Harish Relan vs Kaushal Kumari Relan & Ors
2015 Latest Caselaw 5503 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+             RFA(OS) 162/2014 and CM No.21092/2014

                                   Reserved on : 1st May, 2015
%                           Date of Decision: 3rd August, 2015
       HARISH RELAN                             ..... Appellant
                         Through :   Mr. Sameer Nandwani and
                                     Mr. Manish Kaushik,
                                     Advs.
                         versus

       KAUSHAL KUMARI RELAN & ORS... Respondents
                    Through : Mr. Vivek Singh and Mr.
                              Ashutosh Jha, Advs.1 to 3
                              along with R-2 and 3 in
                              person.
                              Mr. Sunil Mittal and Ms.
                              Parul Malik, Advs. for R-5
                              & 6.
                              Mr. Harshbir Singh Kohli
                              and Mr. Dinesh Kumar,
                              Advs. for R-7.
       CORAM:
       HON'BLE MS. JUSTICE GITA MITTAL
       HON'BLE MR. JUSTICE P.S.TEJI

                         JUDGMENT

GITA MITTAL, J.

"No litigant has a right to unlimited drought on the court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived or frivolous petitions!"

[Buddhi Kota Subbarao (Dr.) v. K. Parasaran & Ors., (1996) 5 SCC 530]

1. The appellant has filed the present appeal challenging the order dated 28th November, 2014 passed in CS(OS)No.724/2006. A composite order dismissing I.A.No. 8296/2014 filed by the appellant/plaintiff under Order VI Rule 17 of the Code of Civil Procedure ('CPC' for brevity) and thereafter holding that the suit filed by the plaintiff was barred by time resulting in rejection of the plaint on the ground of limitation was passed. As a consequence, the interim injunction order subsisting in favour of the plaintiff appellant came to be vacated.

2. Most of the respondents in this appeal are senior citizens. The respondent no.1 is around 90 years of age, completely bed ridden and could come to court only in a wheel chair, assisted by her daughters - the respondent nos.2 and 3. The respondent no.5 is stated to be in his eighties, suffering from an eye problem who also needs the assistance of an attendant. The respondent no.6 who was 69 years of age at the time of filing his written statement in October, 2006 would be about 78 years at present. These circumstances have compelled us to address the facts and circumstances in this unfortunate litigation in some detail to place the material in its entirety on record so as to facilitate finality in adjudication.

3. For the purposes of convenience, we are referring to the nomenclature as assigned in the suit to the parties.

4. The litigation relates to the property no.N-18, Jangpura Extension, New Delhi (referred to as the ‗suit property' hereafter).

5. The material facts giving rise to this unfortunate litigation are undisputed and are briefly set down hereafter :

5.1. Late Shri Aishi Lal Relan was allotted leasehold rights by the President of India in a plot in Block-N bearing no. 18 situated in the Jangpura Extension, New Delhi which was formalised by a lease deed dated 14th December, 1960.

5.2. From the marriage of Late Shri Aishi Lal Relan and Smt. Kaushal Kumari Relan (respondent no. 1 herein/defendant no.1 in the original suit), they were blessed with the four offsprings, detailed as below :

(i) son - Raminder Kumar - (defendant no. 2) who expired during pendency of the suit;

(ii) daughter - Promila Kapoor - (respondent no. 3 herein/defendant no. 3)

(iii) son - Harish Relan - (appellant herein/plaintiff)

(iv) daughter - Pooja Relan - (respondent no. 2 herein/defendant no. 4 in the suit) 5.3. Shri Aishi Lal Relan expired on 25th September, 1989 at New Delhi, survived by his widow and children i.e. five legal heirs.

5.4. In the year 1984, the defendant no.3 Promila Kapoor got married and started residing with her husband at her matrimonial home till 1996 when she shifted to the United States of America with her family.

5.5. The plaintiff Harish Relan got married in the year 1994 and shifted out of the suit premises to rented accommodation at B-1/59 (Opposite Mandir) Lajpat Nagar-I, New Delhi. 5.6. From the plaintiff's documents, it is revealed that defendant no.3 Promila Kapoor, vide General Power of Attorney dated 27th August, 1999 executed at Springfield PA, USA duly stamped in

India, appointed her sister, the defendant no.4 Pooja Relan, as her attorney to execute a relinquishment deed on her behalf relinquishing all rights in the said property in favour of their mother Smt. Kaushal Kumari Relan.

5.7. On 18th November, 1999, the plaintiff as well as the defendant nos. 2 to 4 (all the children of Late Shri Aishi Lal Relan and Smt. Kaushal Kumari Relan) executed a registered relinquishment deed (Exh.P-1) whereby each of them respectively relinquished their 1/5th share in the suit property unconditionally and absolutely in favour of their mother Smt. Kaushal Kumari Relan clearly stating in the relinquishment deed that, as a result of the demise of Shri Aishi Lal Relan, 1/5th share in the plot had devolved upon each of the executors as legal heirs of the allottee. These legal heirs including Shri Harish Relan unequivocally declared that "the executor(s) wishes/wish to relinquish his/their share in the plot as mentioned herein above in favour Smt. Kaushal Kumari Relan the releasee(s) who is/are also the legal heirs of the allottee." The plaintiff and defendant nos.2 to 4 also declared unconditionally in the deed that they have ―no claim, right or interest in the property‖.

5.8. It appears that there was a mistake in the relinquishment deed to the effect that instead of noting that Promila Kapoor (64 years) was represented by her attorney and sister Pooja Relan (unmarried, aged 51 years), the relinquishment deed suggested that Promila Kapoor was executing the deed in person. Consequently, a Rectification Deed dated 30th March, 2000 (Exh.P-3) was executed by the plaintiff Harish Relan as well as his siblings on 30th March, 2000 clarifying the position and

effecting this correction. The plaintiff reiterated the relinquishment in the rectification deed in the following terms :

"2. That the same is hereby rectified and modified as aforesaid in the Relinquishment Deed and the Relinquishment Deed shall remain in full force and effect."

It is an admitted position that these two registered documents were executed voluntarily without any kind of force or pressure. The plaintiff never asserted any claim to the contrary. 5.9. As a result of the above, on 16th May, 2000, the Land & Development Office of the Ministry of Rehabilitation & Urban Development effected substitution of the name of the defendant no. 1 as the owner of the property in their records. 5.10. Based on the above relinquishment deed and rectification deed, a Conveyance Deed dated 4th January, 2011 (Exh.P-2) in favour of Smt. Kaushal Kumari Relan-defendant no.1 was executed by the President of India converting the leasehold rights in the suit property into freehold rights and conveying absolute and exclusive right, title and interest in the suit property in her favour. As a result, Smt. Kaushal Kumari Relan became the undisputed absolute and exclusive owner of the said plot of land. Evidencing his no objection to the transfer, Shri Harish Kumar Relan, the plaintiff, was a witness on this conveyance deed. 5.11. It is an admitted position that Smt. Kaushal Kumari Relan thereafter raised new construction of the property which was completed at her instance in the year 2000. On completion of the construction, the plaintiff states in the plaint, that he requested the defendant nos. 1 to 4 to allow him to reside in the first floor of the

property. But the defendant nos. 1 to 4 told the plaintiff that the loan taken by the defendant no.1 for construction of the property had to be repaid by letting out the first floor of the property which would fetch a better rent and that he could occupy the third floor of the property. The plaintiff submits that he therefore, shifted to the third floor of the house wherein he was living since the year 2000.

5.12. In her application for vacation of stay being IA No. 2022/2014, the defendant no. 1 has contended that the plaintiff was permitted to occupy the premises only for 4-6 months as the plaintiff set up the ruse that his landlord was forcing him to vacate the property; and he was having his daughter's examination and was unable to locate a suitable property for his family and that the plaintiff had promised to vacate the third floor property as soon as he finds a rental premises within 4-6 months. For the purposes of the present consideration, we have merely noted the defendant no.1's plea but the same cannot impact the present consideration. 5.13. Though the plaintiff disputes the reason why he was permitted to occupy the premises, however, the plaintiff admits that the defendant no. 1 permitted him to occupy the third floor. The plaintiff clearly states that he "requested defendant nos.1 to 4 to take possession of the first floor of the property". He thus admits occupancy of the property only with the permission of his mother.

5.14. It is the case of the plaintiff that, thereafter, the defendant no.1 dealt with the property as owner and transferred different portions to third parties.

5.15. The plaintiff has filed on record the registered sale deed dated 4th March, 2002 (Exh.P-4) executed by the defendant no. 1 in favour of Shri Prem Nath Mehra - the defendant no.7 whereby the second floor of the suit property was absolutely conveyed to him. The plaintiff himself has appeared before the Sub-Registrar of documents on 4th March, 2002 and signed this sale deed as a witness which was executed and registered on that date in his presence.

5.16. This sale deed, a plaintiff's document, contains the recital that even earlier, on 7th November, 2000, the defendant no.1 had entered into an agreement to sell of the second floor of the suit property in favour of Sh. Prem Nath Mehra - respondent no.6 herein/defendant no. 7 in the suit, for a total consideration of Rs.9 lakhs. The sale deed also records that this consideration for the property was paid by the defendant no. 7 vide a cheque of 15 th April, 2000 for the sum of Rs.1 lakh and the balance, on the 7 th of November 2000 by a cheque for the sum of Rs.8 lakhs. Physical possession of the property was handed over pursuant to the agreement to sell in 2000! Clauses 4 and 5 of the sale deed deserve to be extracted in extenso and read as follows :

―4. That the VENDOR shall be liable to pay house tax, electricity charges and water charges in respect of the IInd Floor of property No.N-18, Jangpura Ext. New Delhi, sold herein, upto Nov. 2000 and thereafter the same shall be paid by the VENDEE herein. The parties hereto agree that the VENDOR shall reimburse any demand, which may be raised for the period prior to Nov. 2000, but after the execution of this deed.

5. That the VENDOR has already handed over the vacant peaceful possession of the IInd Floor unto the VENDEE herein."

(Underlining by us)

5.17. The defendants have stated that the defendant no.1 also executed a registered general power of attorney on 19th November, 2000 appointing the son of the defendant no. 7 as her attorney to deal with the second floor portion. This power of attorney was also signed by the plaintiff - Sh. Harish Relan as a witness. In support of his identity, the plaintiff had produced his driving license no. DL 97070503 before the sub-registrar of documents.

