Mrs Anita Kumari Gupta vs Late Mr Ved Bhushan (Deceased Thr. ...
2014 Latest Caselaw 2284 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                             Date of decision: 6th May, 2014.

+             FAO(OS) 357/2013 & CM No.11998/2013 (for stay)

       MRS ANITA KUMARI GUPTA                     ..... Appellant
                   Through: Mr. S.D. Singh & Mr. R.K. Vats, Adv.

                                      Versus

    LATE MR VED BHUSHAN (DECEASED
    THR. LRS) & ORS                            ..... Respondents

Through: Mr. Sanjiv Kakra with Mr. Atul Kumar & Mr. Sanjeev Mahajan, Advs. for R-1,2,5&6.

CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The appeal impugns the order dated 9th July, 2013, of the learned

Single Judge in CS(OS) No.1093/2011 filed by the appellant/plaintiff,

allowing the application of the respondents/defendants under Order VII Rule

11 of the Civil Procedure Code (CPC), 1908 and rejecting the plaint as not

disclosing any cause of action.

2. The appeal was admitted for hearing and the parties directed to

maintain status quo with regard to the title and possession of "the suit

property". Attempts to have the dispute settled amicably did not fructify.

We have heard the counsels for the parties.

3. We have at the outset enquired from the counsel for the

appellant/plaintiff, as to how the present appeal with the nomenclature of

„FAO‟ i.e. First Appeal against Order is maintainable. Attention of the

counsel is invited to the definition of a „decree‟ under Section 2(2) of the

CPC and which is deemed to include rejection of the plaint. It has thus been

enquired, whether not the remedy of the appellant/plaintiff is by way of a

Regular First Appeal i.e. RFA against such a decree.

4. The counsel for the appellant/plaintiff has invited our attention to the

order dated 6th August, 2013 when, while admitting the appeal, the

appellant/plaintiff was directed to deposit appropriate court fees in

accordance with law. He states that such court fees has since been deposited

and in fact the appeal should thus be treated as RFA rather than FAO.

5. The counsel for the respondents/defendants has fairly stated that in

view of the court fees having been paid, the nomenclature makes no

difference.

6. The suit, plaint wherein has been rejected as not disclosing a cause of

action, was filed by the appellant/plaintiff seeking partition of property

No.24, Pusa Road, New Delhi, claiming 1/6th share therein and for ancillary

reliefs, averring:

(i) that the father of the appellant/plaintiff and the

respondents/defendants No.1 to 4 and the grandfather of the

respondents/defendants No.5&6 was the owner of the said property

and he died on 18th December, 1965;

(ii) that after the death of father, the property was transferred in the

name of the mother who also died intestate on 28th March, 1991;

(iii) that the appellant/plaintiff thus had a 1/6th share in the property;

(iv) that the appellant/plaintiff though settled abroad, on her visits to

India always used to reside in the said property but which is now

being denied to the appellant/plaintiff.

7. The respondents/defendants No.1 to 3 & 5 contested the suit by filing

written statement dated 25th May, 2011, on the grounds:

(a) that it was the mother of the parties and not the father who was

the owner of the said property;

(b) that the mother had left behind her last Will and Testament

dated 8th December, 1988 bequeathing the said property to the

respondents/defendants No.1 to 3 and the predecessor-in-interest of

the respondents/defendants No.5&6 only;

(c) that the respondents/defendants No.1 to 3, 5 & 6 had got the suit

property mutated in their names in the records of the Municipal

Corporation of Delhi (MCD) vide letter of mutation dated 20th

November, 1991;

       (d)    that    this    mutation   was      in   the   knowledge      of     the

       appellant/plaintiff;

       (e)    that the respondents/defendants No.1 to 3, and predecessor-in-

interest of respondents/defendants No.5 & 6 also applied to the Delhi

Development Authority (DDA), being the lessor of the land

underneath the property, for mutation in their names on the basis of

the Will aforesaid;

(f) that DDA required recording of the statements of all the legal

heirs including the appellant/plaintiff;

(g) that the appellant/plaintiff appeared before the Assistant

Collector, DDA and made a statement admitting the ownership of the

mother as well as the genuineness and authenticity of the Will and

respondents/defendants No.1 to 3, and predecessor-in-interest of

respondents/defendants No.5 & 6 having become the owners of the

property thereunder;

(h) that on the basis of the aforesaid statements and the Will, the

DDA mutated the property in the names of the respondents/defendants

No.1 to 3, and predecessor-in-interest of respondents/defendants No.5

& 6 on 1st March, 1996;

(i) that the property, to the knowledge of the appellant/plaintiff,

had since then been standing in the ownership of the said

respondents/defendants for 15 years prior to the institution of the suit,

without any objection whatsoever of the appellant/plaintiff;

(j) that the appellant/plaintiff had turned dishonest after 20 years of

the death of the mother.

