Sanjay Bhargava vs Seema Bhargava
2014 Latest Caselaw 3192 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment Reserved on: July 11, 2014
                               Judgment Pronounced on: July 21, 2014

+              I.A. Nos.2116/2012, 4775/2012, 195/2013, 1697/2014,
               4435/2014 & Crl.M.A.1562/2012 in CS(OS) No.197/2012

       SANJAY BHARGAVA                                     ..... Plaintiff
                   Through           Mr.Pradeep Dewan, Sr. Adv. with
                                     Ms.Nidhi Jain, Mr.Kunal Tandon &
                                     Mr.Shashank Shekhar, Advs.

                          versus

       SEEMA BHARGAVA                                  ..... Defendant
                   Through           Ms.Kajal Chandra, Adv. with
                                     Ms.Swati Sinha & Ms.Prerna
                                     Chopra, Advs.

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By this order, I propose to decide all the pending applications, the details of which are mentioned as below:-

(i) I.A. No.2116/2012 (under Order XXXIX Rule 2A CPC read with Sections 10 & 12 of the Contempt of Courts Act, 1871 & Section 151 CPC, filed by the plaintiff)

(ii) I.A. No.4775/2012 (under Order VI Rule 17 read with Section 151 CPC, filed by the plaintiff)

(iii) I.A. No.195/2013 (under Sections 30 & 31 read with Order XIX Rules 1 & 2 CPC, filed by the plaintiff)

(iv) I.A. No.1697/2014 (under Section 151 CPC, filed by the defendant)

(v) I.A. No.4435/2014 (under Order VII Rule 11(a) & (b) read with Section 151 CPC, filed by the defendant)

(vi) Crl.M.A. No.1562/2012 (under Section 340 Cr.P.C., filed by the defendant)

2. Brief facts for the purpose of adjudication of these applications are that the parties are related to each other. The plaintiff is the real brother of defendant who filed the suit for permanent injunction and rendition of accounts against his sister i.e. defendant and prayed inter-alia in the plaint that a decree for partition be passed declaring the share of the plaintiff and the defendant as 1/2 share each in the suit property and other assets as mentioned in Annexure-A filed along with the plaint and the parties be given possession in view thereof. A decree for permanent injunction is also sought by the plaintiff directing the defendant not to alienate/transfer/sell/create any third party right in respect of all properties mentioned in Annexure-A.

3. The suit as well as the interim application being I.A. No.1574/2012 (under Order XXXIX Rules 1 & 2 CPC) were listed before Court first time on 25th January, 2012 when the summons were issued in the main suit and notice in the interim application and the Court directed the defendant to maintain the status-quo with regard to the title and possession of the suit property, i.e. B-250, Priyadarshini Vihar, New Delhi.

4. Upon service, the defendant filed her written statement and reply to the injunction application. Along with the written statement, the defendant filed two applications; one under Order XXXIX Rule 4 CPC being I.A. No.2311/2012, and another under Section 340

Cr.P.C., being Crl. M.A.1562/2012. Prior to that the plaintiff filed an application under Order XXXIX Rule 2A CPC being I.A. No.2116/2012. After filing of the written statement, the plaintiff filed an application under Order VI Rule 17 CPC being I.A. No.4775/2012. Directions were given to the parties to complete the pleadings in the pending applications and the plaintiff, in the meanwhile, also filed an application under Sections 30 & 31 CPC, being I.A. No.195/2013.

5. By order dated 3rd May, 2013, this Court after hearing both the parties disposed of two applications; one being I.A. No.1574/2012 (under Order XXXIX Rules 1 & 2 CPC filed by the plaintiff), and another being I.A. No.2311/2012 (under Order XXXIX Rule 4 CPC filed by the defendant). The said order is reproduced herein below:-

"I.A. No.1574/2012 (by the plaintiff u/O 39 R-1and2 r/w Sec.151 CPC) and I.A. No.2311/2012 (by the defendant u/O 39 R-4 r/w Sec.151 CPC)

1. Pleadings are complete.

2. The plaintiff has filed the accompanying suit praying inter alia that the defendant be restrained from selling, transferring, alienating or parting with the possession of the premises bearing No.B- 250, Priyadarshini Vihar, New Delhi.