5.18. Having witnessed all these documents, Harish Relan was fully aware of the entire transaction relating to the second floor between defendant nos.1 and 7 and the conveyance and handing over the physical possession of the second floor absolutely and exclusively to him.

5.19. Let us now examine the second transaction so referred to by the plaintiff. As per the plaint, in the year 2002, the defendant no. 1 let out the first floor of the premises to one Mr. Banerjee as director of M/s JK Tyres for a period of 2 years. Thereafter on 3rd December, 2004, (wrongly mentioned as 16th August, 2005 by the plaintiff in para 13 of the plaint), the first floor was sold to Sh. Nek Chand Sarin - defendant no. 6. The sale deed dated 3rd December, 2004 (Exh.P-5) has also been placed by the plaintiff on record. Shri Nek Chand Sarin is an 81 year old person having retinitis pigmentosa who moves only with the assistance of an attendant. It is undisputed that before the purchase on 3rd

December, 2004 (Exh.P-5), the defendant no. 6 visited the premises several times. The plaintiff, who has to use the staircase from Shri Sarin's first floor, to access the third floor occupied by him, could not have avoided knowledge of occupation by the defendant nos.6 and 7 and the transfers of the first or the second floors when they were effected.

5.20. We now come to the third transfer effected by Smt. Kaushal Kumari Relan. By a registered sale deed dated 16th August, 2005 (Exh.P-6), the defendant no. 1 sold the ground floor of the property to Sh.A.B. Dixit-defendant no.5/respondent no. 4. The sale deed records the payment of the full consideration as well as the factum of physical possession of this portion of the suit property having been handed over to the defendant no.5. 5.21. Long after all the above transactions, On 7th November, 2005, Sh. Harish Relan caused a legal notice (Exh.P-7) to be served upon Smt. Kaushal Kumari Relan/defendant no. 1 contending for the first time ever that the relinquishment deed of the vintage of 1999 had been executed in her favour with the ―understanding that mutation of the property may be noted in your name and thereafter the property would be handed over back to my client (Harish Relan) as he is also one of the legal heirs to the estate of Late Shri Aishi Lal‖. The plaintiff contended in the legal notice that he had been misled and his trust had been broken by ―selling the ground, first and second floor of the property‖ and that the defendant no.1 had not ―paid him any share in the sale proceeds of the property‖. The legal notice was necessitated for the reason that it had ―come to the knowledge‖ that ―sale proceeds of the part of the property had been spent"

and that the defendant no. 1 was going to ―dispose of the basement and the third floor to a third party‖ which was contrary to the ―promise made to my client at the time of my client‟s relinquishing his share‖. Through the legal notice, the plaintiff called upon the defendant no. 1 to ―pay the legal share of my client procured from the sale of the part of the abovementioned property and not to alienate or create any third party interest in the remaining property which is in possession of my client and to transfer the same back to my client along with the share of my client from the sale proceeds, already with you, within 15 days from the date of receipt of this notice‖.

5.22. Contrary to the demand made in the legal notice, on 21st April, 2006, the plaintiff filed the suit being CS(OS) No.724/2006 being a suit for partition/declaration/permanent injunction making the following prayers :

"a) Property bearing no. N-18, Jungpura Extension, New Delhi-110014 may please be ordered to be partitioned by giving 1/5th share each to plaintiff and defendant nos. 1 to 4

b) Preliminary decree for declaration may please be ordered to be passed declaring Relinquishment Deeds dated 18.11.99, Rectification Deed dated 30.3.2000 and Sale Deeds dated 4.3.2002, 3.12.2004 and 16.8.2005, to be null and void.

c) A decree for permanent injunction be also passed in favour of the plaintiff and against defendants restraining the defendants from interfering in the possession of the plaintiff in the third floor of property bearing N-18, Jungpura Extension, New Delhi and third party interest in the property bearing N-18, Jungpura Extension, New Delhi.

d) Cost of the application be also awarded.‖

5.23. Apart from his mother, brother and two sisters who were impleaded as the defendant nos. 1 to 4 noted above, Harish Relan impleaded Sh.A.B. Dixit (owner of ground floor) as defendant no.5; Sh. Nek Chand Sarin (owner of the first floor) as defendant no. 6 and Sh.P.N. Mehra (owner of the second floor) as defendant no.7 in the suit. The first written statement came to be filed by defendant no. 6 on 1st July, 2006 and the second by defendant no.5 on the 6th September, 2006 and the third by defendant no. 7 on 5th October, 2006. The plaintiff filed replications to the written statement of defendant nos. 5, 6 and 7 on 16 th November, 2006. Affidavits of the plaintiff in support of the original replications have not been attested.

5.24. In each of these written statements, the defendants had specifically objected that the suit was barred by limitation; that the prayers were not maintainable and that the suit was filed malafide beyond the period of limitation; that the plaintiff had no right to challenge relinquishment deed and the documents validly executed by him or the transfers in their favour. 5.25. The defendant no.6 (81 years of age) had specifically asserted that the plaintiff was guilty of making false statement on oath and that the suit was an abuse of the process of law. He also stated that the plaintiff was a witness to the purchase and that prior thereto he had visited the suit property several times. It was objected that the plaintiff had no cause of action to bring or maintain the suit.

5.26. It is noteworthy that with regard to the basement of the suit property, the defendant no.1 entered into an agreement with Smt. Rajni Chabra - the defendant no. 8 in the suit/ respondent no.7

herein on the 31st of January 2005 which is incorporated in the receipt dated 13th January, 2005 acknowledging receipt of an amount of Rs.5 lakhs by one cheque and Rs.4 lakhs by a bearer cheque drawn on the Punjab Sind Bank, Jangpura Branch, New Delhi. In terms thereof, Smt. Rajni Chabra claims possession by virtue of the agreement to sell. The plaintiff, an occupant of the third floor of the property, thus would have knowledge of the presence of Smt. Rajni Chabra in the basement. She was not impleaded as a party by him.

5.27. It is essential to note the narration made by the plaintiff in paras 12 and 21 of the plaint inasmuch as the adjudication in the case rests on the plaintiff's averments about the date of knowledge of the challenged transactions which read thus :

―12. That immediately after shifting of plaintiff to the third floor, simultaneously defendant no. 7 also shifted to the second floor. Since defendant no. 7 was not known to the plaintiff and he has got no right or title in the property. Plaintiff came to know from defendant no. 4 that he has been shifted to this house in the capacity of owner of 2nd Floor which he has purchased from defendant no. 1 and it was told that the said property has been purchased by him vide the sale deed dated 4.3.2002 executed by defendant no. 1. Copy of the sale deed is enclosed herewith for kind perusal of this court. Plaintiff was shocked to know that the second floor has been sold to defendant no. 4 without the consent of plaintiff and without informing him about the same. The plaintiff confronted defendant no. 1 as to why she has sold the property by breach of agreement and trust, she informed the plaintiff that if she had not sold the 2nd floor of the house, construction of the house would come to stand still and she further assured the plaintiff he should not worry about the 2nd floor as first floor of the house will be handed over to plaintiff. Believing statement of

defendant no. 1 and keeping in view respect for the mother, plaintiff kept quiet and did not move the matter further.

xxx xxx xxx

21. That cause of action has arisen in favour of plaintiff and against the defendants on the various dates i.e. on 18.11.99, when relinquishment deed was executed in favour of Defendant No.1 and on 30.3.2000 when rectification deed was executed, which were executed in good faith as agreed and as represented by the Defendant No.1 to 4, and on the dates when sale deeds were executed by Defendant No.1 in favour of Defendants No.5 to 7 and on the date when defendant refused to accede to the request of the plaintiff and to transfer third floor and basement in favour of plaintiff and cause of action still continues to arise."

(Emphasis supplied)

5.28. It is truly unfortunate that the plaintiff has made these averments which fly in the face of his own documents. Having witnessed the agreement and conveyance, there was also no occasion for the plaintiff to confront the defendant no. 1 with regard to sale of the property (as averred in para 12 of the plaint).

It is also apparent that in para 12 of the plaint, Shri Harish Relan has clearly stated falsehoods to the effect that he did not know Sh. Prem Nath Mehra-defendant no. 7; that he learnt about the sale from Sh. Prem Nath Mehra (wrongly typed as defendant no.4) in the plaint; or that he was "shocked to know" about the sale or that the sale was "without the consent of the plaintiff and without informing him‖.

5.29. The above false averments were supported by an affidavit of the plaintiff dated 21st April, 2006 wherein para 2, Harish Relan has stated that the plaint was drafted under his instructions;

that he had gone through the contents of the plaint which were true and correct.

5.30. Along with the plaint, the plaintiff had filed IA No.4811/2006 under Order XXXIX of the CPC seeking an interim injunction. In view of the mis-representation and concealment in paras 12 and 21 of the plaint by the plaintiff, on 1st May, 2006, the defendants were directed to maintain status quo in respect of the basement and third floor of the property in question. Copy of the order of status quo was posted to the defendants on the 9th of May, 2006.

The defendant no.1 claims that she executed the registered sale deed dated 10th of May 2006 transferring the basement of the suit property to Smt. Rajni Chabra (defendant no.8/respondent no.7) ignorant of the court orders, in this background. The defendants have claimed that the interim order was not received till execution of this sale deed.

5.31. On the 26th of September 2007, defendant no.8 filed I.A.No.11318/2007 for impleadment under Order I Rule 10 of the CPC. This application was allowed by an order dated 18th April, 2009 by the learned Single Judge and the defendant no.8 was also permitted to file its written statement. The defendant no.8 filed her written statement on 21st of May 2010 and inter alia, also objected that the suit claim was time barred. 5.32. Mr. Nandwani has urged that the sale deed dated 10 th May, 2006 was executed in violation of the status quo order dated 1st May, 2006 compelling the plaintiff to file I.A.No.5921/2006 under Order XXXIX Rule 2A of the CPC.

5.33. More than three and a half years thereafter, on 10th November, 2009, the plaintiff filed his first application (I.A.No.14495/2009) under Order VI Rule 17 of the CPC for amendment of the plaint to incorporate a challenge to sale of the basement in favour of the defendant no.8. It was filed more than two years of filing of I.A.No.11318/2007 - the impleadment application of defendant no.8.