8. The appellant/plaintiff, within days of filing of the written statement

aforesaid, filed I.A. No.8823/2011 for amendment of the plaint, inter alia

pleading, (a) that she is the youngest sibling; (b) that soon after marriage, she

had settled abroad, though had retained physical possession of one room on

the ground floor and one room on the first floor of the property, where her

belongings remained; (c) that the appellant/plaintiff was always under the

impression that the property was owned by her father and was inherited by

the mother from the father and had only then learnt that it, from the

beginning, was in the name of the mother; (d) that after the demise of the

mother, there were extensive discussions about sharing of the property; (e)

that she totally trusted the respondents/defendants and had also lent a sum of

Rs.25 lakhs to them in the year 1994 (i.e. after the demise of the mother); (f)

that the respondents/defendants had taken her signatures on blank papers on

the pretext of the same being required for common activities and it appears

that the said papers had been misused by placing the same on the file of the

DDA; and, (g) that she had become aware of the alleged Will of the mother

for the first time then only and to incorporate the said facts in the plaint.

9. The respondents/defendants, besides contesting the said application

for amendment, also filed I.A. No.14420/2011 under Order VII Rule 11 CPC

for rejection of the plaint, on the ground that the appellant/plaintiff had not

appropriately valued the same and not paid the appropriate court fees thereon

and on the ground that the appellant/plaintiff having given her no objection

before the DDA to the mutation of the lease of the land underneath the

property in the names of the respondents/defendants No.1 to 3, 5 & 6 on the

basis of the Will of the mother, the suit on the premise that the mother had

died intestate, was false.

10. The learned Single Judge, in the impugned order dated 9 th July, 2013,

first dealt with the application of the respondents/defendants under Order VII

Rule 11 CPC and observing that:

"There is no need for DDA to resort any fabrication. The files appear to have been continuously numbered. There does not appear to be any sign of a tempering. Significantly, there is no averment in the plaint that the plaintiff was asked to sign blank papers. This stand is plainly an afterthought. On the other hand the plaintiff has no satisfactory explanation as to what she was doing all these years after the death of her mother, and after the mutation was carried out in favour of the respondents/defendants No.1 to 4 admittedly to her knowledge. The suit is barred by laches. Further, the Court is satisfied that the plaintiff has not come with clean hand and has suppressed material facts of her having agreed to the mutation of the suit property in favour of the defendants No.1 to 4."

allowed the application holding that the plaint did not disclose any

cause of action. The learned Single Judge consequently dismissed the

application for amendment of the plaint.

11. We are not only unable to agree with the reasoning given by the

learned Single Judge for allowing the application of the

respondents/defendants under Order VII Rule 11 CPC and in the facts

aforesaid, do not find any ground for rejection of the plaint to have been

made out but are also of the view that the order is erroneous also for dealing

first with the application under Order VII Rule 11 CPC, when an application

filed earlier in point of time for amendment of the plaint was pending

consideration. We are of the opinion that once an application for amendment

of the plaint has been filed, even if after the filing of an application under

Order VII Rule 11 CPC, ordinarily the application for amendment of the

plaint is to be considered first and it is only thereafter, if the amendment

were to be refused, that the application for rejection of the plaint as

originally filed, is to be considered; needless to state that if the amendment is

allowed, it has to be seen, whether the ground on which rejection is sought

survives. It was so held by this Court as far back as in Wasudhir

Foundation Vs. C. Lal & Sons 45 (1991) DLT 556 by aptly observing that

Courts allow amendments, not really as a matter of power but in

performance of loftier duty to deliver substantial justice and the ouster of

Order VI Rule 17 CPC will throttle the very life line of Order VII Rule 11

and instead of promoting, would defeat the ends of justice. Alas, neither

counsel cited the law before the learned Single Judge or before us.

12. Faced therewith, the counsel for the respondents/defendants contends

that we may dispose of this appeal by setting aside the order allowing the

application of the respondents/defendants under Order VII Rule 11 CPC and

remand the matter to the learned Single Judge for considering the application

for amendment of the plaint in accordance with the principles applicable

thereto.

13. Though the modus suggested by the counsel for the

respondents/defendants is a possible one but having heard the counsels at

length including on the aspect of amendment, we are of the view that rather

than perpetuating duplicity by allowing the time of the learned Single Judge

also to be spent on the application for amendment, we only should deal

therewith, dismissal thereof also being in any case part of the order

impugned in this appeal.

