Rameshwar Pal vs Chander Dass
2014 Latest Caselaw 5053 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CM(M) 356/2013 & CM No.5291/2013

%                                                    10th October, 2014

      RAMESHWAR PAL                                ..... Petitioner
                  Through: Mr. D.S. Dalal with Ms. Sunita,
                           Advocates along with petitioner in
                           person.

                          versus

      CHANDER DASS                                      ..... Respondent

Through: Mr. Ashok Sapra, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This petition under Article 227 of the Constitution of India is filed by

the petitioner who was the defendant in the suit and who is the appellant in

the first appeal, against the order of the first appellate court dated 21.3.2013

whereby an application filed under Order VI Rule 17 of Code of Civil

Procedure, 1908 (CPC) to amend the written statement has been dismissed.

The subject suit was filed by the respondent/plaintiff for possession and

damages and which was decreed by the trial court vide a judgment dated

05.09.2012. As per the operative portion of the judgment dated 05.09.2012,

suit of the respondent/plaintiff was decreed in his favour and against the

petitioner/defendant (appellant in the first appeal) with respect to property

no.G-145, Paschim Vihar, (Industrial Worker Cooperative House Building

Society Limited), New Delhi-110063.

2. The judgment of the trial court dated 05.09.2012 decreeing the suit is

a detailed judgment running into 15 pages and 37 paragraphs and which

decides as many as 8 issues which were framed in the suit, including the

issue claimed by the petitioner/defendant that the suit property was joint

family property because it was purchased from joint Hindu Undivided

Family funds. The issue of HUF funds/HUF property which was framed

was issue no.1 and was framed on 07.09.1998.

3. The suit of the respondent/plaintiff was decreed by the judgment dated

05.09.2012 after evidence was led by both the parties.

4. The petitioner/defendant filed the first appeal against the judgment

and decree of the trial court dated 05.09.2012. It is in this first appeal that

the petitioner/defendant sought amendment of his written statement filed in

the suit in the trial court, and it is that application which has been dismissed

by the first appellate court vide impugned order dated 21.3.2013.

5. By the amendment application, the petitioner/defendant wanted to

bring on record three aspects:-

(i) Petitioner/defendant wanted to bring on record the factum with

respect to filing of a suit by the sister of the parties Smt. Krishna in the

Original Side of this Court, CS(OS) No.218/2013 titled as Krishan Vs.

Shanti & Ors, and which was a suit for partition, permanent injunction and

declaration. The filing of the suit was pleaded as a subsequent event and the

details of the suit was sought to be included by amending the written

statement because the said suit included the suit property and in the suit Smt.

Krishna pleaded that the property was HUF/joint family property. It may be

added here itself that now the present petitioner stands transposed as the

plaintiff in the suit pending in the original side of this Court and Smt.

Krishna has been made defendant no.5.

(ii) The second ground which is sought to be added by means of

amendment in the written statement is that a status quo order dated

15.3.2013 has been passed by this Court in the CS (OS) No. 218/2013 filed

by Smt. Krishna whereby both the parties in the present petition i.e the

plaintiff and the defendant in the present suit, have been directed to maintain

status quo with respect to the possession of the suit property.

(iii) Thirdly, by the amendment the petitioner/defendant wants to add the

plea that the subject suit is bad for non-joinder of the necessary parties being

the other brothers and sisters, of the parties to the suit.

6. In my opinion, there is no illegality in the impugned order dismissing

the application for amendment and the reasons are contained hereinafter.

7. In my opinion, nothing will turn upon the factum with respect to the

sister Smt. Krishna filing the suit in the Original Side of this Court being

CS(OS) No.218/2013 in which it is alleged that the suit property is an HUF

property in as much as the present suit is only a suit between the

respondent/plaintiff and the petitioner/defendant whereby possession is

asked by the respondent/plaintiff from the appellant/defendant/petitioner and

no possession is claimed from Smt. Krishna or any other person. The fact

that even the sister Smt. Krishna claims that the suit property is an HUF

property, cannot mean that the amendment of the written statement is

required to be allowed to bring on record factum of filing of the suit by Smt.

Krishna because the issue with respect to the suit property being an HUF

property, and allegedly not the personal/acquired property of the plaintiff,

was already an issue which was framed in the present suit and which issue

has been decided against the appellant/petitioner/defendant after trial.

