Sh. Yudhvir Singh vs Sh. Dharamvir & Ors
2014 Latest Caselaw 5047 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Pronounced on: 10th October, 2014

+      IA No.9303/2013 in CS(OS) 2083/2008
       SH. YUDHVIR SINGH                                         ..... Plaintiff
                     Through:            Mr. Akshay Makhija, Ms. Mahima
                                         Bahl, Mr. Rohitendra Deb and Ms.
                                         Chandni Mehra, Advocates

                               versus

       SH. DHARAMVIR & ORS                                  ..... Defendants
                    Through:             Mr. Dharamveer Singh Dagan,
                                         Advocate for D-1.
                                         Mr. Dinesh Kumar, Advocate for D-2.
                                         Mr. Sunil K. Mittal, Advocate, Mr.
                                         Vipin K. Mittal, Advocate & Mr.
                                         Anshul K. Mittal, Advocate for D-3.

       CORAM:
       HON'BLE MR. JUSTICE G.P. MITTAL


G.P. MITTAL,J.

IA No.9303/2013 (Order VI Rule 17 CPC) by Plaintiff

1. This suit for permanent injunction was filed by the Plaintiff initially

against Defendants no.1 to 3 with the averments that the Plaintiff is

absolute owner of property measuring 3157 sq. yds comprising Khasra

no.263, Village Chattarpur, New Delhi which was purchased by the

Plaintiff from one Yadram on the basis of various documents

including Agreement to Sell and General Power of Attorney. Entire

sale consideration having been paid to the earlier said Yadram, the

physical possession of the suit property and also the original

documents executed by one Bhagwat Singh in favour of Yadram was

also handed over to the Plaintiff. Defendants no.1 and 2 are the sons

of said Bhagwat Singh. It is the case of the Plaintiff that on

24.09.2008, it transpired that Defendant no.3 in conspiracy and at the

behest of Defendants no.1 and 2 visited the suit property and wanted

to grab the suit property. Again, an attempt was made by the

Defendants on 28.09.2008 to take possession of the suit property

forcibly.

2. By an order dated 01.10.2008, an ex parte interim injunction was

granted in favour of the Plaintiff and against the Defendants

restraining them from taking forcible possession of the suit property.

It is further the case of the Plaintiff that in violation of the order dated

01.10.2008, the Defendants took possession of the suit property

forcibly. Defendants no.1 and 2 by separate written statement have

denied the averments made in the plaint. It has been denied that

Bhagwat Singh sold land measuring 1200 sq. yds. to some other

person whereas land measuring 3500 sq. yds. after leaving 10 ft. wide

road was sold to one Yadram.

3. Defendant no.3 in his written statement took up a plea that the suit has

been filed by the Plaintiff in collusion with Defendant no.1. It has

been stated that Defendant no.3 is in possession of 1500 sq. yds of the

suit property and the remaining of the property is in possession of

other persons who have not been impleaded as a party. Since the

property was claimed by Defendant no.3 from Yadram, by an order

dated 12.09.2011 he was ordered to be impleaded as a party.

4. In his written statement, Defendant no.4 stated that he purchased 3500

sq.yds bearing Khasra No.263 from Bhagwat Singh (father of

Defendants no.1 and 2) on 27.11.1990 on the basis of an Agreement to

Sell, Power of Attorney and other documents and he had been handed

over the possession by Bhagwat on paying entire sale consideration.

He gave details of transfer of various pieces of land to certain persons

as stated in para 2 of the preliminary submission. Defendant no.4

specifically denied having sold land measuring 3157 out of Khasra

no.263, Village Chattarpur, New Delhi to the Plaintiff.

5. At this stage, this Court would not go into the questions whether the

Plaintiff was in possession of the suit property as claimed, whether he

had really been sold the suit land by Yadram, Defendant no.4 and

whether he was in possession of the suit property on the date of filing

of the suit. The Plaintiff seeks amendment of the plaint stating that

Defendant no.3 forcibly took possession of the suit property sometime

between 04.10.2008 to 10.10.2008. It is further averred that

Defendant no.3 claims to have purchased land measuring 1500 sq. yds

out of suit property from Yadram by an agreement to sell dated

10.09.2008 and also claims possession from 10.09.2008. The Plaintiff

wants to make all these averments by amendment and now seeks a

decree of declaration also.

6. The amendment sought has been opposed by filing written reply by

Defendants no.1 and 3 primarily on the ground that the averments

made in the application are false and that the amendments sought are

not necessary for just decision of the controversy between the parties.

7. It may also be noted that Defendant no.1 denies that Defendant no.2 is

his sister whereas Defendant no.2 admits such relationship between

the two. Defendant no.3 has also stated that by virtue of the

amendment sought, the Plaintiff is trying to wriggle out of the legal

admissions made in pleadings and the amendments sought are barred

by limitation as this application for amendment has been moved on

28.05.2013.

8. It is well settled that while dealing with an application seeking

amendment of pleadings, the Court is not to go into the truthness or

falsity of the averments which are sought to be incorporated because

that can be done only during trial.