14. The amendment sought was at a pre-trial stage. It cannot also be

doubted that the amendment sought is necessary for adjudication of the

matter in controversy. The counsel for the respondents/defendants however

contends that the principles of amendment of the plaint are different from the

principles of amendment of the written statement (with which legal principle,

there can be no dispute); that the amendment is in withdrawal of the

admission and changes the very nature and character of the suit and ought

not to be allowed. Reliance in this regard is placed on:

(I) M/s. Modi Spinning & Weaving Mills Co. Ltd. Vs. M/s. Ladha

Ram & Co. AIR 1977 SC 680;

(II) Kali Charan Vs. Ishwar Dass (2002) 61 DRJ 401 (DB);

(III) Vivek Narayan Pal Vs. Sumitra Pal ILR (2010) IV Delhi 499;

(IV) Usha Balashaheb Swami Vs. Kiran Appaso Swami AIR 2007

SC 1663;

(V) Joginder Singh Vs. Gurdeep Singh AIR 2007 Delhi 278;

(VI) Revajeetu Builders and Developers Vs. Narayanaswamy and

Sons (2009) 10 SCC 84;

(VII) Rameshkumar Agarwal Vs. Rajmala Exports Pvt. Ltd. AIR

2012 SC 1887;

(VIII) B.K.N. Pillai Vs. P. Pillai AIR 2000 SC 614;

(IX) The Municipal Corporation of Greater Bombay Vs. Lala

Pancham AIR 1965 SC 1008;

(X) Rajan Suri Vs. State 125 (2005) DLT 433;

(XI) Judgment dated 1st November, 2013 in FAO(OS) No.271/2013

titled Nripendra Kumar Aggarwal Vs. Surender Lal Aggarwal; and,

(XII) Valluri Jaganmohini Seetharama Lakshmi Vs. Kopparthi

Ramachandra Rao AIR 1994 AP 284.

15. We are unable to agree. In the plaint as filed, there is no admission of

the Will of the mother. Rather, it is expressly stated that the mother died

intestate. Similarly, there is no admission in the plaint, of the property

having been mutated in the names of the respondents/defendants or with the

consent of the appellant/plaintiff. The question thus, of withdrawal of any

admission does not arise. The only question for consideration is, whether in

the face of the appellant/plaintiff, while seeking the amendment, not

disputing her signatures on the papers in the record of the DDA, it can be

stated that the appellant/plaintiff has to suffer for not disclosing in the plaint

as originally filed, the factum of having signed papers in blank and giving

the same to the respondents/defendants.

16. We are of the view that no case for denying the amendment on the

said ground is made out. The appellant/plaintiff is not stating that such blank

signed papers were handed over in respect of anything to be done qua the

property with which the suit is concerned. The plea sought to be taken is, of

the signatures on the blank papers having been taken on the pretext of any

common activities of the parties. Such a plea is not of a kind which is not to

be put to trial. It is a different matter that ultimately the appellant/plaintiff

may fail in proving the same. However, the appellant/plaintiff when

confronted with such a defence is entitled to take the plea to meet such

defence and which plea can be adjudicated only after trial and cannot be

rejected at the stage of Order VI Rule 17 CPC only.

17. As far as the contention, of the amendment changing the nature and

character of the suit is concerned, we may notice that the suit as originally

filed was for partition of the property, on the ground of the mother of the

parties having died intestate. The appellant/plaintiff in such a suit, when met

with the defence of a Will of the common predecessor, is entitled to either in

the replication or by way of amendment of the plaint, plead facts constituting

a challenge to the Will. Therefrom, it cannot be said that the nature and

character of the suit has changed.

18. Though the counsel for the respondents/defendants has handed over

the judgments aforesaid but during the hearing has referred only to Lala

Pancham and Usha Balashaheb Swami supra. Lala Pancham is cited to

contend that where there is not the slightest basis in the plaint as originally

stood to make out a case of fraud, amendment to make out such a case has to

be disallowed. It is argued that the plea of the appellant/plaintiff by way of

amendment of her having signed papers in blank and the same having been

used for mutation, is a plea of fraud and since there was no basis therefor in

the suit as originally filed, the said amendment cannot be allowed. However,

reliance placed on the said judgment de hors the facts thereof, is

misconceived. The Supreme Court in that case was concerned with, a suit by

tenants for injunction against demolition by the landlord for the reason of the

tenancy premises having been declared as dangerous. The suit was

dismissed as untenable, since the demolition was at the instance of the

Municipality. At the appellate stage, the plaint was sought to be amended to

plead that the demolition order of the Municipality was fraudulently induced

by the landlord. It was such an amendment which was disallowed holding

that in the suit as originally filed, there was no challenge to the order of the

Municipality. The situation here is entirely different. Similarly, Usha

Balashaheb Swami supra is relied only to contend that the general principles

of amendment of the written statement are different from that applicable to

amendment of the plaint. However, the same does not amount to laying

down that the amendment of plaint can never be allowed.