The record of the case shows that this amendment application was never pressed by the plaintiff. Consequently, on 31st January, 2014, on the pleadings of the parties, the following issues were framed by the learned Single Judge :

"(I) Whether the suit as framed is barred by limitation? OPD (II) If the answer to issue No.(I) is in negative, whether the plaintiff is entitled to a declaration that the relinquishment deeds dated 18.11.1999 and 30.3.2000 are null and void? If so, to what effect? OPP (III) If the answer to issue No.(II) is in affirmative, whether the plaintiff is entitled to a declaration that the sale deeds dated 4.3.2002, 3.12.2004 and 16.8.2005 are null and void? If so, to what effect? OPP (IV) If the answer to issue No.(III) is in affirmative, whether the plaintiff has any share in the property bearing No.N-18, Jangpura Extension, New Delhi. If so, then what share?

OPP (V) Whether the plaintiff is entitled to permanent injunction, as prayed for? OPP (VI) Relief."

5.34. Inasmuch as the plaintiff himself admitted execution of the relinquishment deed dated 18th November, 1999 and the 30th

March, 2000 and the challenge to the same by way of the suit was only filed in the year 2006, the learned Single Judge was of the view that the issue of limitation was an issue of law not involving recording of any evidence. On the 31st of January, 2014, the learned Single Judge therefore, also recorded the prima facie view that the challenge was hopelessly barred by time and the matter was adjourned for giving an opportunity to the parties to address the court on this issue.

5.35. At this stage, eight years after filing of the suit, the plaintiff filed IA No.8296/2014 under Order VI Rule 17 of the CPC on 30th April, 2014 seeking leave to amend the plaint. We may note that by an order dated 2nd May, 2014, the learned Single Judge had directed that this application would be considered after hearing on the maintainability of the suit on the issue of limitation. The order dated 2nd May, 2014 of the learned Single Judge was set aside by the Division Bench by an order dated 3 rd September, 2014 passed in FAO(OS) No.295/2014 directing that the amendment application be heard before consideration of the issue of limitation.

5.36. The plaintiff's brother Raminder Kumar (defendant no.2 in the original plaint) expired on the 23rd August, 2014. On the 5th of November 2014, the counsels for the plaintiff Harish Relan as well as defendant nos.1, 3 and 4 i.e. Kaushal Kumari Relan and her two daughters informed the court about his demise and also that his mother defendant no.1 was the sole legal representative of the deceased defendant no.2.

5.37. On the 19th of November, 2014, the learned Single Judge proceeded to first hear arguments on IA No.8296/2014 seeking

amendment by the plaintiff. The court also heard arguments on IA No.2022/2014 filed by defendant no.1 under Order 39 Rule 4 of the CPC seeking modification of the order dated 1st May, 2006 and permission to the defendant no.1 to reside on the third floor of the suit property pending the suit. Thereafter, the learned Single Judge examined the suit from the perspective of its maintainability as had been directed on the 31 st of January, 2014 that the first issue, as to whether the suit was within limitation, would be tried as a preliminary issue.

5.38. After a detailed consideration, by the impugned judgment dated 28th November, 2014, the court was of the view that ―the suit is time barred as admittedly the plaintiff has denied the execution of relinquishment deed in the year 1999. Subsequently, when the other floors were sold, the plaintiff had full knowledge and even the plaintiff was the witness to the said transaction. On the face of said registered documents which are not denied and cannot be denied by the plaintiff. The plaintiff is not entitled to cover up such delay on flimsy reasons which have no application in law. Once the suit is time barred the application for amendment is not maintainable. The suit and the application being I.A. No.8296/2014 under Order 6 Rule 17 CPC is dismissed. The interim order dated 1st May, 2006 is vacated by allowing the application under Order 39 Rule 4 CPC by the defendant No.1 who is declared to be the owner of the property of N-18, Jangpura Extension, Delhi-110014‖.

Challenge to the dismissal of I.A.No.8296/2014 seeking amendment of the plaint

6. The learned Single Judge has noted that by way of IA No.8296/2014, the plaintiff was seeking amendment of plaint, paras 2, 6, 12 and 21; insertion of paras 4,13,18 as well as deletion of para 3 in the light of the amended para 2 and para 15, in the light of amended para 14. We have noticed above, the averments of the plaintiff in the existing para 12 and para 21 of the cause of action.

7. The amendment was opposed by the defendants on the ground that the same was malafide; that despite the written statement setting out the complete facts of the case in the year 2006 itself, the issues having been framed on 31 st January, 2014, the plaintiff had waited till 30th April, 2014 before filing the same. It was further submitted that the amendments were legally impermissible inasmuch as the proposed amendments made out a completely new case and were hopelessly barred by limitation.

In the instant case, there is no answer by the plaintiff to the above objections on behalf of the defendants.

8. Let us place the existing pleas in plaint filed on 21st April, 2006 against the amendments proposed by way of I.A.No.8296/2014 for the purposes of convenience:

       Original plaint           Proposed amendments

2. That Late Sh. Aishi    Amend para 2. That late Shri Aishi Lal
Lal,    husband      of   Relan, who was husband of defendant
Defendant No.1 and        No.1, father of defendant No.2 to 4 and

father of Plaintiff and plaintiff was allotted vide Lease dated Defendants No.2 to 4 14.12.1960 House No.N-18 A&B,

was allotted a plot of Jangpura Extension, New Delhi by Govt. land measuring 200 of India. After allotment late Shri Aishi yds. bearing No.N-18 Lal Relan constructed the ground floor at Jangpura Extension, on the property where he resided with New Delhi-110014. his wife i.e. defendant No.1 and his children i.e. plaintiff and defendants No.2 to 4. Shri Aishi Lal Relan expired on 25.09.1999 leaving behind the plaintiff and defendants No.1 to 4.

Thereafter, the said property was inherited by plaintiff and defendants No.1 to 4 in equal proportions by Law of Inheritance.

3. That the said Sh. Delete para 3 (in the light of amended Aishi Lal had died on para 2).

25.09.1989       leaving
behind five LRs, that
is,    plaintiff     and
Defendants No.1 to 4.

                         Insert para 4. That defendant no.2 Shri

Raminder Kumar, brother of the plaintiff is not employed and is not having any source of income. He is engaged in betting rackets and has with malafide intentions won over defendant no.1 who has placed her total trust in him and is around 90 years old and has lost all her senses and presence of mind. The defendant no.2 has also lost all the money in betting and it has come to the knowledge of the plaintiff that defendant no.1 has also given all her cash and monies lying with her after sale of various parts of the property which has

been sold for consideration to defendant no.2. This amount has been lost heavily in betting by defendant no.2 and defendant no.2 has become now penniless and is using defendant no.1 for his own benefits by filing cases against the plaintiff. The defendant no.4 is the unmarried sister of the plaintiff and is residing with defendant no.1 and 2 in a rented accommodation near Rajdoot Hotel, Jangpura B, New Delhi. The defendant no.1 is hand in glove with defendants no.2 to 4 and is trying to put themselves in possession of third floor of the property in question by hook or crook so that they may sell the said floor also and deprive the plaintiff of his share in the property.

6. That Smt. Promila Amend para 6. That Smt. Promila Kapoor, who is eldest Kapoor, who is eldest sister of the sister of the plaintiff plaintiff was married in the year 1984 was married in the and after marriage she along with her year 1984 and after daughter and husband also used to reside marriage she along in the same house. Due to responsibility with her daughter and of the family plaintiff was got married in husband also used to the year 1994. Now after the death of resides in the same her husband, defendant no.3 has come house. Due to back to live with her in-laws at Lajpat responsibility of the Nagar, New Delhi and has also joined family plaintiff was proceedings before this Hon'ble Court. got married in the year The defendant no.3 has also filed her 1994. written statement which has been adopted by defendant no.1, 2 and 4.

12. That Amend para 12. That the plaintiff

immediately after shifted to the third floor of the property shifting of plaintiff to in question in the last of year 2000/ in the third floor, the beginning of 2001. Simultaneously, simultaneously defendant no. 7 also entered the premises defendant no. 7 also and occupied second floor of the said shifted to the second property. When plaintiff asked the floor. Since defendant no. 1 as to how the defendant defendant no. 7 was no. 7 has entered the second floor of the not known to the property in question, he was told by plaintiff and he has defendant no. 1 to the plaintiff that he got no right or title in has entered in property as tenant as she the property. Plaintiff required money to repay the loans came to know from which she had incurred for defendant no. 4 that reconstruction of the said property. he has been shifted to The plaintiff was again assured by this house in the defendant no. 1 as his share was only capacity of owner of qua first floor of the property, 2nd Floor which he therefore, he need not to worry of the has purchased from second floor. The plaintiff thereafter defendant no. 1 and it enquired from the defendant no. 7 was told that the said whether he has entered the property as property has been tenant to which answer of the purchased by him vide defendant no. 7 was negative and he the sale deed dated stated that he has entered the premises 4.3.2002 executed by as owner as he has paid substantial defendant no. 1. Copy sum of Rs.40,00,000/- for sale of the of the sale deed is property. The plaintiff again enclosed herewith for confronted defendant no. 1 that kind perusal of this defendant no. 7 stated to have court. Plaintiff was purchased the second floor for shocked to know that Rs.40,00,000/- and as to where the said the second floor has money has been siphoned off by been sold to defendant defendant no. 1. The defendant no. 1 no. 4 without the kept on dilly-delaying the matter and consent of plaintiff thereafter told the plaintiff that she has and without actually sold the property in order to

informing him about pay the debts incurred by defendant the same. The no.2 due to his betting habits. She plaintiff confronted further under pressure and influence of defendant no. 1 as to defendant no. 2 and 4 told the plaintiff why she has sold the has to sign the sale deed of defendant property by breach of no. 7 as defendant no. 7 had become agreement and trust, disturbed by constant questioning of she informed the plaintiff in case plaintiff wanted first plaintiff that if she had floor to be registered in his name. not sold the 2nd floor Thus, just in compulsion and in order of the house, to secure his own interest the plaintiff construction of the signed the sale deed of the second floor house would come to as a witness. The sale deed was stand still and she registered on 04.03.2002 and the sale further assured the consideration was shown only to be plaintiff he should not Rs.9,00,000/- The loan documents as worry about the 2nd shown to the plaintiff were from one floor as first floor of Nagpal Finance and Leasing and latter the house will be on from Citifinance. The copy of the handed over to same are filed herewith for the kind plaintiff. Believing perusal of this court. statement of defendant no.1 and keeping in view respect for the mother, plaintiff kept quiet and did not move the matter further.