9. The learned counsel for the Plaintiff refers to Anathula Sudhakar v. P.

Buchi Reddy & Ors., (2008) 4 SCC 594 in support of his contention

that the Plaintiff can seek amendment of the plaint to seek a decree of

declaration where a suit initially was filed for injunction. In para 14 of

the report, the Supreme Court has held as under:

"14. We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintiff's title raises a cloud on the title of the plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that the defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raise a serious dispute or cloud over the plaintiff's title, then there is a need for the plaintiff, to amend the plaint and

convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title."

10. The learned counsel refers to Nisha Somaia v. Outlook Publishing

(India) Ltd. & Ors., 149(2008) DLT 734 that pre-trial amendments are

freely allowed and that amendments can be allowed even after the

statutory period of limitation. In Nisha Somaia (supra), a learned

Single Judge of this Court referred to B.K.N. Narayana Pillai v. P.

Pillai & Anr., AIR 2000 SC 614 and in paras 9 to 11 it was held as

under:

"9. The provision of Order VI Rule 17 of the Code of Civil Procedure confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. It is a settled position of law that the Courts while deciding a prayer for amendment should not adopt a hyper-technical approach. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Such of the amendments that are directed towards putting forth and seeking determination of the real questions in controversy between the parties ought to be permitted to be carried out.

10. The general rule is that pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof since in the former case, it can be

assumed that the defendant would not be prejudiced as he would have the complete opportunity to counter the stand of the plaintiff/applicant post amendment. In cases where amendment is sought at a post-trial stage however, the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case.

11. The Supreme Court in the case of B.K.N Pillai (supra) after referring to a number of decisions, held as under: "3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt a hyper technical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled- for multiplicity of litigation."

In para 4 of the same judgment the following passage from the judgment in A.K. Gupta and Sons Ltd. (supra) was quoted:

"The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred: Weldon v. Neal. But it is also well recognized that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: See Charan Das v. Amir Khan (AIR 1921 PC 50) and L.J. Leach and Co.

Ltd. v. Jardine Skinner and Co.(AIR 1957 SC 357)"

11. The learned counsel for the Plaintiff(applicant) also relies on Sampath

Kumar v. Ayyakannu & Anr., (2002) 7 SCC 559 wherein it was held

that amendment should be allowed to avoid multiplicity of the suit and

that where only nature of relief is changed while basic structure of the

suit remains the same, the amendment must be allowed. In paras 7

and 9, the Supreme Court observed as under:

"7. In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial court, it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff's revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings.

xxx xxx xxx

"9. Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the

period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In the former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No straitjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment."

12. The learned counsel for Defendant no.3 refers to Revajeetu Builders &

Developers v. Narayanaswamy & Sons & Ors., JT 2009(13) SC 366 to

urge that the Court should refuse amendments if a fresh suit on the

amended claims would be barred by limitation on the date of moving

application for amendment of the plaint. The learned counsel for

Defendant no.3 also relies on T.N. Alloy Foundry Co. Ltd. v. T.N.

Electricity Board & Ors., (2004) 3 SCC 392 wherein relying upon L.J.

Leach and Cop. Ltd. v Jardine Skinner and Co., AIR 1957 SC 357, it

was reiterated that the Court would as a rule decline amendment if a

fresh suit on the amended claim would be barred by limitation.

13. In Revajeetu Builders & Developers(supra), in para 67, the Supreme

Court culled out the principles which should be taken into account

while dealing with an application for amendment:

"67. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bona fide or mala fide;

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) 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."

14. The amendments, according to the Plaintiff, are based on subsequent

events. At this stage, it will be difficult to say that the amendment

sought are mala fide. The amendment to include relief which are

barred by limitation are usually not allowed as it defeats vested right

of defence in favour of the Defendant. In the instant case, the Plaintiff

has given detailed facts as to how he was entitled to the relief of

perpetual injunction and has also pleaded documents in support of his

claim. Some documents alleged to have been executed by Defendant

no.4 in favour of Defendant no.3 have been propounded by Defendant

no.3. In para 10.3 of the application, the Plaintiff has alleged as to

how the cause of action had arisen for seeking additional relief during

the pendency of the suit. It will be premature to give any finding

whether the relief of declaration sought by the Plaintiff on the date of

making the application will be barred by limitation. Since the

amendments sought are to avoid multiplicity of the proceedings, this

Court is of the considered view that the same should be allowed.

However, if Defendants are able to show that the relief sought on the

date of making the application were barred by limitation, their vested

rights cannot be defeated.

15. In view of this, the amendments sought are allowed with the rider that

the amended relief shall be deemed to have been claimed on the date

of moving the application i.e. 28.05.2013 and the amendments

permitted shall be without prejudice to the Defendants' right to raise

appropriate plea including that the relief sought is barred by limitation.

16. The application is allowed in above terms.

17. The amended plaint filed by the Plaintiff is ordered to be taken on

record. Written statement to the amended plaint shall be filed by the

Defendants within four weeks and replication to the written statement

to the amended plaint shall be filed by the Plaintiff within four weeks

thereafter.

CS(OS) 2083/2008

18. List before the Joint Registrar for completion of pleadings and

admission/denial of documents on 23.12.2014.

(G.P. MITTAL) JUDGE OCTOBER 10, 2014 pst