3. On 25.1.2012, an ad interim ex parte order was passed in I.A. No.1574/2012, directing the defendant to maintain status quo with regard to the title and possession of the suit premises till further orders. The said interim order is continuing to operate in favour of the plaintiff.

4. Counsel for the defendant seeks vacation of the aforesaid order on the ground that it is well within the knowledge of the plaintiff that two registered gift

deeds, executed by the father of the parties in favour of the defendant, one dated 23.11.2007, gifting her the first floor and the portion above the first floor and the second one dated 29.4.2010, gifting her the ground floor of the suit property. He further states that the father of the parties had also executed a will dated 7.10.2008 bequeathing the entire suit premises in favour of the defendant.

5. Learned counsel for the defendant submits that the defendant is suffering from a serious ailment of sarcoidosis due to which, she has had to shut down her business and that she is undergoing extensive medical treatment for the aforesaid ailment. He states that the defendant has no other source of income, and in such circumstances, she proposes to shift residence from the suit premises, which is in her occupation, so that the same can be let out and she can then utilize the rent for meeting her mounting medical expenses and her day to day expenses. Thus a request is made for modification of the aforesaid ad interim ex parte order dated 25.1.2012, so that the defendant can let out the suit premises.

6. Counsel for the plaintiff opposes the aforesaid application on the ground that his client is unaware of the aforesaid gift deeds and will allegedly executed by the father of the parties in favour of the defendant. In any case, the plaintiff disputes the legality and validity of the said documents. It is however not denied that after the demise of the parents of the parties, the defendant has been in possession of the suit premises. Learned counsel states that the plaintiff, who is residing at Mumbai, had been regularly visiting his parents till 16.1.2012, when the mother of the parties had passed away and he was in possession of one room on the ground floor of the suit premises where he had kept his personal belongings.

7. The aforesaid submission is strongly refuted by the counsel for the defendant, who states that as on the date of passing of the aforesaid ad interim order dated 25.1.2012, the plaintiff was not in possession of any part of the suit premises and it was only after the aforesaid order came to be passed, that the plaintiff and his wife tried to trespass into the ground floor of the suit premises, thus compelling the defendant to file a complaint with the local police, that was later on converted into a FIR.

8. Without making any observations on the merits of the respective stands of the parties with regard to the alleged possession of the plaintiff in one room on the ground floor of the suit premises, and taking into consideration the health condition of the defendant and her precarious financial position, it is deemed appropriate to modify the aforesaid ad interim order dated 25.1.2012 by granting permission to the defendant to let out the suit premises, subject to the condition that she and the tenant who is inducted by her, shall abide by the orders passed by the court.

9. Further, upon letting out the suit premises, the defendant shall file an affidavit enclosing therewith a copy of the lease deed(s) executed with the tenant and file a quarterly statement of accounts with regard to the rent received/expenditure, if any, incurred in respect of the suit premises. The defendant shall also apprise the proposed tenant about the pendency of the present litigation and the orders passed. In case the plaintiff ultimately succeeds in the present suit, the defendant shall be liable to render accounts in respect of the rent received by her, as may be ordered by the Court.

10. It is clarified that the order passed above is without prejudice to the pleas taken by the plaintiff in I.A.No.2116/2012, an application filed under Order XXXIX Rule 2A CPC.

11. The applications are disposed of."

6. With regard to I.A. No.2116/2012 filed by the plaintiff under Order XXXIX Rule 2A CPC, the matter was listed on 9th September, 2013 for consideration. The Court had also asked the learned counsel for the parties to take the instructions from their respective clients and inform the Court if they are ready and willing to submit themselves to mediation. The following remaining applications were listed from time to time before Court for disposal:-

(a) I.A. No.4775/2012 (under Order VI Rule 17 CPC)

(b) I.A. No.2116/2012 (under Order XXXIX Rule 2A CPC)

(c) Crl.M.A. No.1562/2012 (under Section 340 Cr.P.C.)

