Manohar Singh vs I.C. Sharma
2014 Latest Caselaw 3209 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Judgment Reserved on: July 16, 2014
                             Judgment Pronounced on: July 21, 2014

+            I.A. No.20054/2013 in CS(OS) No.1064/2009

      MANOHAR SINGH                                      ..... Plaintiff
                  Through          Mr.V.K.Sharma, Adv. with
                                   Mr.S.S.Tripathi, Adv.

                       versus

      I.C. SHARMA                                     ..... Defendant
                       Through     Mr.C.S.Bhandari, Adv.

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By this order I propose to decide I.A. No. 20054/2013 filed by the defendant under Order VI Rule 17 read with Section 151 CPC for seeking amendment in the written statement.

2. The plaintiff filed a suit for possession, recovery of damages and injunction against the defendant stating that the plaintiff is the owner of plot no. 11 now known as property bearing No. D-144-B (hereinafter referred to as the "suit property") situated in Khasra No.38 in the revenue estate of Neb Sarai, Tehsil Mehrauli, New Delhi (hereinafter referred to as the "said land"). It was stated that the plaintiff had sub-divided the entire land in the year1990 into 24 plots and the defendant illegally encroached and took illegal possession of the suit property on which he has raised construction somewhere in the year 2004.

3. In the written statement filed by the defendant, it was stated that the defendant along with his wife had purchased the suit property for a consideration of Rs.5 lacs from one Sumitra Devi against various documents dated 28th March, 2000 and the GPA and Will which was duly registered with the office of the Sub-Registrar, Delhi and the possession thereof was handed over to them. The suit property was initially sold by the plaintiff himself to one Rashmi Gupta vide GPA and Will registered with Sub-Registrar, Delhi dated 28th October, 1992 and thereafter has been sold from time to time, lastly to Sumitra Devi from whom the defendant and his wife purchased the same. It had been stated that defendant had applied for house tax and electricity connection in his name for the suit property. Therefore, the plaintiff had no cause of action to file the suit and the suit is also barred by time besides being barred under Section 185 of Delhi Land Reforms Act, 1954.

4. In this application, it has been stated that sometime in the month of July, 2012, through the appellate proceedings initiated by the plaintiff before Dy. Commissioner, South, Saket, New Delhi, the defendant also came to know that an area of 4 Bighas & 16 Biswas (hereinafter referred to as "the said area") falling in the said land was allotted to Late Sh. Bhagat Singh, elder brother of the plaintiff under 20 point programme for agriculture purpose by the Government. After his death, the said area on the said land was transferred to his widow Sumitra Devi on 31st December, 1985. After her death, as per her Will, this area was transferred in the name of Manohar Singh on 18th June, 1986. Thereafter, during 1989-1992, the plaintiff sold the said land after carving out 24 plots out of which the suit property was sold

to Rashmi Gupta, predecessor of the defendant and his wife. It has been stated that the plaintiff was not entitled to carve out the plotting of the agricultural land under the said 20 point programme for agriculture purpose by the Government. Under Section 81 of the Delhi Land Reforms Act, 1954, the said land was vested in Gaon Sabha vide order of SDM dated 28th April, 1995 and the plaintiff misused the said land for residential purpose against the original use of agriculture purpose.

5. It has been further stated that the plaintiff alleged that when he came to know about the said land having been vested in the Gaon Sabha due to his using the land for residential purpose, other than the agriculture purpose during execution proceedings, the plaintiff filed an application before the SDM/Revenue Assistant for restoration of the land, who dismissed his application vide order dated 19th May, 2001. Thereafter the plaintiff filed an appeal in the Court of Dy. Commissioner, South, Saket, New Delhi on 2nd September, 2003, wherein some purchasers of the plots on the said land were impleaded as parties.

6. It has been stated by the defendant that as the entire agricultural land given by the government was vested in Gaon Sabha, the plaintiff is not the owner. Therefore after 28th April, 1995 the plaintiff has no locus standi to maintain this case and the matter is subjudice in the appellate Court of Dy. Commissioner, South, Saket, New Delhi.

7. Further, while admitting the plaint of this suit, the Court pointed out that it appeared from the documents filed by the plaintiff that the land was governed by Delhi Land Reforms Act, 1954 and thus the

jurisdiction of Civil Court is barred. However, counsel for the plaintiff stated that the said land i.e. subject matter of this suit has been exempted from provisions of the said Act vide notification dated 6th December, 2007. The counsel undertook to file the said notification and the suit was admitted for hearing.

8. However, on careful examination of the said notification, it was revealed that the same pertained to regularization of unauthorized colonies in Delhi and not exemption under the said Act. The plaintiff had misled the court.

