction on the said property

and upon the appellants/defendants failing to deliver possession of the

property to the respondents/plaintiffs, the suit was filed.

3. Needless to state the appellants / defendants contested the suit by filing

written statement, on the grounds:

(a) that the appellants/defendants had purchased the said property vide

Agreement to Sell and other documents dated 11th July, 2001 from the

erstwhile owner Sh. Ramdhan Sharma, being the father of the

appellant/defendant No.2 and the father-in-law of the appellant/defendant

No.1;

(b) that thereafter the said property was got converted into freehold

and a Conveyance Deed was duly executed in favour of the

appellants/defendants by DDA on 17th October, 2005;

(c) that Sh. Ramdhan Sharma in turn had purchased the said property

vide documents executed in his favour on 27th May, 1994 by Sh. Ishwar

Singh, the original allottee of the land underneath the said property.

4. On 28th November, 2011, the following issues were framed in the suit:-

"1. Whether the plaintiffs had purchased the suit property vide documents dated 25.1.1994? (OPP)

2. Whether Sh. Ram Dhan Sharma had purchased the suit property vide documents dated 27.5.1994? (OPD)

3. Whether the defendants had purchased the suit property from Sh. Ram Dhan Sharma vide documents dated 11.7.2001? (OPD)

4. Whether the suit is not maintainable without challenging the Conveyance Deed executed by DDA in favour of the defendants? (OPD)

5. Whether the suit is barred by limitation? (OPD)

6. Whether the plaintiffs are entitled to possession of the suit property? (OPP)

7. Whether the plaintiffs are entitled to mesne profits/damages for the use and occupation from the defendants and, if so, at what rate and for which period? (OPP)

8. Whether the plaintiffs are entitled to mandatory/permanent injunction as sought by them? (OPP)

9. Relief."

5. After the witness of the respondents / plaintiffs had been partly

examined, the respondents / plaintiffs filed an application under Order 14 Rule

5 of the CPC for deletion of issue No. 4. supra but which was dismissed vide

order dated 18th February, 2013 observing that though in the written statement

of the appellants / defendants the objection, as to the legal effect of the

respondents / plaintiffs not challenging the Conveyance Deed, had not been

taken in so many words but the factum of execution of the Conveyance Deed

had been explicitly set out; moreover the same was a legal plea which in any

case arose for consideration in the facts and circumstance of the case and it was

appropriate that attention of the parties be invited thereto by framing an issue,

to enable proper adjudication thereof. However on the request of the counsel

for the respondents / plaintiffs it was clarified that dismissal of the application

will not come in the way of the respondents / plaintiffs seeking amendment of

the plaint.

6. Thereafter the application for amendment of the plaint to incorporate the

relief of declaration that the documents dated 27 th May, 1994 allegedly

executed by Sh. Ishwar Singh in favour of Sh. Ram Dhan Sharma and dated

11th July, 2001 allegedly executed by Sh. Ram Dhan Sharma in favour of

appellants/defendants and the Conveyance Deed dated 17 th October, 2005 of

freehold rights in land underneath the property executed by DDA in favour of

appellants/defendants are false/forged/fabricated/manipulated and for

cancellation thereof, came to be filed and which has been allowed as aforesaid.

7. The appellants / defendants contested the application aforesaid for

amendment.

8. The learned Single Judge has however allowed the amendment, finding /

observing / holding:-

(i) that though the proviso to Order 6 Rule 17 provides that no

application for amendment shall be allowed after the trial had

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, but the respondents / plaintiffs had

given a plausible explanation to show that despite due diligence

they could not have inserted the amendment as subsequently

sought at an earlier stage i.e. prior to the commencement of trial;

(ii) that even otherwise the amendment sought could not be shut out;

(iii) that merely because a affidavit by way of examination-in-chief had

been filed and had also been tendered in evidence and

examination-in-chief had been partly recorded on one date of

hearing, it would not mean that respondents / plaintiffs had been

knocked out from being able to amend the plaint; such an

interpretation of the proviso to Order 6 Rule 17 could clearly not

have been envisaged;

(iv) else it was not in dispute that the amendment sought was

necessary for the purposes of determining the real question in

controversy between the parties and refusing the amendment

would amount to actually knocking out the case of the respondents

/ plaintiffs in as much as without setting aside the Conveyance

Deed in favour of the appellants / defendants, the relief claimed by

the respondents / plaintiffs, even if they were to be found entitled

thereto, could not be granted; and,

(v) procedural prescriptions are the handmaid and not the mistress, a

lubricant, not a resistant in the administration of justice.

9. The counsel for the appellants / defendants argued, (i) that the

respondents / plaintiffs filed the suit from which this appeal arises on 23rd

October, 2010; (ii) the appellants / defendants filed their written statement

thereto on 3rd January, 2011, setting up title in the property, of which

possession was claimed in themselves; (iii) the respondents / plaintiffs filed a

replication in May, 2011; (iv) issues were framed on 28th November, 2011; (v)

the respondents / plaintiffs filed affidavit by way of examination-in-chief of

their witness on 19th January, 2012; (vi) that the said witness of the respondents

/ plaintiffs was partly examined on 2nd May, 2012; (vii) that the respondents /

plaintiffs filed the application aforesaid under Order 14 Rule 5 on 14 th

February, 2013 which was dismissed on 18th February, 2013; (viii) that it is

only three months thereafter on 17th May, 2013 that the application for

amendment of the plaint was filed.