7. By order dated 17th January, 2014, the parties were also directed to remain present in the Court on 28th January, 2014. However, the Court has recorded in the order dated 28th January, 2014 that the defendant did not seem to be inclined to have settled the matter amicably, therefore, the pending applications would have to be decided on merits. The said applications were put up for hearing on 11th July, 2014. In between, the matter was also sent before the Joint Registrar for admission/denial of the documents on 31st January, 2014.

8. In the meantime, the defendant filed other applications - (i) I.A. No.1697/2014 for vacation of the order dated 25th January, 2012 and modification of the order dated 3rd May, 2013 and (ii) I.A. No.4435/2014 under Order VII Rule 11 (4)(b) read with Section 151 CPC. Notices of the said applications were issued. Pleadings in the

applications are complete. All pending applications are taken up by the Court. Both the parties have made their respective submissions.

9. The case of the defendant in the written statement is that the suit is filed on the premise that Late Sh.R.C.Bhargava (father of the parties) died intestate and thus, his property deserves to be partitioned between the plaintiff and the defendant, i.e. brother and sister, the said statement is incorrect. In fact, the entire property stands gifted to the defendant by the registered Gift Deeds dated 23rd November, 2007 (regarding first floor and the above portion) and dated 29th April, 2010 (regarding ground floor of the property). The reference of first Gift Deed dated 23rd November, 2007 is mentioned in the registered Will dated 7th October, 2008 of Late Sh.R.C.Bhargava who undisputedly was the owner of the suit property which is a self-acquired property of the late father of the parties. After execution of Will, her father has gifted her ground floor by Gift Deed dated 29th April, 2010. The said registered documents are well within the knowledge of the plaintiff. Therefore, the suit for partition is not maintainable.

10. Learned counsel for the defendant in support of her submissions has mainly relied upon three documents, the details of which are given as under:-

(i) Gift Deed dated 23rd November, 2007 made by Late Sh.R.C.Bhargava in favour of the defendant gifting the first floor and portion above the first floor of the suit property to her.

(ii) Gift Deed dated 29th April, 2010 made by Late Sh.R.C.Bhargava in favour of the defendant gifting the ground floor of the suit property to her.

(iii) Will dated 7th October, 2008 executed by Late Sh.R.C.Bhargava.

11. It is not in dispute that all these documents are duly stamped and registered. The case of the defendant is that the said documents were within the knowledge of the plaintiff who has deliberately suppressed these documents with a motive to obtain ex parte ad- interim order and to harass the defendant. The defendant is the absolute and exclusive owner of all the movable properties of Late Sh.R.C.Bhargava and the plaintiff has no right over the assets of Late Sh.R.C.Bhargava. Counsel states that in view of the above said facts and circumstances, the defendant is left with no option but to file the I.A. No.1697/2014 for vacation of the order dated 25th January, 2012 and modification of the order dated 3rd May, 2013.

During the course of arguments, it is not disputed by the learned counsel for the defendant that earlier the plaintiff's application under Order XXXIX Rules 1 & 2 CPC was disposed of along with the defendant's application under Order XXXIX Rule 4 CPC and the said order has not been challenged by the defendant by filing of an appeal under Order XLIII Rule 1(r) CPC. The contention of the learned counsel for the defendant is that the defendant is entitled for vacation of the interim order and also modification of the order dated 3rd May, 2013 where the Court while disposing of the application allowed the defendant to let out the suit property and file an affidavit enclosing

therewith a copy of the lease deed executed with the tenant and file a quarterly statement of accounts with regard to the rent received/ expenditure, if any, incurred in respect of the suit property, and also asked the defendant to apprise the proposed tenant about the pendency of the present litigation and the order passed. Thus, atleast the said condition be waived so that the ground floor be let out to the tenant without any condition imposed by this Court vide order dated 3rd May, 2013.