9. All these facts came to the knowledge of the defendant after he came to know about the proceedings before Dy. Commissioner. In view thereof, the defendant seeks to amend Para 3 of his preliminary objection in terms of Para 6 of this application.

10. It has been stated that the proposed amendments are necessary for the purpose of determining the real controversy between the parties, which also goes to the root of the case with regard to the jurisdiction of this Court and concealment of facts by the plaintiff that the issue of his alleged ownership is subjudice before Revenue Appellate Authority. The defendant was not aware of these facts despite his due diligence. Evidence of the plaintiff is yet to be recorded in this matter and no prejudice would be caused to the plaintiff in any manner if the amendments are allowed.

11. In the reply to this application, it has been stated that the present application seeking amendment of the written statement has been filed more than three years after the written statement was filed in this case. The objection with regard to the suit being barred has

been taken in the written statement also, so this application is nothing but an attempt to derail and delay the trial.

12. It has been stated that the said area falling in the said land was owned by the forefathers of the plaintiff. It is not disputed that the said land vested in Gram Sabha by order of the SDM dated 28th April, 1995. However, this order was passed ex-parte. When the plaintiff came to know about the said order, an application was filed for restoration of the land, which was dismissed vide order dated 19th May, 2001 against which the appeal was preferred and is pending. Impleadment of any alleged purchaser in the said appeal is of no consequence. In fact in the said appeal the plaintiff has filed an application seeking to withdraw the same on the ground that the entire land has been declared to be private land in view of order dated 12th December, 2007, followed by orders dated 9th August, 2012 and circular dated 3rd July, 2013 of the Delhi Government. The said application is pending consideration.

13. Other averments made in the application are denied by the plaintiff and it is stated that the said amendments are not necessary. Otherwise also, the case has reached the stage of recording the evidence of the plaintiff and all witnesses of the plaintiff have been examined. The plaintiff has already tendered his affidavit by way of evidence and remains to be cross-examined. The present application has been filed with a view to derail the ongoing proceedings in a smooth manner. The trial has commenced in this case and the defendant at this stage cannot seek amendment in his writtem statement.

14. In the rejoinder filed by the defendant, the averments made by the plaintiff in the reply to the application are denied and the averments made in the application are reiterated.

15. In order to consider whether the defendant has made out a case for amendment of his written statement, it is useful to refer Order VI Rule 17 CPC which 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."

It is apparent that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. The said provision is subject to proviso. The proviso makes it clear that after the commencement of the trial, no application for amendment shall be allowed unless party to the proceedings is able to satisfy the court that in spite of due diligence it could not raise the issue before the commencement of trial and the Court is satisfied, then amendment can be allowed even after commencement of the trial.

16. It is settled law that the grant of permission for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would

result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. If the proposed amendment would in effect result in any of the above said, the same should not be allowed.

17. It is also settled law that under the said provision to amend the pleadings, the party cannot be permitted to use it as a lever to frustrate the due process of law nor can the provision for amendment be permitted to be utilized as an instrument to stall the entire process of the case which had already matured and is at the final stage. Even though, the law is quite liberal in allowing the amendment in the written statement. The additional or new ground of defence by taking the fresh pleas in the written statement is not permissible in law.

18. Issues in the present case were framed on 8th February, 2011 and directions were issued to the plaintiff to produce the evidence. The trial admittedly has commenced. The plaintiff has already examined six witnesses. However, in the meanwhile, the present application has been filed by the defendant.

19. In case the application of the defendant is read in a meaningful manner, it appears to the Court that the defendant is trying to enlarge the scope of the matter by adding additional facts and circumstances which have occurred before filing of the suit as well as after filing of the suit by the plaintiff. The defendant has already taken all the pleas about his defence in the written statement and has covered his entire case. He should restrict to his case in view of specific plea raised in the written statement. If he wants to incorporate anything, the same may be referred in his affidavit to be filed as evidence. As far as the incorporating of additional facts, which are not relevant to decide the

real controversy between the parties in the garb of the amendment or to delay the decision of the suit is concerned, it would not be allowed by the Court. The defence of the defendant is straight, clear and simply made in the written statement and the same has to be proved by the defendant in accordance with law. The defendant is at liberty to summon the record from the appropriate office/Authority and witnesses, if necessary. The defendant cannot be allowed to drag the suit proceedings in this fashion. Therefore, the prayer made in the application cannot be allowed. The same is hereby dismissed. CS(OS) No.1064/2009 List the matter before the Joint Registrar on 14th August, 2014 for fixing the date for remaining evidence.

(MANMOHAN SINGH) JUDGE JULY 21, 2014