Insert as para 13. That the plaintiff thereafter kept on persuading the defendant no.1 to transfer the first floor of the property in his name but defendant no.1 with malafide intentions and under influence of defendant nos.2 and 4 did not transfer the said floor in favour of the plaintiff. However, in

spite of representation made by defendant no.1 that the first floor will not be given on rent, the same was rented to one Mr. Banerjee, Director of J.K. Tyres for a period of two years starting from mid 2001 to mid 2003.

The said floor remained unoccupied thereafter till 2005. In the month of April 2005 the plaintiff again approached the defendant no.1 calling upon her to execute her promise and transfer the first floor in his name to which defendant no.1 stated that she has already sold the first floor on 03.08.2004 vide registered Sale Deed for a consideration of Rs.12,60,000/-.

The plaintiff was shocked to learn the same. The plaintiff told the defendant no.1 that she in connivance with defendant no.2 and 4 has played a fraud upon him by making a false promise to him to transfer first floor of the property after construction and thereafter putting him on third floor instead of transferring him the first floor due to which the plaintiff had executed the relinquishment deeds and rectification deeds which were sham transactions executed for facilitation of construction of property and thereafter selling the first floor behind his back and without knowledge. The plaintiff thereafter complained to defendant no.3 who pleaded ignorance about the conduct and fraud being played upon plaintiff by defendants no.1, 2 and 4 in

getting the relinquishment deed and rectification deed signed by luring him time and again by promising first floor of the said property and thereafter cleverly selling the first floor without letting the plaintiff came to know about sale or giving him any part of sale consideration thereof. Thus, the fraud being played upon him by defendants no.1, 2 and 4 came to know only in the year 2005 when plaintiff learned that the defendant no.1 has sold the first floor of the property vide sale deed dated 03.08.2004.

Insert para 14. That basement and ground floor was lying vacant.

However, after sometime defendant no.5 moved in the ground floor of the house and plaintiff was shocked to learn the same. He immediately confronted defendants No.1 to 4 but no satisfactory reply was given by them and he came to know that the property has been sold them way back on 16.08.2005 without disclosing the same to the plaintiff and without taking his consent.

15. That in furtherance Delete para 15 (in light of para 14) of said conspiracy defendant nos.1 to 4 moved out of House No.N-18 which was the parental house of plaintiff to House No.M-4A, Jungpura,

New Delhi and sold the first floor of property to one Sh.

Sarin who also moved into the said property.

Insert as para 18. That the defendant no.1 filed an application under Section 4 of the Protection and Maintenance of the Senior Citizens Act on 20.10.2011 whereby demanding maintenance and possession of third floor of the property.

Copy of the said application is filed herewith for kind perusal of this Hon'ble Court. The plaintiff filed reply to the same and the said application was got decided in favour of the defendant no.1 thereby directing the plaintiff to be dispossessed from the property and putting the defendant no.1 in possession of the same despite there being a status quo order passed by this Hon'ble Court qua the 3rd Floor of the said property.

The copy of the order of the Ld. Tribunal is filed herewith for the kind perusal of this Hon'ble Court.

The defendant no.1 being a 90 years old is passive and is not active at all but defendant no.2 in garb of name of defendant no.1 got the said application filed and got the said order illegally from the said Tribunal which was later on set aside by this Hon'ble Court in the writ petition challenging the same. Copy of the said order is filed herewith for kind

perusal of this Hon'ble Court.

That defendant no.2 in order to put further pressure on the plaintiff and to get share in third floor of the said property filed an application before the Tribunal under Maintenance Act thereby calling upon the plaintiff to pay maintenance to him as his share in the property would devolve upon plaintiff as he is unmarried bachelor and has no legal heir. Copy of the said application herewith for kind perusal of this Hon'ble Court. The said application was also contested and dismissed by the learned Tribunal holding that the defendant no.2 was not entitled to any maintenance from the plaintiff. Copy of the said application is filed herewith for kind perusal of this Hon'ble Court. The same is admission on part of defendant no.1 and 2 that their share would devolve upon plaintiff, therefore, in case defendant no.2 is entitled to any share in the said property and claim maintenance despite defendant no.1 being alive clearly shows that there was family understanding between the parties and, therefore, the relinquishment deed and rectification deed executed by the plaintiff was done in order to get the property and no right was given up by the plaintiff.

21. That cause of Amend para 21. That the cause of action has arisen in action has arisen in favour of the

favour of plaintiff and plaintiff and against the defendants on against the defendants various dates i.e. on 18.11.1999 when on the various dates Relinquishment Deed was got signed by i.e. on 18.11.99, when defendant no. 1 in her favour on false relinquishment deed promise that first floor of the was executed in reconstructed property would fall in favour of Defendant share of the plaintiff, thereby making it No.1 and on a sham transaction. The cause of action 30.3.2000 when further arose on 30.03.2000 when the rectification deed was Rectification Deed was executed by the executed, which were plaintiff in favour of defendant no. 1 executed in good faith based upon same promise and in good as agreed and as faith and on representation and represented by the agreement by defendant no.1. The cause Defendant No.1 to 4, of action further arose in favour of the and on the dates when plaintiff and against the defendants in sale deeds were April 2005 when fraud being played executed by Defendant upon plaintiff came to know that first No.1 in favour of floor of the said property has already Defendants No.5 to 7 been sold by defendant no.1 on and on the date when 03.08.2004 vide registered Sale Deed defendant refused to without any knowledge and consent of accede to the request the plaintiff and which was promised to of the plaintiff and to be plaintiff's share in the undivided transfer third floor property. The cause of action further and basement in arose when the defendants acting in favour of plaintiff and above mentioned fraudulent manner cause of action still benefitted from the sale of the said continues to arise. property and even did not pay a single penny to the plaintiff out of the said sale proceeds nor disclosed the same to the plaintiff. The cause of action further arose in year 2005 when the plaintiff came to know about sale of ground floor by defendant no.1 in conspiracy with defendant nos. 2 to 4. The cause of

action further arose when plaintiff requested the defendant no.1 to transfer the third floor of the said property and basement in favour of the plaintiff in the year 2005 but the defendant no.1 refused to do so despite being served with legal notice dated 17.11.2005. The cause of action is still continuing and subsisting in favour of the plaintiff and against the defendants.

9. We have highlighted the averments proposed to be incorporated by the plaintiff, withdrawing admissions and setting up a completely new case that he learnt of a ―fraud‖ being played upon him in April 2005 as the falsity of his case stood exposed by the defendants. Interestingly the plaintiff still did not seek to incorporate any challenge to the registration of the title deed for the basement on 10th May, 2006 in favour of defendant no.8 as giving rise to cause of action in his favour for filing the suit.

10. The law governing consideration of a prayer for amendment of a plaint is well settled. It is trite that the court should be extremely liberal granting amendment [Ref. : (1969) 1 SCC 869, Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon; (1984) 1 SCC 668, Haridas Aildas Thadani & Ors. v. Godrej Rustom Kermani]. However, it is equally well settled that an amendment of plaint having the effect of withdrawal of an admission is not permissible [Ref.: (1978) 2 SCC 493, Hajji Mohd. Ishaq WD. S.K. Mohammed & Ors. v. Mohamad Iqbal and Mohamed Ali & Co.; (1982) 21 DLT 102,

Indo-American Electricals Ltd. v. M.L. Sharma; AIR 1984 Del 150, Chetan Lal Jain v. Manohar Lal Vohra]. Where the proposed amendment has the effect of introducing an entirely new case, seeking to displace the other side completely from the admission made, such amendment also could not be allowed [Ref. : (1988) 3 SCC 57, Jagan Nath (Deceased) thr. LRs. v. Chander Bhan & Ors. and; (1976) 4 SCC 320, Modi Spinning & Weaving Mills Co. Ltd. & Anr. v. Ladha Ram & Co.]. An explanation for the admission can of course be incorporated.

11. It is also trite that a plea which is legally impermissible or prohibited cannot be permitted to be incorporated by amendment. Judicial precedents have also laid down the test, that an amendment of pleading sought malafide shall not be accepted. It needs no elaboration that by an amendment, a plaintiff can incorporate relevant facts only and not be permitted to incorporate irrelevant details.

The amendments proposed by the plaintiff were required to be tested on these benchmarks/parameters by the learned Single Judge.

12. We propose to discuss the proposed amendments in seriatum :

(i) Let us first examine the proposal of the plaintiff to incorporate new para 4. By virtue of the proposed amendment, the plaintiff seeks to incorporate irrelevant facts as well as a new story about his mother (defendant no.1), brother (defendant no.2) and sister (defendant no.4). The plaintiff has sought to incorporate a plea that the defendant no.1 has ―lost all her senses

and presence of mind‖ and that the defendant no.1 was hand in glove with the defendant nos.2 to 4. The pleas sought to be incorporated were available to the plaintiff when he filed the suit in the year 2006. No such plea as are proposed by the amendment was taken and hence a completely new case was being proposed by the amendment.

(ii) Similarly, the amendment suggested to para 6 of the plaint is also completely unnecessary for adjudication of the plaintiff's case and not permissible.

(iii) Mr. Sunil Mittal, learned counsel for the respondent nos.5 and 6 has taken strong exception to the averments of the plaintiff in para 12 in the existing plaint to the effect that he did not know the defendant no.7 or that the sale deed was executed in favour of the defendant no.7 without the knowledge and consent of the plaintiff. It is submitted that the appellant has not even disclosed, let alone given an explanation for not disclosing the facts, that he had witnessed the agreement to sell dated 7th November, 2000 for the second floor in favour of defendant no.7 as well as the general power of attorney dated 9th November, 2000 appointing Shri Anil Kumar Mehra, son of defendant no.7 as the defendant no.1's attorney to manage the second floor and the sale deed in regard thereto and that the agreement to sell and the general power of attorney executed in the year 2000, make a clear reference also to the physical possession of the sold portion having been handed over to the defendant no.7. It is submitted that this court ought to take a stern view of the false averments contained in para 12 of the plaint to the effect that the plaintiff neither knew the defendant

no. 7, nor he knew about the sale deed and was shocked to learn about the same.