12. The contention of the learned counsel for the plaintiff is that the plaintiff has no knowledge about the execution of the two Gift Deeds in favour of the defendant. The plaintiff, in fact, has argued that both the Gift Deeds are null and void documents and, therefore, the plaintiff has filed the application under Order VI Rule 17 CPC being I.A. No.4775/2012 for amendment of the plaint by incorporating various paragraphs and relief to pass a decree against the defendant and in favour of the plaintiff for a declaration that the Gift Deeds dated 23rd November, 2007 and 29th April, 2010 and the Will dated 7th October, 2008 are illegal, null and void.

13. The plaintiff has challenged these three documents on various grounds in his pleadings as well as in the application under Order VI Rule 17 CPC. Learned counsel for the plaintiff has also referred the alleged Will dated 7th October, 2008 wherein it was bequeathed by the father by giving clarification that, "In case the said ground floor portion of the said property is sold by my daughter after my death, and she realizes net sales consideration as reduced by applicable

taxes exceeding or equal to Rs.1,00,00,000/- (Rupees one crore), then she will pay a sum of Rs.50 lakhs to my son Sanjay Bhargava, and another Rs.50 lakhs to my wife Mrs.Asha Bhargava, or to the extent of the sums realized if the net sales consideration as reduced by applicable taxes of the said ground floor portion of the said property is less than Rs.1,00,00,000/- (Rupees one crore)."

14. The contention of the learned Senior counsel for the plaintiff is that in fact, the father intended to gift some amount to the plaintiff and his mother in case the ground floor portion of the suit property is sold by his daughter, i.e. the defendant, after his death. (Though his client still insists for partition of the movable and immovable property and is not accepting the Will as it is). He further states that subsequent to the Will, no doubt, the defendant has also filed another Gift Deed dated 29th April, 2010 made by Late Sh.R.C.Bhargava in favour of the defendant gifting the ground floor of the suit property. However, he states that the photograph of the deceased on the said Gift Deed would show that the deceased father was lying on the bed. The gift deed pertaining to the ground floor was allegedly registered. In nut- shell, his submission is that the pleas taken by his client are to be tested at the time of trial. The possession of entire property is with the defendant who is also receiving rent from the tenant. She is not sharing any amount with the plaintiff. Therefore, no prejudice would be caused, if the pleas raised by the plaintiff with regard to three documents are examined in trial. The suit under these circumstances cannot be dismissed. While considering the application under Order

VII Rule 11 CPC filed by the defendant, the Court has to consider the plaint as well as the documents filed along with the plaint.

I.A. No.1697/2014

15. Firstly, I shall take up this application. The same is filed by the defendant under Section 151 CPC for vacation of the order dated 25th January, 2012 and modification of the order dated 3rd May, 2013. It is not disputed by the learned counsel for the defendant that the status-quo order in the matter was passed on 25th January, 2012 directing the defendant to maintain status-quo with regard to the title and possession of the suit property. The defendant has also filed the reply to the interim application and also filed the application under Order XXXIX Rule 4 CPC for vacation of the said order. Both the applications were disposed of by order dated 3rd May, 2013. No review of the said order was filed by the defendant. Even, the said order was not challenged in the appeal.

16. As far as the injunction sought by the plaintiff by filing of the fresh application is concerned, the same is not maintainable as the order dated 3rd May, 2013 attains the finality while disposing of the plaintiff's injunction application as well as the defendant's application under Order XXXIX Rule 4 CPC and all the pleadings were available before the Court when the said applications were disposed of in the presence of the said parties. The defendant has also not challenged the said order before Court. No change of circumstances is shown by the defendant for the purpose of getting the said order vacated by filing the fresh application under Section 151 CPC. All the

documents and pleas raised by the defendant were already available on record when order dated 3rd May, 2013 was passed. In a way, the defendant is seeking the review of the order after a period of about ten months. The expressions "modification" and "clarification" used by many parties now-a-days have been dealt with by the Supreme Court in many cases over and again and it is held that in fact, it amounts to review of the order. In the present case, no review or application for condonation of delay has been filed by the defendant. Even otherwise, this Court is of the view that once the interim application and vacation application are decided on merit in the presence of the order which has attained finality unless change of circumstances. In the present case all the documents referred by the defendant's counsel were available when the order dated 3rd May, 2013 was passed. As far as waiving of condition is concerned, the said order at this stage cannot be reviewed for the reason that the entire possession of the suit property is with defendant who is not sharing any rent with the plaintiff.