10. It is argued that the respondents / plaintiffs, became aware of the

documents culminating in the Conveyance Deed dated 17 th October, 2005 in

favour of the appellants/defendants on the filing of the written statement on 3rd

January, 2011. It is further contended, that the respondents / plaintiffs should

have applied for amendment of the plaint for claiming the relief of cancellation

of the said Conveyance Deed at that stage but did not do so; they did not so

apply, not even when a specific issue in this regard was framed on 28 th

November, 2011. It is argued that even thereafter no such amendment was

claimed; rather affidavit by way of examination-in-chief was filed. It is yet

further contended that thereafter also, the misconceived application for deletion

of issue no.4 was filed and the application for amendment, filed after three

months of dismissal of the application for deletion of issue no.4, was highly

belated.

11. The counsel for the appellants / defendants relies on:-

(a) Kailash Sharma (Smt.) Vs. Sh. Jagdish Lal Sharma 2010 X AD

(Delhi) 622 laying down that legislative intent in introducing the

proviso to Order 6 Rule 17 cannot be frustrated by giving liberal

interpretation thereto and by allowing amendments when the same

could have been applied for earlier, on exercise of due diligence;

(b) Vidyabai Vs. Padmalatha Vs. Padmalatha (2009) 2 SCC 409

laying down that the proviso to Order 6 Rule 17 is couched in a

mandatory form, unless the jurisdictional fact, as envisaged in the

proviso to Order 6 Rule 17, is found to be existing, the court will

have no jurisdiction at all to allow the amendment of the plaint;

(c) Ajendraprasad N. Pandey Vs. Swami Keshavprakeshdasji N.

(2006) 12 SCC 1 laying down that the trial is deemed to

commence when issues are settled and case is set down for

recording of evidence;

(d) Mahadeo Maruti Bhanje Vs. Balaji Shivaji Pathade 2012 AIR

CC 3080 (Bom) laying down that commencement of trial would be

from date of filing of affidavits in lieu of examination-in-chief and

not from date of framing of issues;

(e) Chander Kanta Bansal Vs. Rajinder Singh Anand AIR 2008 SC

2234 laying down that due diligence means such diligence as a

prudent man would exercise in the conduct of his own affairs;

(f) Mashyak Grihnirman Sahakari Sanstha Maryadit Vs. Usman

Habib Dhuka (2013) 9 SCC 485 where the order of the High

Court of allowing the amendment was set aside; and,

(g) Rajkumar Gurawara Vs. K. Sarwagi and Company Private

Limited (2008) 14 SCC 364 where amendment was disallowed

owing to not satisfying the conditions of the proviso for the reason

of the plaintiff having notice from the pleadings of the defendant

and from the framing of issues.

12. Per contra, the senior counsel for the respondents / plaintiffs has relied on

Smt. Rekha Bansal Vs. Mr. Ajay Kumar Bansal MANU/DE/8621/2006 where

amendment was allowed and Pradeep Singhvi Vs. Heero Dhankani (2004) 13

SCC 432 but which pertains to pre-amendment w.e.f. 1st July, 2002 of Order 6

Rule 17 and is thus not relevant.

13. There can be no manner of doubt that the trial in the present case had

commenced on the date when the application for amendment was filed and also

of the fact that the respondents / plaintiffs, if not earlier, at least on receipt of

copy of the written statement on 3rd January, 2011 had notice of the title being

set up by the appellants / defendants in themselves on the basis of the

documents culminating in the Conveyance Deed dated 17th October, 2005

supra. The respondents / plaintiffs thus, if at all required to seek the relief of

declaration and cancellation of / with respect to the said documents, to be

entitled to the reliefs claimed in the plaint, could indeed have claimed the

amendment immediately thereafter. On the contrary the application for

amendment was filed more than two years thereafter, only on 17th May, 2013

and after the trial had commenced. There was thus indeed delay on the part of

the respondents / plaintiffs.

14. However what has to be considered is whether the said delay disentitles

the respondents / plaintiffs to the amendment.

15. According to the appellants / defendants also, the respondents / plaintiffs

gained knowledge of the documents culminating in the Conveyance Deed dated

17th October, 2005 in favour of the appellants / defendants, and for cancellation

whereof the amendment was subsequently sought, from the written statement

filed by the appellants / defendants on 3 rd January, 2011. At least as of today it

is not the case of the appellants / defendants that the respondents / plaintiffs

knew of the said documents prior to the institution of the suit. We had during

the hearing categorically enquired from the counsel for the appellants /

defendants whether there was anything to show that the respondents / plaintiffs

knew of the said documents prior to the date of institution of the said suit.