So far as the proposed amendment to para 12 is concerned, in the plaint filed in 2006, the plaintiff has taken a categorical stand that the defendant no.7 was not known to him and that he had no right or title in the second floor of the property. The plaintiff set-up a categorical plea that the second floor was sold to the defendant no.7 without his knowledge, information or consent of the plaintiff. The defendant no.7 filed the written statement on the 5th of October 2006 pointing out the falsehoods stated by the plaintiff and the material concealment in the plaint. His dishonesty having been revealed by I.A.No.8296/2014, the plaintiff has made a malafide attempt to amend para 12 of the plaint to incorporate pleas which were never his case in the plaint. The malafide effort to make out a new case by virtue of the proposed amendment to para 12 is not permissible. The plaintiff having made out a clear case in the existing plaint that the transfer of the second floor was without his knowledge, information or consent, cannot be permitted to withdraw this case and set-up the completely new case by incorporating new incidents and pleas against the defendants as proposed.

(iv) In the body of the original plaint, the plaintiff does not even make a reference to the sale deed dated 3rd December, 2004 with regard to the first floor portion. So far as this portion of the property is concerned, in para 13 of the existing plaint, the plaintiff only refers to the first floor having been rented out to a Director of M/s J.K. Tyres. Thereafter the plaintiff has referred to

the sale deed dated 16th August, 2005 in favour of defendant no.5 (who is Shri A.B. Dixit as per the memo of parties with regard to the ground floor. The plaintiff does not give any description of the defendant no.5. Without any supporting averments, straight away the prayer for declaration qua the sale deed dated 3 rd December, 2004 is incorporated in prayer ‗b'. By virtue of a new para 13, the plaintiff seeks to incorporate new pleas relating to the year 2005 to urge that the transactions were sham transactions. Similarly the prayer to incorporate a new para 14 with regard to the sale of the ground floor on 16th August, 2005 without explaining why these facts were not disclosed in the existing plaint is permissible. Also none of these proposed pleas have arisen subsequent to the filing of the original suit and therefore, were known to the plaintiff at the time of its filing.

(v) The proposed para 18 seeks to incorporate the facts relating to the application dated 20th October, 2011 of defendant no.1 under Section 4 of the Protection and Maintenance of the Senior Citizens Act wherein admittedly orders had been passed for the residence of the defendant no.1 as well as for maintenance. Copy of this order dated 21st December, 2011 was handed over by counsel for the plaintiff to us during the course of hearing in court which would show that the plaintiff has not placed the complete facts in the proposed amendment inasmuch as, apart from residence, the plaintiff was directed to pay maintenance at the rate of Rs.7,500/- per month to his mother, the defendant no.1. We are informed that the order to pay this amount was maintained in the writ challenge laid by the plaintiff. In any case, so far as the

claim of the plaintiff in the suit is concerned, the proposed amendment by way of para 18 is unnecessary for effective adjudication thereof and therefore, the plaintiff cannot be permitted to amend the plaint to incorporate the same.

(vi) Again the amendment to para 21 to incorporate additional pleas relating to the dates on which cause of action accrued in favour of the plaintiff raises completely new pleas with regard to the date of knowledge of the transactions relating to the different floors of the suit property. If these facts existed, they were in the knowledge of the plaintiff when the suit was filed. The defendants have urged that these amendments are sought malafide to overcome the legal prohibition of statutory limitation to the maintainability of the suit. There is substance in these contentions and the amendment is legally impermissible. The proposed amendments are not explanatory. In fact the plaintiff has sought to incorporate completely new pleas with regard to the knowledge about the sale deed dated 3rd August, 2004. A plaintiff cannot be permitted to create a new case by amendment. Interestingly, a prayer is made to incorporate pleas regarding entitlement to a share out of the sale proceeds of the different floors, which plea is contradictory with the challenge to the very sale deeds.

13. The limitation for challenging the documents executed by a person and having them declared as null and void would fall under Entry 58 of the Schedule to the Limitation Act, 1963 which reads thus :

"Description of suit Period of Time from which limitation period begins to run

58. To obtain any other Three years When the right to sue declaration first accrues.‖

14. The plaintiff has not sought a decree of cancellation of any of the instruments. However, limitation for a suit relating to cancellation or setting aside of instruments is prescribed under Entry 59 of the Schedule to the Limitation Act, 1963 which reads thus :

"Description of suit Period of Time from which limitation period begins to run

59. To cancel or set aside Three years When the facts an instrument or entitling the plaintiff to decree or for the have the instrument or rescission of a decree cancelled or set contract aside or the contract rescinded first become known to him‖

15. By virtue of the proposed amendment, the plaintiff was seeking to incorporate facts relating to the year 2000, 2002 and 2005. On the date of filing of the amendment application (I.A.No.8296/2014) in 2014, proposed reliefs relating to events in 2000, 2002 and 2005 would be hopelessly beyond the period of three years of prescribed limitation for the prayers for decrees of declaration and cancellation. It is well settled that a proposed amendment of the plaint which is barred by law cannot be permitted to be incorporated.

16. Mr. Nandwani, learned counsel for the appellant has placed reliance on the pronouncement reported at (2004) 6 SCC 415, Pankaja & Anr. v. Yellappa (dead) by LRs & Ors. to urge, that

the courts ought to permit an amendment application which has been filed with substantial delay. The reliance placed by the appellant on this pronouncement is completely erroneous inasmuch as, no such absolute principle has been laid down. In this cited case, the appellants had filed a suit for possession of a property. The application was filed seeking amendment to incorporate a plea for possession of the area encroached upon by the defendants during the pendency of the suit in violation of the court order. In view of the objection in the written statement that the suit for possession without declaration of title was not maintainable, the plaintiff had filed an application seeking amendment of the plaint as well, which was rejected on the ground that the application was belated. The rejection of the amendment on the ground that the application was belated was being considered by the Supreme Court and in the facts of the case, the court observed as under :

"14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.‖ (Emphasis by us)

17. The Supreme Court had thus noted that the factual basis had already been laid in the plaint with regard to the claim of title which had been denied in the written statement and consequently, was already an issue which was to be decided in the trial. In this background, the court had held that it would not be correct to conclude that by the amendment, the plaintiff was introducing a different relief. In the facts which had arisen, the question of limitation was also arguable which had to be decided in the trial. In this background, the belated amendment was permitted by the Supreme Court reiterating the well settled principle that this question has to be decided in the facts and circumstances of each case.

18. It is also important to keep in mind, that the maintainability of the prayer for amendment of the plaint has also to be tested with reference to the date on which the challenge is sought to be incorporated. This is imperative inasmuch as valuable rights are created in favour of parties by operation of the law of limitation. Delay may have the effect of foreclosing the availability of the remedy to a party. Sometimes, there may be a valid and legally acceptable explanation for the delay. But absent such explanation, the law of limitation would guide adjudication on the maintainability of a proposed amendment.

19. In the judgment reported at (2007) 74 SCC 120, Shiv Gopal Sah Alias Shiv Gopal Sahu, the court was considering an application filed more than 15 years after the defendant had asserted title vis-a-vis the original plaintiffs in the year 1987 when he first filed the written statement. It was consequently observed that a fresh suit as on the date of application would be clearly

barred by limitation. On the aspect of a delayed amendment application as well as explanation for the delay, the court observed thus :

―11. We have gone through the amendment application carefully where we do not find any explanation whatsoever for this towering delay. We would expect some explanation, atleast regarding the delay since the delay was very substantial. The whole amendment application, when carefully scanned, does not show any explanation whatsoever. This negligent complacency on the part of the plaintiffs would not permit them to amend the plaint, more particularly when the claim has, apparently, become barred by time.

12. It is quite true that this Court in a number of decisions, has allowed by way of an amendment even the claims which were barred by time. However, for that there had to be a valid basis made out in the application and first of all there had to be bona fides on the part of the plaintiffs and a reasonable explanation for the delay. It is also true that the amendments can be introduced at any stage of the suit, however, when by that amendment an apparently time barred claim is being introduced for the first time, there would have to be some explanation and secondly, the plaintiff would have to show his bona fides, particularly because such claims by way of an amendment would have the effect of defeating the rights created in the defendant by lapse of time. When we see the present facts, it is clear that no such attempt is made by the plaintiffs anywhere more particularly in the amendment application.

13. In Dondapati Narayana Reddy v. Duggireddy Venkatanarayana Reddy[(2001) 8 SCC 115] this Court observed: (SCC p. 118, para 9)

―The amendment should, generally, be allowed unless it is shown that permitting the amendment would be unjust and result in prejudice against the opposite side which cannot be compensated by costs or would deprive him of a right which has accrued to him with the lapse of time.

14. In T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board [(2004) 3 SCC 392] a three- Judge Bench of this Court relying on L.J. Leach & Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357] reiterated as under: (SCC p. 393, para 2) ―The law as regards permitting amendment to the plaint, is well settled. In L.J. Leach & Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357] it was held that the Court would as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it.‖ The situation is no different in this appeal and as such a suit as described above would be clearly barred by limitation.‖ (Emphasis supplied)

20. In the instant case, the only excuse for filing the amendment application (I.A.No.8296/2014) is to be found in para 2 thereof wherein Harish Relan states that ―since the time of filing of the present case much development has taken place which is necessary to be brought on record in the present case so as to just proper adjudication of the present case‖. In para 31 of the application, he says that ―in case the present application is allowed no prejudice would be caused to the defendants as the trial has yet not started‖. In para 14, the plaintiff states that if the

amendment is allowed, ―the nature of the suit won‟t change‖. As noted above, there is not a single event which is subsequent to the suit filing which is sought to be incorporated by the amendment. The plaintiff was not only complacent but completely negligent in filing the suit as well as the amendment application which is also without a word of explanation for the long delay. In the present case, there is not a whit of an explanation for the delay in filing the application for amendment, a factor which cannot be ignored.