17. It is settled law that once the application under Order XXXIX Rules 1 & 2 CPC filed by the plaintiff and the application under Order XXXIX Rule 4 CPC filed by the defendant are disposed of by the speaking order on merits in the presence of the parties, the prayer in the fresh application for vacation of an order by way of modification cannot be granted. Hence, the present application is dismissed.

18. Now, I shall take up another application being I.A. No.4435/2014 filed by the defendant.

The abovementioned application has been filed by the defendant under Order VII Rule 11(a) & (b) read with Section 151 CPC for rejection of plaint, mainly, on the ground that the plaintiff has never been in the actual physical possession of the suit property. The plaintiff cannot take the advantage of paying the fixed Court fee. The suit is not properly valued for the purposes of Court fee and jurisdiction. Therefore, the plaint is liable to be rejected and the other ground taken by the defendant is that after execution of the three documents, the suit property has duly been mutated in the name of the defendant. There is no cause of action in favour of the plaintiff and against the defendant in the present suit. The suit property even otherwise is neither the HUF property, nor the Hindu intestate property. Therefore, the question of partition as alleged by the plaintiff does not arise.

19. The plaintiff has filed the reply to this application. As far as the cause of action is concerned, in the plaint the specific statement has been made by the plaintiff that the cause of action for filing the suit arose in favour of the plaintiff as the property of the deceased is jointly owned by the parties and the father/deceased was the owner of the property who had died intestate, therefore, there is a valid cause of action. With regard to the Court fee, the contention of the plaintiff is that the plaintiff was in continuous possession of the ground floor of the suit property. He used to visit the suit property

regularly until the death of the father and on most occasions for 2-3 times in a month used to live with his parents on the ground floor of the suit property. Therefore, it is a valid cause of action as per the case of the plaintiff. Even, the Court fee has been properly paid by the plaintiff.

20. Learned counsel for the defendant has referred the following decisions:

i) Zahoor Ahmed vs. Rakhi Gupta & Ors., 188 (2012) DLT 9.

ii) S. Majinder Singh vs. Krishna Bhat & Ors., 206 (2014) DLT 58.

iii) Harjit Kaur & Ors. vs. Jagdeep Singh Rikhy, 116 (2005) DLT 392.

iv) Bhagwan Kaur & Ors. vs. Amrik Singh & Ors., AIR 2007 Punjab & Haryana 100.

v) Sonu Jain (Smt.) vs. Sh. Rohit Garg, 2006 II AD (Delhi)

vi) Suhrid Singh @ Sardool Singh vs. Randhir Singh & Ors., AIR 2010 SC 2807.

vii) Smt. Jai Lakshmi Sharma vs. Smt. Dropati Devi & Ors., AIR 2010 Delhi 37.

21. The general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not

disputed the law presumes that he is in joint possession unless he is excluded from such possession otherwise allegations of the plaint are to be taken into consideration. The court is not required to examine the truthfulness of the said allegation.