19. We are therefore of the view that the learned Single Judge, has erred

in dismissing the application for amendment of the plaint without testing the

same on the anvil of the legal principles applicable thereto.

20. Though in view of the aforesaid, the ground of rejection of the plaint

disappears but we may otherwise also observe that the learned Single Judge,

in exercising power under Order VII Rule 11 CPC also, has gone contrary to

the settled principle of law that at the stage of Order VII Rule 11 CPC, the

plaint and only the plaint and the documents filed therewith are to be seen

and not the defence thereto. Reference if any required can be made to the

dicta of the Division Bench of this Court in Texem Engineering Vs.

Texcomash Export 179 (2011) DLT 693. The learned Single Judge has

however held the plaint to be not disclosing any cause of action on the basis

of the defence of the respondents/defendants.

21. Not only so, there is no presumption lest rebuttable presumption as

drawn by the learned Single Judge that there is no need for DDA to resort to

any fabrication. Further, rejection of the plaint is on factual findings of the

mutation in the records of the DDA being genuine and honest inspite of

challenge thereto and which factual finding could not have been arrived at

without trial. Rather, the procedure for mutation adopted by the DDA in the

present case is found to be strange in the experience of at least one of us

(Rajiv Sahai Endlaw, J.) which is that the DDA, for such mutation, insists

upon the affidavits, undertakings and indemnities of all the natural heirs and

does not record statements of the natural heirs on its file as is stated to have

been done in the present case. It is thus to be determined at trial, whether the

statement attributed to the appellant/plaintiff and recorded admittedly not in

the hand of the appellant/plaintiff but in the hand of some official of the

DDA, is of the appellant/plaintiff or not, though bearing the signature of the

appellant/plaintiff. Significantly, the said statement is not on oath as indeed

the said official of the DDA was not entitled and empowered to administer.

The possibility of a blank piece of paper bearing the signature of the

appellant/plaintiff being used for the purpose of recording such a statement

of the appellant/plaintiff, instead of accepted procedure of requiring the

appellant/plaintiff to furnish affidavit and indemnity bond, cannot be ruled

out.

22. The counsel for the respondents/defendants has also contended that

the impugned order was made after examining the file of the DDA

summoned at the instance of the appellant/plaintiff herself.

23. The same would however not make any difference. Undoubtedly, the

counsel for the appellant/plaintiff when faced with the argument of the

counsel for the respondents/defendants of appellant/plaintiff having

participated in mutation, while denying submitted that record of DDA can be

requisitioned. However the same, cannot estopp the appellant/plaintiff from

controverting the said record or explaining the same.

24. Though the counsels have not argued but we may notice that the

learned Single Judge has besides the aforesaid reason, also given the reason

of there being no satisfactory explanation for the delay in filing the suit and

of laches, for rejecting the plaint. The same is however without any

discussion on, which Article of the Schedule to the Limitation Act, 1963

applies. Substantive rights in properties cannot be defeated by laches. A suit

by a co-owner for partition can be defeated on the ground of limitation, only

by pleading ouster and the other co-owner having become exclusive owner

of the property by adverse possession and which is not the plea of the

respondents/defendants.

25. We may further notice that though the respondents/defendants have

also raised the ground of the suit being not appropriately valued for the

purposes of court fees and jurisdiction and appropriate court fees having not

been paid, for rejection of the plaint but neither was the same pressed before

the learned Single Judge and has not been given as a ground for rejection of

the plaint nor has the counsel for the respondents/defendants argued so

before us. We may however refer to the judgment dated 2nd February, 2012

of the Division Bench of this Court in FAO(OS) No.183/2006 titled Sonu

Jain Vs. Rohit Garg as per which also and in view of the averments in the

plaint, the same does not constitute a ground for rejection of the plaint.

26. We accordingly allow the appeal, set aside the order dated 9 th July,

2013 of the learned Single Judge rejecting the plaint as well as the order

declining the amendment sought by the appellant/plaintiff and remand the

suit for decision in accordance with law. Accordingly, the application for

amendment of plaint is allowed and the application for rejection of the plaint

is dismissed.

27. The parties to appear before the learned Single Judge on 7th July,

2014.

28. The suit file if requisitioned in this appeal, be put up before the

learned Single Judge on the same date.

CHIEF JUSTICE

RAJIV SAHAI ENDLAW, J.

MAY 06, 2014 „bs‟..