21. The learned Single Judge has discussed the proposed amendments elaborately. We find apposite the reliance by the learned Single Judge on the pronouncement reported at (1996) 7 SCC 486, Radhika Devi v. Bajrangi Singh & Ors. wherein the court had noted that the appellant had lost the right to amend the plaint to challenge the gift deed of the property in favour of the respondents as such declaration was barred by limitation; that the registration of the documents was a notice to everyone claiming any right, title and interest in the suit property; that the respondents had pleaded such gift deed in the written statement filed in 1988 despite which the appellant did not take steps in the amendment till 1992 by which time even the suit for declaration within the limitation of three years from the date of knowledge had got time barred. The amendment of the plaint would therefore, prejudicially affect respondent's rights. Accepting these submissions, the court rejected the challenge to the denial of the amendment application holding as follows :

―We find no force in the contention of the appellant. No doubt, the amendment of the plaint is normally granted and only in exceptional cases where the accrued rights are taken away by amendment of the

pleading, the Court would refuse the amendment. This Court in Laxmidas Dahyabhai Kabarwala v. Nanabhai Chunilal Kabarwala MANU/SC/0019/1963 : [1964]2SCR567 held thus :

―It is, no doubt, true that, save in exceptional cases, leave to amend under 0.6, Rule17 of the Code will ordinarily be refused when the effect, of the amendment would be to take away from a party a legal right which had accrued to him bay lapse of time. But this rule can apply only when either fresh allegations added or fresh reliefs sought by way of amendment. Where, for instance, an amendment is sought which merely clarifies an existing pleading and does not in substance add to or alter it, it has never been held that the question of a bar of limitation is one of the questions to be considered in allowing such clarification of a matter already contained in the original pleading. The present is & fortiori so. The defendants here were not seeking to add any allegation nor to claim any fresh relief which they had prayed for in the pleading already filed‖.

Citing the above judgment, the learned Single Judge has discussed the relevant dates.

22. In the present case, the documents were executed on 18th November, 1999 and 30th March, 2000; others witnessed by the plaintiff on 7th November, 2000, 19th November, 2000, 7th February, 2001 and 4th March, 2002. Yet the suit was filed only in 2006, beyond three years of their execution.

23. In any case, the facts relating to the transactions was set out by the defendants in their written statements (by defendant no.6 in the written statement dated 1st July, 2006; by defendant no.5 in

the written statement dated 6th September, 2006 and; by defendant no.7 in the written statement dated 5th October, 2006).

24. In the written statement filed by defendant no.6, it is stated that this 81 years old visited the suit premises several times before purchasing the same; that the house warming ceremony was held on 19th December, 2004 which was attended by the plaintiff; that the staircase being common for all floors, ―the plaintiff (who was occupying the third floor) was fully aware that the defendant no. 6 had purchased the property and would occupy the same since December, 2004‖. The plaintiff has not disputed these averments.

25. Replications stand filed by the plaintiff in the same year. The plaintiff therefore, cannot deny knowledge of these transactions after 2006, even if it could be believed that he was ignorant about them when these defendants entered the property. Such pleas sought to be incorporated by the amendment application filed almost eight years thereafter in 2014, are hopelessly beyond the statutory period of limitation, are clearly malafide and legally impermissible.

26. Reference may be usefully made to the pronouncement of the Supreme Court reported at (2009) 10 SCC 84, Revajeetu Builders and Developers v. Narayanaswamy and Sons & Ors. In para 21 of the impugned judgment, the learned Single Judge has extracted the following portion of this pronouncement :

"22. The learned counsel for the respondents further relied on the decision inHeeralal v. Kalyan Mal [(1998) 1 SCC 278] wherein the Court proceeded on the basis that the earlier admissions of the defendant cannot be allowed to be withdrawn. The Court examined the facts and held that the defendant

cannot be permitted to withdraw any admission already made.

xxx xxx xxx

39. The rule, however, is not a universal one and under certain circumstances, such an amendment may be allowed by the court notwithstanding the law of limitation. The fact that the claim is barred by the law of limitation is but one of the factors to be taken into account by the court in exercising the discretion as to whether the amendment should be allowed or refused, but it does not affect the power of the court if the amendment is required in the interests of justice (see Ganga Bai v. Vijay Kumar[(1974) 2 SCC 393] and Arundhati Mishra v. Ram Charitra Pandey [(1994) 2 SCC 29].‖

27. Before us, the appellant has failed to make out any case justifying the belated amendment of the plaint in the interest of justice. The appellant also cannot be permitted to withdraw admissions made by him in the plaint.

28. The learned Single Judge has carefully noted the facts in the impugned order dated 28th November, 2014. In para 18, it has been concluded that the amendment application was filed to delay adjudication in the suit; to cover up delay in the filing and that even if the amendment were to be allowed, the suit would be barred by limitation. In para 21, it has been rightly observed that the admissions cannot be withdrawn and finally in para 25, it was concluded that I.A.No.8296/2014 was not maintainable and therefore, dismissed.

In view of the above discussion, the learned Single Judge has rightly concluded that in the admitted facts set out above, and the above position in law, the amendment application was not maintainable and dismissed the same.

Whether the suit was barred by limitation?

29. Let us now examine the view taken thereafter in the judgment dated 28th November, 2014 by the learned Single Judge on the issue as to whether relief claimed by the plaintiff was barred by limitation on the date of its filing.

30. In para 18 of the impugned judgment, the learned judge has noted the court's discretion to reject the plaint. The limits of the court's examination that the court has to see on the face of materials and facts placed by the plaintiff alone if the suit is barred by limitation have been stated. Discussion of the jurisdiction of the court to reject the plaint under Order VII Rule 11 of the CPC is also to be found in paras 19 and 20 of the impugned order and in para 24, it has been observed that the prayers in the existing plaint were barred by limitation. After dismissing the amendment application, in para 26, the learned Single Judge has rightly exercised the jurisdiction under Order VII Rule 11 of the CPC and rejected the plaint.

31. We may note that in para 25 of the impugned order, while dismissing the application, it has been recorded that the suit is dismissed which is clearly an error as in the following para 26, in exercise of jurisdiction under Order VII Rule 11 of the CPC, the learned judge has rejected the plaint on the ground of limitation.

32. A perusal of the judgment shows that the learned Single Judge has examined only the plaint and the plaintiff's documents and applied the principles applicable to consideration of such a plea under Sub-rule (d) of Rule 11 of Order 7 of the CPC.

33. The plaintiff is a banker by profession while his wife is stated to be an employee of the DTC. The plaintiff was admittedly an executant of the Relinquishment Deed and Rectification Deed and a witness to the Conveyance Deed dated 4th January, 2001. The plaintiff had full knowledge about the transactions on the dates of the execution of the documentation.

34. It is the plaintiff's case that he is living on the third floor thereof with the permissive licence to do so by his mother. The plaintiff thereby, admits and accepts that his mother is the absolute and exclusive owner of the suit property.

35. The plaintiff is a witness to the sale deed dated 4th March, 2002 with respect to second floor sold to defendant no.7 and the agreement to sell dated 7th November, 2000 which preceded it as well as the General Power of Attorney dated 9th November, 2000 executed by Smt. Kaushal Kumari Relan appointing Anil Kumar Mehra - son of Shri P.N. Mehra as attorney to manage the second floor. The possession of the second floor of the property was handed over to the defendant no.7 in 2000 pursuant to the agreement to sell.

36. The relinquishment on 18th November, 1999 stands reiterated by the plaintiff in the Rectification Deed dated 30th March, 2000. It stands acted upon with the willing participation of the plaintiff when he signs as a witness on the Conveyance Deed dated 4th January, 2001 whereby absolute rights have conveyed exclusively to defendant no.1 as well as the transfer of the second floor in 2000 to Shri P.N. Mehra. The plaintiff has made no objection at all to these transactions. The challenge to

these instruments in 2006 is was beyond three years from the date of their execution and therefore, barred by limitation.

37. It is well settled that when a registered document is executed and the executors are aware of the terms and nature of the document, all presumptions arise in respect of its correctness thereof [Ref. : (2006) 5 SCC 353, Prem Singh & Ors. v. Birbal & Ors. and (2007) 13 SCC 210 (para 20); Asokan v. Lakshmikutty]. The relinquishment of all rights in the property by the plaintiff was complete and nothing is pointed out in law which could enable the court to rescind the same.

38. The plaintiff's challenge to the sale deeds dated 4th March, 2002; 3rd December, 2004 and 16th August, 2005 in the plaint rests completely on the challenge to the relinquishment deed dated 18th November, 1999 and the rectification deed dated 30th March, 2000. The challenge by the plaintiff to the relinquishment deed and the rectification deed by the original plaint filed in 2006 is clearly barred by law and is not maintainable. The challenge to the sale deeds, executed by the defendant no.1 as absolute owner of the property because of the relinquishment, therefore, has to fail.

39. Furthermore, the plaintiff is asserting an understanding that he would get one fifth share in the property. Aishi Lal Relan was survived by five heirs. Out of the construction of four floors, raised by the defendant no.1 after taking loans, one whole floor (that too the ground or the first) claimed by the plaintiff does not constitute one fifth share by any stretch of imagination. More so when floors are valued differentially! The plaintiff's additional claim of entitlement to one fifth of the sale considerations

received by the defendant no.1 as well as the whole of the third floor and basement (para 21 of the plaint) is not sourced to any family agreement as suggested by him. Two whole floors (basement and the third floor) in such a building cannot constitute one fifth share.

40. This matter can be examined from yet another angle. Learned counsel for the defendants have pointed out that in his legal notice dated 7th of November 2005, the plaintiff made no grievance qua the sales effected in favour of the defendant nos.4 to 7; that he stood by the same and has only asserted entitlement from his mother, to a share in the sale consideration and an entitlement to ownership of the remaining portion in this legal notice.

41. In para 16 of the plaint, the plaintiff has in effect reiterated the case set up in his legal notice when he states that ―that on having come to know of misdeeds of Defendant No.1 to 4, plaintiff impressed upon them to partition the property and to pay 1/5th share from the amounts received by them. ..." The plaintiff thus had no objection and has in fact ratified the transfers by the defendant no.1 (as sole owner of the property) to the defendant nos.5, 6 and 7 and was only interested in his claimed share of the sale consideration.