Nothing was pointed out. We have perused the written statement of the

appellants / defendants. We do not find any such plea in the written statement

also. The cause of action for the relief claimed by way of amendment of the

plaint, of cancellation of the said documents and / or declaration of the same as

bad, can thus be said to have accrued to the respondents / plaintiffs only on 3 rd

January, 2011, when the written statement was filed.

16. We have wondered whether the proviso inserted w.e.f. 1 st July, 2002 to

Rule 17 of Order 6 would apply also to amendments qua the facts / reliefs,

cause of action wherefor has accrued after the institution of the suit.

17. In our opinion it cannot be said to be applying to such amendments.

Pleadings are allowed to be amended, to incorporate pleas which could have

been taken on the date when the pleadings were drafted but which were not

taken. However incorporation / addition of what could not have been pleaded

on the date of original filing would, strictly speaking in our view, not qualify as

amendment. The reasoning, running through all the judgments cited by the

counsel for the appellants / defendants, for the incorporation of the proviso to

Order 6 Rule 17 is to prevent delays. In fact, in Rajkumar Gurawara supra it

was held that pre-trial amendments are to be allowed liberally because the

opposite party is not prejudiced since it will have an opportunity of meeting the

amendment; on the contrary after the commencement of trial, particularly after

completion of evidence, question of prejudice to opposite party may arise. The

proviso was inserted to fix a last date by which amendments could be made.

The proviso in effect introduces a limitation for correction of errors, mistakes,

inadvertences, unless the same were inspite of due diligence. However the same

as aforesaid can have no application to what could not have been said in the

pleading as originally filed.

18. We had for this reason only further enquired from the counsel for the

appellants / defendants whether not the respondents / plaintiffs could have

instituted another suit for the relief sought by way of amendment of

cancellation of the documents culmination in the Conveyance Deed dated 17th

October, 2005 and the cause of action wherefor had accrued to the respondents

/ plaintiffs only on 3rd January, 2011. No answer was forthcoming.

19. We had in the same vein enquired from the counsel for the appellants /

defendants, whether not the relief sought to be added by way of amendment,

howsoever belated was not within limitation. As aforesaid, the written

statement which furnished cause of action for the said relief was filed on 3rd

January, 2011 and the application for amendment was filed on 17th May, 2013

i.e. within about 2 ½ years thereform. The limitation prescribed for such a

relief is three years from the date of cause of action. Reference in this regard

can be made to Articles 58 & 59 of the Schedule to the Limitation Act, 1963.

20. Once it is held that the second suit could have been filed for seeking the

relief which had been claimed by way of amendment, the entire conspectus

changes. The two suits entailing the same question of law and fact, in most

likelihood would then have been consolidated for trial. Thus, by allowing the

amendment, the delays have been curtailed rather than caused. In these

circumstances, no question of any prejudice to the appellants/defendants also

arises. Unfortunately none has looked into matter in the said perspective.

21. We may however notice Rajkumar Gurawara supra in this respect.

Though the Supreme Court in that case gave the reasoning of the plaintiff who

was seeking the amendment having notice of facts entitling the plaintiff to the

amendment, from the pleadings of the defendant and from framing of issues

from those pleadings and being thus not entitled to the amendment claimed

after the commencement of trial but a reading of the said judgment shows that

the plaintiff in the said case was also aware of the said facts from the reply of

the defendant to the legal notice preceding the institution of the suit. On the

contrary here we are concerned with a situation of the respondents / plaintiffs

becoming aware of the facts forming the basis of the amendment, for the first

time from the pleadings of the appellants / defendants.

22. There is another aspect of the matter. Though the appellants / defendants

in their written statement pleaded the documents in their favour but did not

expressly take the plea that the respondents / plaintiffs were not entitled to the

reliefs claimed without claiming the relief of cancellation / setting aside of the

said documents. The respondents / plaintiffs were thus not aware of the said

defence of the appellants / defendants from the filing of the written statement,

though their Advocate with his legal acumen ought to have deduced the same.

However it is a settled principle of law that litigants ought not to suffer for the

acts of their Advocate. The respondents / plaintiffs however became aware of

the said obstacle in their way from the issue framed. They could have applied

for amendment at that stage. However the legal advice received by them was, to

have the said issue deleted. It is only after they failed in the said effort did they

apply for amendment. The entire facts are not such so as to penalize the

respondents / plaintiffs for the acts of their Advocate.

23. We are conscious that the proviso to Order 6 Rule 17 bars amendments

to raise the matters which could have been raised before the commencement of

trial. Though it is capable of being read as also prohibiting amendments to add

matters the cause of action wherefor had accrued albeit after the institution of

suit but before the commencement of trial but we are of the view that as long as

the matter so sought to be added by way of amendment is within the prescribed

period of limitation, it has to be held that such amendment cannot be denied,

particularly in light of use of the wide words "at any stage of the proceedings"

in Rule 17.

24. Thus, though for reasons different than those given by the learned Single

Judge, we find no error in the order allowing the amendment of the plaint.

Resultantly the appeal is dismissed.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE JULY 02, 2014 pp..