22. The following judgments referred by the learned counsel for the plaintiff in this regard are as under:-

(i) Shobha Jolly vs. Suraj S.J. Bahadur & Anr., reported in 2013 IX AD (Delhi) 213. Relevant para are as follows:

"18. In a partition suit, the averments in the plaint as regards the Plaintiff being in possession, either constructive or physical, of the property in question of which partition has been sought is a critical element. The legal position in terms of the unamended Act is that where the Plaintiff in a partition suit avers that the Plaintiff is in actual or constructive possession jointly with the other coparceners of the other suit property, then such Plaintiff will have to pay a fixed court fee and not an ad valorem court fee. On the other hand, if there is no such averment as to the Plaintiff being in actual or constructive possession, and the narration shows that there has been an ouster of the Plaintiff from the suit properties then the Plaintiff will not be entitled to pay a lesser court fee, i.e., not a fixed court fee but ad valorem court fee at 4% on the market value of the share claimed by the Plaintiff."

(ii) Krishna Gupta & Anr. vs. Rajinder Nath & Co. HUF & Ors., reported in 198 (2013) Delhi Law Times 85. Relevant paras are as under :

"51. It is settled law that in a suit for partition, if joint possession is pleaded by the plaintiff, on the basis that he is a co-owner of the suit property sought to be partitioned, fixed court fees is to be paid under Article

17(vi) of Schedule II of the Court Fees Act, 1870 on the presumption of joint possession of the plaintiff, even if the plaintiff is not in actual possession. Equally, it is not necessary that the plaintiffs should be getting a share or some income from the property. This is because by creating a fiction of law, it is deemed that in case of co- owners, the possession of one in law is the possession of all, unless upon perusal of the averments in the plaint that must be read as a whole, a clear cut case of ouster is made out. Only in such circumstances would the plaintiff be liable to pay ad valorem court fees on the market value of his share as provided for under Section 7(iv)(b) of the Court Fees Act."

23. In the case of Neelavathi and others v. N. Natarajan and others, AIR 1980 SC 691, the Supreme Court has laid down that it is settled law that the question of court fees must be considered in the light of the allegation made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. It was held that the general principle of law is that in the case of co-owners the possession of one is in law the possession of all, unless ouster or exclusion is proved.

24. As far as paying of ad valorem court fee at the market value of the property is concerned, it is the admitted position that all the three documents relied upon by the defendant, the plaintiff is not signatory of any document. The plaintiff's contention is that the said documents are null and void. He seeks cancellation of said documents.

The Supreme Court in Suhrid Singh's case (supra) in para 7 held as under:

"7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B -- two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non- est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if B, a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act."

25. With regard to the principle of law under Order VII Rule 11 CPC, the learned counsel for the plaintiff has referred the decision of the Supreme Court in the case of Bhau Ram vs. Janak Singh and others, reported in (2012) 8 Supreme Court Cases 701, relevant paras 13 & 15 whereof read as under:-

"13. In order to ascertain an answer for the above question, we have to consider whether the application under Order 7 Rule 11 CPC filed by the defendant can be decided merely on the basis of the plaint and whether the other materials filed by the defendant in support of the application can also be looked into. The trial court allowed the application of the appellant/defendant No.1 filed under Order 7 Rule 11 CPC on the ground that the plaint was barred under the provisions of Order 9 Rules 8 & 9 CPC and Order 23 Rules 1(3) & 1(4)(b) CPC. The said order of the trial court was set aside by the first appellate court on the ground that the trial court had taken the pleas from the written statement of the defendant which is not permissible under Order 7 Rule 11 CPC and the High Court in the second appeal confirmed the judgment of the first appellate court.

14. x x x x x x

15. The law has been settled by this Court in various decisions that while considering an application under Order 7 Rule 11 CPC, the court has to examine the averments in the plaint and the pleas taken by the defendants in its written statement would be irrelevant. [vide C. Natrajan v. Ashim Bai, (2007) 14 SCC 183, Ram Prakash Gupta v. Rajiv Kumar Gupta, (2007) 10 SCC 59, Hardesh Ores (P) Ltd. v. Hede and Co., (2007) 5 SCC 614, Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100, Sopan Sukhdeo Sable v. Asstt. Charity Commr., (2004) 3 SCC 137 and Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557]. The above view has been once again reiterated in the recent decision of this Court in Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust, (2012) 8 SCC 706."

