Delhi High Court
Sh.Virender Singh Dhaka vs Sh.Sidharath Balupuri & Ors. on 17 September, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 738/2012
% 17th September, 2014
SH.VIRENDER SINGH DHAKA ......Petitioner
Through: Mr. Udayan Jain and Mr. Amit
Saxena, Advocates.
VERSUS
SH.SIDHARATH BALUPURI & ORS. ...... Respondents
Through: Mr. Rajesh Yadav and Ms. Ruchira,
Advocates for R-1 and 2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By the present petition under Article 227 of the Constitution of
India the petitioner/plaintiff impugns the order of the trial court dated
10.4.2012 by which the trial court has dismissed an application under Order
VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) filed by the
petitioner/plaintiff for amendment of the plaint. The existing suit plaint was
a suit for permanent and mandatory injunction wherein the
petitioner/plaintiff claimed to be in possession of the suit land and sought
injunction orders against his dispossession. The suit property is an area of
CMM 738/2012 Page 1 of 5
1300 sq. yds forming part of 4 bighas and 12 biswas of land in Khasra No.
32/19, Village Devli, Tehsil Mehrauli, known as Sainik Farm, New Delhi.
By means of the amendment petitioner/plaintiff wants to add facts with
respect to his illegal dispossession during the pendency of the suit and that
the documentation which was got executed from him on 28.7.2008 bearing
the dates of 29.7.2008 and 30.7.2008 are illegal and void documents having
been executed by coercion and pressure etc.
2(i). It is necessary at this stage to observe that if the subsequent
documentation dated 29.7.2008 and 30.7.2008 are correct documents, then
the suit itself was to be withdrawn, and for which purpose, an application
under Order XXIII Rule 1 CPC was made, but, that application as per the
statement made on behalf of the petitioner/plaintiff before me today has been
allowed to be withdrawn, and it is because of this position that this Court is
examining the issue as to whether the amendments as prayed for by the
petitioner/plaintiff should or should not be allowed, and which would not be
if the application under Order XXIII Rule 1 CPC was still pending.
(ii) Once the application under Order XXIII Rule 1 CPC is allowed
to be withdrawn, then, the suit is not withdrawn, and consequently, the
petitioner/plaintiff is entitled to enquiry with respect to his allegations that
CMM 738/2012 Page 2 of 5
the documentation dated 29.7.2008 and 30.7.2008 have been got executed
by coercion, force etc. The position would have been different if the
application under Order XXIII Rule 1 CPC stating facts with respect to the
subsequent documentation dated 29.7.2008 and 30.7.2008 of the plaintiff
giving up his rights/claims/interest in the suit property on receiving the
consideration of Rs.36,00,000/- (Rupees Thirty Six Lacs only) by the
defendant no.5 Mr. Ravi Tushir/ attorney of defendant no.2, would not have
been allowed to be withdrawn, and if that was so these amendments which
are now sought would have been malafide and misconceived amendments,
however, once the application under Order XXIII Rule 1 CPC allegedly filed
by the petitioner/plaintiff is allowed to be withdrawn because the
petitioner/plaintiff stated that that application was a result of pressure,
coercion and fraud and against his wishes and the application under Order
XXIII Rule 1 CPC was never moved voluntarily, the facts either with respect
to the subsequent documentation and receipt of consideration of Rs.36 lacs
or of whether rights/claims/interest in the suit property have been given up
by the petitioner/plaintiff are once again at large subject to enquiry.
3. I may note that in an application if filed under Order XXIII Rule 3
CPC, if one party disputes the compromise which has been entered into
CMM 738/2012 Page 3 of 5
between the parties in writing and signed, then it is the court before whom
the application under Order XXIII Rule 3 CPC has been moved which has to
decide the issue as to whether or not there is a lawful compromise in writing
and signed by the parties. In fact, filing of a suit is barred with respect to
these issues of whether or not an agreement in writing and signed is or is not
entered into between the parties lawfully, because such issues are to be
decided in court before whom the application under Order XXIII Rule 3
CPC is filed and not by a separate suit vide Order XXIII Rule 3A. Similar
principles will apply even to an application under Order XXIII Rule 1 CPC
wherein the petitioner/plaintiff states that his consent was not voluntarily
obtained to the documentation of transfer of rights in the suit property as
also to the filed application under Order XXIII Rule 1 CPC, however, no
trial was held on this aspect possibly because there was no such request
made by the defendants in the suit, and consequently, the application under
Order XXIII Rule 1 CPC alleged to have been filed by the
petitioner/plaintiff was allowed to be withdrawn. As already stated above,
once allegations of the petitioner/plaintiff with respect to the subsequent
documentation and giving up rights in the properties are not to be examined
before the trial court, it is then to be held that the petitioner/plaintiff denies
CMM 738/2012 Page 4 of 5
transfer of rights pursuant to the documentation dated 29.7.2008 and
30.7.2008.
4. It is trite that at the time of deciding an application for
amendment, merits of the matter are not decided and truth and falsity of the
allegations cannot be decided at that time for allowing or disallowing of the
amendment application , more so, in facts of the case such as the present.
5. In view of the above, petition is allowed and the impugned order
dated 10.4.2012 is set aside. Amendment application filed by the
petitioner/plaintiff will be allowed except para 24-A which is no longer
necessary because application under Order XXIII Rule 1 CPC has already
been withdrawn by the petitioner/plaintiff. Parties are left to bear their own
costs.
SEPTEMBER 17, 2014 VALMIKI J. MEHTA, J.
ib