Therefore, merely because some other sibling pleads the property to be as

an HUF property will not mean that that aspect is relevant to be referred to

by means of the written statement in the present suit for possession filed

against the petitioner/defendant. If some third person claims a right in the

suit property, and with respect to which a suit is filed, that suit will be

decided in accordance with law, but filing of the suit by another sibling

cannot interdict proceedings in the subject suit for possession. Also merely

because the present petitioner has now got himself substituted as a plaintiff

in that suit, will not make any difference to the status of the subject suit in

view of the Explanation I to Section 11 CPC which provides that there can

be simultaneous trial in two suits involving common issues. Once there is

finality to the present suit proceedings, the decision in the present suit, and

which has been decreed in favour of the respondent/plaintiff, and with

respect to which a first appeal is filed, will operate as res judicata between

the parties with respect to the issue as to whether the suit property is an HUF

property/joint Hindu family property. For the sake of completion of

narration, I must note that as already stated above that Smt. Krishna has to

be taken as having withdrawn the partition suit because Smt. Krishna is now

defendant no.5 in that suit pending in the Original Side of this Court wherein

the petitioner was transposed as plaintiff, on the request made by the

petitioner herein in that suit and hence the prayer made to amend the written

statement will not operate for pleading the filing of the other suit by the

other sibling.

8. Therefore in my opinion reference in the written statement to the other

suit, and in which now the present petitioner is the plaintiff is not required,

by amending the written statement, because, the issue raised in that suit of

whether the suit property is the individual property of the

respondent/plaintiff or an HUF property is already an issue in the present

suit proceedings, and this issue has already been decided in favour of the

respondent/plaintiff and against the petitioner/defendant, and as stated

above, the decision in this present suit will operate as res judicata between

the parties.

9. The second ground sought to be added of a status quo order being

passed in the suit CS(OS) No.218/2013 for partition to maintain the status

quo as regards possession is of no consequence as an interim order does not

confer any final rights on the parties and nor can that interim order change

the decision in another/present suit which would operate as res judicata

between the parties. The only effect of the interim order in the suit filed by

Smt. Krishna, and which is now being pursued by the petitioner as plaintiff,

would be that the respondent/plaintiff may not be able to execute the decree

for possession if that interim order for maintaining status quo of possession

is not vacated or varied by the Court hearing CS(OS) No.218/2013.

Therefore, there is no requirement with respect to adding a plea in the

written statement of passing of interim orders because this aspect will not be

relevant for determining of issues in the present suit and at best will be an

issue only when the decree for possession is sought to be executed by the

respondent/plaintiff.

10. The third ground which is sought to be incorporated by the

amendment in the written statement that the suit is bad for non-joinder of

necessary parties because the other siblings ought to be made parties

inasmuch as the suit property was an HUF property, the same is an aspect

which cannot be added by allowing an amendment in written statement at

the stage of appeal after the issue has already been decided against the

petitioner/defendant and in favour of the respondent/plaintiff holding that the

suit property is not an HUF property and the property is the individual

property of the respondent/plaintiff in whose favour a Conveyance Deed has

been executed and registered by the Delhi Development Authority.

11. Finally, I would like to note that the subject suit was filed more than

17 years back. If amendment is allowed, then the suit will be thrown back

by 17 years causing grave and irreparable prejudice to the

respondent/plaintiff. Also, as already stated above, the subsequent event of

the filing of the suit by Smt. Krishna and now which is pursued by the

petitioner/defendant, will not change the decision in the present suit because

the judgment in the present suit will operate as res judicata on the issue

between the parties herein as to whether the suit property is an individual

property of the respondent/plaintiff or the same is an HUF property.

12. Before concluding this judgment, I would like to mention that at the

commencing of hearing I had put it to the counsel for the petitioner that the

petitioner has liberty to challenge the impugned order disallowing the

amendment of the written statement in an appeal if the appellant does not

succeed in the first appeal, by invoking of Section 105 CPC in the second

appeal which the petitioner/defendant may file, but the counsel for petitioner

insisted that the present petition is being pressed and the same be decided in

terms of Article 227 of the Constitution of India.

13. Powers under Article 227 of the Constitution of India are

discretionary and extraordinary powers. Powers under Article 227 of the

Constitution of India are meant to be exercised to prevent injustice and not

to cause injustice. If the impugned order dismissing the amendment

application seeking amendment of the written statement is set aside, not only

unnecessary aspects will be brought in, but also serious and grave prejudice

will be caused to the respondent/plaintiff by setting the clock back by 17

years and, that too for no purpose.

14. In view of above it is clear that the application of amendment of the

written statement which has been dismissed by the impugned order, as also

the present petition, are an abuse of the process of law by a defendant who is

making all efforts to somehow or the other delay the decision in the suit for

possession of the suit property filed by the respondent/plaintiff and who has

already succeeded in the suit for possession. Accordingly, the present

petition is dismissed with costs of Rs.20,000/- in favour of respondent

no.1/plaintiff, and the payment of which costs shall be a condition precedent

for the petitioner/defendant to continue with the appeal before the first

appellate court.

VALMIKI J. MEHTA, J OCTOBER 10, 2014 srb