26. It is well settled that the Court, at the stage of considering an application under Order 7 Rule 11 CPC has to examine only the plaint averments, and the list of documents filed along with the suit.

Other pleas advanced by parties, including the pleadings in the written statement, have no relevancy in order to decide the present application in hand. The following decisions are necessary to be referred in this regard:

i) The Supreme Court in Liverpool & London S.P. & I Assn. Ltd.

v. M.V. Sea Success, (2004) 9 SCC 512, while dealing with the law relating to rejection of plaint under Order VII Rule 11 CPC, observed as follows:

"Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.

In ascertaining whether the plaint shows a cause of action, the court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact.

So long as the claim discloses some cause of action or raises some questions fit to be decided by a judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The purported failure of the pleadings to disclose a cause of action is distinct from the absence of full particulars."

ii) In the case of Saleem Bhai and Ors. vs. State of Maharashtra, AIR 2003 SC 759, it was held with reference to Order VII Rule 11 of the Code that the relevant facts which need to be looked into for deciding an application thereunder are the averments in

the plaint. The trial Court can exercise the power at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are the germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.

iii) In the case of Popat and Kotecha Property vs. State Bank of India Staff Association, (2005)7 SCC 510, it was held as under:-

"The real object of Order VII Rule 11 of the Code is to keep out of courts irresponsible law suits." "Rule 11 of Order VII lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word 'shall' is used clearly implying thereby that it casts a duty on the Court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13."

27. In view of the above said facts and circumstances and the law settled on this subject, at this stage, I am not inclined to reject the plaint on the grounds stated in the application. All the grounds raised by the defendant in the application are necessary to be considered by

the Court after the trial in the matter. The plaint cannot be rejected on the grounds stated in the written statement. In case, the plea raised by the defendant in her written statement is ultimately determined by the Court as true, then the plaintiff may not be entitled to prayer of the relief claimed, but at this stage, I am not inclined to reject the plaint in view of the settled law. The application is accordingly dismissed.

I.A. No.4775/2012

28. The abovementioned application has been filed by the plaintiff under Order VI Rule 17 read with Section 151 CPC for amendment of the plaint. It is stated in the application that on perusal of the pleadings and documents filed by the defendant, it is necessary to amend the plaint since the facts were not in the knowledge of the plaintiff and have come to light only upon filing of the written statement and documents by the defendant. The plaintiff seeks to amend relevant portions of the plaint as detailed in the application by bringing the following changes:-

a) The title of the suit- from "suit for partition and permanent injunction and rendition of accounts" to "suit for declaration, partition and permanent injunction and rendition of accounts".

b) Substitute paras 5 and 6 as detailed in para 9 of the application.

c) Add paras 5 (a) and (b) as detailed in para 9 of the application.

d) Add paras 12 (a), (b), (c), (d), (e), (f) as detailed in para 10 of the application.

e) Substitute paras 13, 15 and 16 as detailed in para 11 of the application.

It is further stated in the application that the plaintiff had no knowledge of the alleged documents filed by the defendant before the filing of the suit and hence the same could not be disputed at the time of filing of the suit. It is further stated that the suit is still at initial stage and no prejudice would be caused to the defendant if this application is allowed. It is stated that it would further avoid multiplicity of cases being filed between the same parties.

29. Reply on behalf of the defendant was filed wherein it was stated that the plaintiff despite knowing the facts to be false stated the same in the plaint and thus, now wants to amend the same. It is stated that the plaintiff by way of this application seeks to amend the plaint by introducing 14 changes/substitutions/additions thereby pleading to incorporate new facts which would adversely and substantially change the very nature of the suit, which is evident from the fact that earlier the plaintiff was praying for the relief of partition and now wants to amend the plaint to pray for relief of declaration, which clearly shows the nature of the suit being changed substantially and thus, cannot be allowed and merits outright dismissal.

30. It is settled law that while considering the application for amendment the courts have very wide discretion in the matter of amendment of pleadings but court's power must be exercised

judiciously and with great care. While deciding applications for amendments the Courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts' discretion in grant or refusal of the amendment. The other important condition which should govern the discretion of the court is the potentiality of prejudice or injustice which is likely to be caused to the other side.