42. We thus find substance in the contention of learned counsel for the transferees that the plaintiff has therefore, ratified the sale of the different portions to them and that the challenge by way of the suit against these transferees is completely without any cause of action for this reason as well.

43. Mr. Vivek Singh, learned counsel appearing for the respondent nos.1 to 3 (defendant nos.1 to 4) has taken yet another legal objection that Harish Relan was an executant of the Relinquishment Deed dated 18th November, 1999 and the Rectification Deed dated 30th March, 2000. If aggrieved thereby, he was therefore, legally required to seek cancellation of these registered instruments. Instead, the plaintiff has incorporated a prayer for preliminary decree of declaration simplicitor which is not maintainable. In support of this submission, learned counsel has placed reliance on the judicial pronouncement reported at (2010) 12 SCC 112, Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors. wherein in paras 7 and 8, the Supreme Court held thus :

"7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non- binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed.

If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act.

8. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7.‖ (Emphasis supplied)

44. This objection was pressed before us on the 1 st of May 2015 when the following order was recorded :

―xxx xxx xxx

5. During the course of arguments, our attention has been drawn to legal objections barring the maintainability of the suit. Learned counsel for the respondents have placed reliance on Section 34 of the Specific Relief Act, 1963 and contended that this statutory provision prohibits the court from making any declaration where the plaintiff being able to seek further relief, than a mere declaration of title, omits from doing so.

6. Our attention is firstly drawn to the provisions of Chapter 5 of the Specific Relief Act, 1963 by the parties. Section 31 therein reads as follows :

"Section 31. When cancellation may be ordered (1) Any person against whom a written instrument is void or void able, and who has

reasonable apprehension that such instrument. if left outstanding may cause him serious injury, may sue to have it adjudged void or void able; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) If the instrument has been registered under the Indian Registration Act, 1908, the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation."

7. The appellant has however simply prayed for a decree of declaration. This prayer would be governed by Section 34 of the Specific Relief Act, 1963 which reads as follows :

"Section 34. Discretion of court as to declaration of status or right Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such, suit ask for any further relief:

Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee."

8. The proviso to Section 34 prohibits grant of a declaration where a plaintiff being able to seek further relief than a mere declaration of title, omits to do so. Mr. Kohli, Advocate appearing for respondent no.7 has placed reliance on the pronouncement of the Supreme Court reported at (2010) 12 SCC 112,

Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors. in support of the objection that the plaintiff was disentitled to the grant of prayer ‗b' for the reason that he had failed to seek the prayer for cancellation and was seeking a mere declaration qua registered instruments. xxx xxx xxx xxx xxx xxx

10. In the instant case, the plaintiff is admittedly seeking a declaration in respect of the relinquishment deed dated 18th November, 1999 as well as the rectification deed dated 30th March, 2000 which have been admitted executed by him. The suit which has been filed has been couched as a suit simplicitor for declaration which, given the provisions of Section 34 and the principles laid down by the Supreme Court in Suhrid Singh @ Sardool Singh is not maintainable.

11. Mr. Sameer Nandwani, learned counsel for the appellant submits that there is merit in the objection of the respondents to the effect that the prayer for declaration simplicitor made in prayer „b‟of the plaint is barred by Section 34 of the Specific Relief Act, 1963.

(Emphasis supplied)

45. In view of the statutory provisions and the law laid down by the Supreme Court, it is therefore, legally well settled that a non-executant of an instrument may seek a declaration simplicitor. However, an executant of an instrument has to seek cancellation thereof. The plaintiff has failed to seek the prayer in the present case.

46. Mr. Nandwani has placed reliance on the pronouncement reported at (1982) 1 SCC 4, Gangabai w/o Rambilas Gilda (Smt.) v. Chhabubai w/o Pukharajji Gandhi (Smt.) in support of the submission that the relinquishment deed is not relied upon and is alleged to be a sham on the ground of existence of different

transactions and that the plaintiff was entitled to lead evidence on this issue.

47. There is yet another reason why this appeal must fail. We have noted above not only the fact that the plaintiff has not only unquestionably accepted execution of the Relinquishment Deed but has reiterated the same in the subsequent registered Rectification Deed. He has witnessed the Conveyance Deed dated 4th January, 2001 executed by the government in favour of his mother Smt. Kaushal Kumari Relan (based on the relinquishment) whereby the government has conveyed the property absolutely and exclusively to her. He does not question this transaction. He also admits that Smt. Kaushal Kumari Relan took individual loans in her name and got the property reconstructed. She has been repaying the loans also individually. The construction which existed at the time of death of Aishi Lal Relan also ceased to exist upon reconstruction.

48. The plaintiff is a further witness to the transfer effected by his mother of the second floor of the property and has not objected to the transfers in respect of the other portions of the property. Even in the legal notice, the plaintiff only made a grievance of the non-receipt of the portions of the sale consideration. In the replication filed by him, he reiterates this. We have noted above the plaintiff's admission on the ownership of Smt. Kaushalya Devi Relan when he states that he was permitted to occupy the third floor by her.

49. Mr. Sunil Mittal, learned counsel appearing for defendant nos.6 and 7 has vehemently contended that the appellant has taken frivolous pleas to the effect that his signatures were obtained

under misrepresentation without giving any details as to what was the misrepresentation.

50. In these circumstances, there is no repudiation of his relinquishment of rights by the plaintiff at any relevant point of time. The plaintiff has not asserted any objection or claim from 1999 when the Relinquishment Deed was executed till the issuance of the legal notice on 7th November, 2005. In fact there is nothing at all to support a challenge to the Relinquishment Deed on which the plaintiff could be permitted to lead evidence. None of the transactions have ever been treated as a sham.

51. In para 9 of the plaint, the plaintiff claims that a family meeting was held on 6th July, 1999 in which an alleged decision was taken that the property be reconstructed to provide accommodation for the family. The plaintiff claims that it was decided that on completion of construction of the property, the first floor would be given to him for his residential purpose and the same would be under his ownership. In the same para, the plaintiff claims that the defendant nos.1 to 4 had assured him that the ground floor would be given to him by way of family settlement in case he agrees. In para 11, the plaintiff submits that a decision was taken in the interest of members of the family to transfer the property in the name of one member which would facilitate raising of loan, etc.; however, the ownership of the other members would remain intact in spite of the fact that the property would be transferred in the name of a single family member. As per the plaintiff's documents, Promila Kapoor, a sister of the plaintiff, was admittedly living in the USA in 1999. So she was not party in any such meeting.

52. In his legal notice, Harish Relan has claimed a completely different agreement which is to the effect that after the mutation of the property in their favour, the defendant no.1 was to hand over the property to him. It is trite that evidence is permissible only on facts pleaded. The plaintiff has obviously set up contradictory agreements in his pleadings underlining that the suit is without cause of action. There is no definite plea on which evidence could be permitted.

53. Mr. Sunil Mittal has drawn our attention to the pleadings of the plaintiff in para 2 of the replication filed in November, 2006 wherein a third agreement (one which contradicts the plaintiff's plea of any agreement prior to the execution of the Relinquishment Deed or any misrepresentation or fraud on the part of defendant no.1) is referred to. This pleading reads thus :

"2. ... The Relinquishment Deed and Rectification Deed were got executed from the plaintiff in favour of Defendant No.1 as a mark of respect and with the understanding that after her death the property will be divided among the LRs. He was no where given absolute power to deal with the property against the interest of the plaintiff and other LRs."

It is urged that this averment clearly gives a lie to the plaintiff's submission that there was any understanding with the defendant no.1 that the plaintiff retained 1/5th share in the property even after the execution of the relinquishment deed.

54. No factual basis for any of the grounds laid down in the provisos to Section 92 have been made by the plaintiff in the present case. The pronouncement in Gangabai w/o Rambilas Gilda (Smt.) has thus no application in the present case.

55. The reliance on the pronouncement reported at (1998) 8 SCC 623, Lufthansa German Airlines v. Vij Sales Corporation by the appellant is misplaced as well. In this case, it was found that the issue of limitation did not arise merely on the basis of the allegations made in the plaint which is not so in the present case.

56. Mr. Nandwani has lastly drawn our attention to the pronouncement of the Supreme Court reported at (2015) 5 SCC 674, Satti Paradesi Samadhi and Pillayar Temple v. M. Sankuntala (dead) through LRs & Ors. to contend that the issue of limitation could not have been decided as a preliminary issue. The reliance on this judicial pronouncement by the appellant is also misconceived inasmuch as while there was a dispute with regard to the several factual assertions therein, it is not so before us. The Supreme Court had noted that the issue as to whether settlement deeds by the father were for a consideration or not had to be gone into and also whether the property belonged to the trust within the meaning of Section 10 of the Limitation Act had to be examined before a conclusion could be arrived at as to whether the plaintiff was not protected under Section 10 of the Limitation Act. For this reason, it was held that the case did not come within the ambit and sweep of Rule 2 of Order XIV of the CPC which enabled the court to frame a preliminary issue to adjudicate thereof.

In the present case, there is no such controversy on the facts. As we have noted above, a perusal of the admitted case of the plaintiff as placed in the plaint and the documents relied upon by the plaintiff leaves no manner of doubt at all so far as the

necessary facts to decide an issue of limitation in accordance with Rule 2 of Order XIV of the CPC are concerned.

57. The learned Single Judge has placed reliance on the pronouncement of the Supreme Court reported at (2005) 5 SCC 548, N.V. Srinivasa Murthy & Ors. v. Mariyamma (dead) by proposed LRs & Ors. (para 19) wherein it was held that mutation proceedings in 1994 pursuant to the execution of the sale deed dated 5th May, 1953 did not give rise to a fresh cause of action and that it appear to have been made as a camouflage to get over the bar of limitation. The principles laid by this pronouncement squarely applied to the instant case and that the execution of the sale deeds gives no cause at all to the plaintiff so far as his challenge to the relinquishment in 1999 or the sale deeds in 2002, 2004 and 2005 is concerned.