31. As per law, ordinarily, if the other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side and basic principles which ought to be taken into consideration while allowing or rejecting the application for amendment are: (i) whether the amendment sought is imperative for proper and effective adjudication of the case; (ii) whether the application for amendment is bona fide or mala fide; (iii) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (iv) refusing amendment would in fact lead to injustice or lead to multiple litigation; (v) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (vi) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of

application. The above are some of the important factors which may be kept in kind while dealing with application filed under Order VI Rule 17 CPC. These are only illustrative and not exhaustive.

Various decisions of the Supreme Court and of this Court have been referred by both parties. It is not necessary to refer all the decisions referred by both parties as the basic principles have been discussed in most of the judgments. The amendment if any to be allowed or refused depends upon the facts of the case in hand while following the laws laid down in large number of cases.

It is not in dispute in the present case that the relief sought by way of amendment by the plaintiff could be claimed by way of a separate suit for cancellation of three documents relied upon by the defendant. It is held in the case of Abdul Rehman and another vs. Mohd. Ruldu and others, reported in (2012) 11 Supreme Court Cases 341 that an amendment seeking declaration of title shall not prejudice the case of the other side unless the reliefs claimed are not barred by limitation. It was observed in the case referred that no prejudice would be caused to the respondents if amendments were allowed. In order to avoid further litigation, the same should be allowed as all amendment which are necessary for the purpose of determining the real questions in controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties.

Supreme Court in the case of Rajesh Kumar Aggarwal and others vs. K.K.Modi and others¸ reported in (2006) 4 Supreme Court Cases 385 held as under:

"18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court.

19. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case."

32. It is not in dispute in the present case that in view of controversy raised by the plaintiff in the application for amendment, wherein the plaintiff has challenged the three registered documents

on various grounds, merit or demerit of his contention cannot be determined at this stage. A party may have a weak case on merit with regard to challenging the documents but fact remains that the merit is not to be considered while deciding the application for amendment. Thus, the same is liable to be allowed if a valid case for amendment is made out in order to decide the real dispute between the parties. It is not denied by the defendant that the separate suit for cancellation of documents is maintainable in law. The plaintiff claims that he is not signatory to the said documents. The plaintiff has made a specific statement that he was not aware about the said documents otherwise, he would have mentioned the same in the plaint and sought the same additional relief which is now sought to be incorporated by virtue of amendment.

Therefore, considering the overall facts and circumstances in the present case and in order to avoid multiplicity of the proceedings and to save the time of Court and costs of the parties, the prayer made in the application is allowed, subject to the cost of Rs.10,000/- which shall be paid by the plaintiff to the defendants within two weeks. Amended written statement be filed within four weeks. Replication, if any, be filed within two weeks thereafter.

The application is accordingly allowed.

Crl. M.A. No.1562/2012 & I.A. No.2116/2012

33. In view of the order passed in the pending applications, these applications may be considered at the time of deciding the suit finally after recording evidence of the parties in view of the allegations and counter allegations made by both parties.

I.A. No.195/2013

34. The abovementioned application has been filed by the plaintiff under Sections 30 & 31 read with Order XIX Rules 1 & 2 CPC to issue summons to the witnesses, namely, Mrs. Anita Bhargava, Dr.G.P.Bhargava and Mr.Laxman Bhargave to give evidence or produce documents.

35. It is the admitted position that the stage of evidence has not reached in the matter. Liberty is granted to the plaintiff to summon the above-named witnesses at the appropriate stage.

36. The application is accordingly disposed of.

CS(OS) No.197/2012

37. The parties shall appear before the Joint Registrar on 30th September, 2014 for admission/denial of the documents and thereafter, the matter be listed before Court on 17th October, 2014 for framing of issues as well as directions for trial.

(MANMOHAN SINGH) JUDGE JULY 21, 2014