58. The learned Single Judge has also rightly placed reliance on the principles laid down by the Supreme Court in (1977) 4 SCC 467, T. Arivandandam v. T.V. Satyapal & Anr. (para 20); (2012) 8 SCC 706, Church of Christ Charitable Trust v. Ponniamman Education Trust and of this court in 1999 (48) DRJ 292, Ajay Goel v. K.K. Bhandari wherein it was well settled legal position that if by means of cleverly drafting a camouflage has been created in order to create an illusion of a cause of action, such cases should be nipped in the bud at the first hearing itself i.e. even before admitting the suit and issuing summons or any time thereafter. For this purpose, the court is adequately empowered to suo motu exercise its powers under Order VII Rule 11 of the CPC without even a formal application in this regard.

59. In the hearing on 1st of May 2015 before us, Mr. Vivek Singh, learned counsel for respondent nos.1 to 3 had raised yet another legal objection. It had been submitted that the plaintiff has prayed for a decree of partition, declaration and injunction but had failed to pay proper court fee thereon. The submission of the defendant is that the plaintiff was required to pay ad valorem court fee under Section 7(iv)(c) of the Court Fees Act which he has failed to do so. We extract hereunder the relevant portion of the order dated 1st of May 2015 on this aspect :

"12. Learned counsel for the parties have also submitted that the plaintiff has not valued the suit property for the purposes of court fee and jurisdiction.

13. We may extract hereunder para 23 of the plaint wherein the plaintiff has given the valuation of the reliefs claimed in the suit and quantified the court fee payable :

"23. That the value of the suit for the purpose of court fee and jurisdiction is Rs.40.00 Lacs, that is, share of the plaintiff in the property and since plaintiff is in possession of third floor, therefore fixed court fee of Rs.19.50 has been paid. The value of suit for the purpose of declaration and permanent injunction is also fixed at Rs.130/- each on which court fee of Rs.13/- each is affixed and thus the total court fee of Rs.55.50 is affixed on the plaint."

14. It is an admitted position before us that the plaintiff consequentially couched the prayer in the plaint as a prayer for declaration without seeking the relief of cancellation of documents inasmuch as ad valorem court fee would have become payable.

15. Be that as it may, so far as deficiency of court fee is concerned, the plaintiff would be entitled to an opportunity to make good the deficiency. Inasmuch as

we are considering the challenge to the judgment which has rejected the plaint on limitation, the issue we are deferring orders on this issue.

16. It is trite that so far as issue based on question of law which requires only the plaint to be scrutinized and is premised on a bare reading of the statutory provisions and the law, can be examined by the appellate court as well. In the instant case, it is submitted on behalf of the appellant that it has no objection to this issue being examined by this court. On the contrary, there is an admission of the validity of the objection. Appropriate orders with regard to the above discussion shall be made at the time of recording the final judgment."

Inasmuch as the order of the learned Single Judge is liable to be sustained on the other grounds noted by us, we are merely noting this objection and refraining from adjudication upon the same.

60. We therefore, hold that the appellant has been unable to assail the judgment dated 28th November, 2014 on any legally tenable grounds.

Costs

61. We have concluded that the suit at the instance of the plaintiff was completely misconceived. We have found no merit in the appeal as well. Is it sufficient for this court simply to dismiss the appeal without anything more?

62. So far as the conduct of the plaintiff in the present case is concerned, we find apposite the observations in the pronouncement reported as Padmawati v. Harijan Sewak Sangh

& Ors., (2008) 154 DLT 411 which has been placed by Mr. Vivek Singh, learned counsel for respondent nos.1 to 3 before us. This was a petition filed under Article 227 of the Constitution of India assailing the order of the first appellate court dismissing the petitioner's appeal against the eviction order passed by the Additional Rent Controller. In this pronouncement, this court has come down heavily on the class of people who perpetuate illegal acts by obtaining stays and injunctions from the courts and observed that such class of people must be made to pay the sufferer, not only the entire illegal gains made by them as costs to the person deprived of his right, but also must be burdened with exemplary costs.

The observations of the court in Padmawati on the manner in which the plaintiff must be burdened with costs of the present litigation also squarely apply to the present case. Paras 6, 7 and 9 of the judgment deserve to be considered in extenso and read as follows :

―6. The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. You have only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities. I consider that in such cases where Court finds that using the Courts as a tool, a litigant has perpetuated illegalities or has perpetuated an illegal possession, the Court must impose costs on such litigants which should be equal to the benefits derived by the litigant and harm and deprivation suffered by the rightful person so as to check the frivolous litigation and prevent the people from reaping a rich harvest of illegal acts through the Courts. One of the aim of every judicial system has to

be to discourage unjust enrichment using Courts as a tool. The costs imposed by the Courts must in all cases should be the real costs equal to deprivation suffered by the rightful person.

7. In the present case the petitioners have enjoyed a large premises consisting of three rooms, dining room, verandah, store, kitchen, bath & WC on ground floor at one of the prime locations in North Delhi near Kingsway Camp. The premises is situated in a sprawling green area and has large grounds around it, I consider that the petitioners are liable to pay as costs to the respondent-society for the unlawful gains by them by illegally holding this property for 24 years and 4 months. The average rental value of the property in present days is around Rs. 10,000/- per month. Though property was given on rent in 1982 to the petitioners' father at Rs. 102.50 paise per month, but when premises are given to the employees on rent normally market rent is not charged and only nominal rent is charged. I consider that in order to see what would have been the rent during all these years, it would be appropriate to have an average rent. I consider that for such a premises Rs. 5,000/- per month can safely be taken as average rent. The petitioners have deprived the respondent- society, who is in the service of down trodden, of this property for 292 months (24 years and 4 months). The petitioners are therefore, liable to pay costs which is equivalent to the average market rent of 292 months to the respondents and which comes to Rs. 14,60,000/- apart from litigation expenses and Counsel's fee through out which is assessed at Rs. 50,000/-. The petition is hereby dismissed with costs of Rs.15,10,000/- to be recovered from the petitioners jointly and severally. If any amount has been paid towards user charges, same shall be adjustable.

xxx xxx xxx

9. Before parting with this case, I consider it necessary to pen down that one of the reasons for overflowing of Court dockets is the frivolous litigation in which the Courts are engaged by the

litigants and which is dragged as long as possible. Even if these litigants ultimately loose the lis, they become the real victors and have the last laugh. This class of people who perpetuate illegal acts by obtaining stays and injunctions from the Courts must be made to pay the sufferer not only the entire illegal gains made by them as costs to the person deprived of his right and also must be burdened with exemplary costs. Faith of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the Court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make wrong-doer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the Courts to see that such wrong-doers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years long litigation. Despite settled legal positions, the obvious wrong-doers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the Courts.‖ (Emphasis by us)

63. Padmawati‟s challenge in the Supreme Court by way of a Special Leave Petition was dismissed by an order reported at (2012) 6 SCC 460, Padmawati v. Harijan Sewak Sangh & Ors.

64. The use of civil litigation by unscrupulous litigants to the prejudice, harassment and deprivation of the hapless other side and the necessity to put an end to such practice was considered at length by the Supreme Court in the judgment reported at (2011) 8 SCC 249, Ramrameshwari Devi v. Nirmala Devi & Ors. and in paras 43 and 47 observed as follows :

"43. We have carefully examined the written submissions of the learned amicus curiae and the learned counsel for the parties. We are clearly of the view that unless we ensure that wrongdoers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court's otherwise scarce and valuable time is consumed or more appropriately, wasted in a large number of uncalled for cases.

xxx xxx xxx

47. We have to dispel the common impression that a party by obtaining an injunction based on even false averments and forged documents will tire out the true owner and ultimately the true owner will have to give up to the wrongdoer his legitimate profit. It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh v.State of Punjab [(2000) 5 SCC 668 : 2001 SCC (Cri) 190] this Court was constrained to observe that perjury has become a way of life in our courts.‖

65. The principles laid down in Ramrameshwari Devi were reiterated by the three Judge Bench of the Supreme Court in the judgment reported as Maria Margarida Sequeira Fernandes v. Erasmo Jack De Sequiera, (2012) 5 SCC 370.

66. We are bound by the enunciation of law by the Supreme Court of India as well as by the statutory provisions. Interest of

justice mandate that we examine an appropriate order for payment of costs by the appellant to each of the respondents.

Meaning of „Costs‟

67. It is noteworthy that the expression ‗costs' is not statutorily defined. However guidance on the meaning thereof is to be found from the Black‟s Law Dictionary wherein it is defined thus :

"Costs : A pecuniary allowance, made to the successful party (and recoverable from the losing party), for his expenses in prosecuting or defending an action or a distinct proceeding within an action"

68. Lord Coke has defined costs in litigation as ―for whatever appears to the Court to be the legal expenses incurred by the party in prosecuting his suit or his defence‖.

Object of imposing costs

69. What would be the object and theory on which costs are awarded in favour of the successful party? Light is thrown on this question by a pronouncement of the Division Bench of the Calcutta High Court in the judgment reported as Manindra Chandra Nandi v. Aswini Kumar Acharjya, ILR (1921) 48 Cal 427 which reads thus :

―...the theory on which costs are now awarded to a plaintiff is that default of the defendant made it necessary to sue him, and to a defendant is that the plaintiff sued him without cause; costs are thus in the nature of incidental damages allowed to indemnify a party against the expense of successfully vindicating his rights in court and consequently the party to blame pays costs to the party without fault xxx xxx xxx xxx

Courts are authorized to allow such special allowances, not to inflict a penalty on the un- successful party, but to indemnify the successful litigant for actual expenses necessarily or reasonable incurred in what are designated as important cases or difficult and extraordinary cases...‖ (Emphasis by us)

70. In Vinod Seth v. Devinder Bajaj & Anr., (2010) 8 SCC 1, the Supreme Court has also made observations on what would be the object of the imposition of costs. We propose to cull out hereunder the various indicators noted by the Supreme Court :

"48. The provision for costs is intended to achieve the following goals:

(a) It should act as a deterrent to vexatious, frivolous and speculative litigations or defences. The spectre of being made liable to pay actual costs should be such, as to make every litigant think twice before putting forth a vexatious, frivolous or speculative claim or defence.

(b) Costs should ensure that the provisions of the Code, the Evidence Act and other laws governing procedure are scrupulously and strictly complied with and that parties do not adopt delaying tactics or mislead the court.

(c) Costs should provide adequate indemnity to the successful litigant for the expenditure incurred by him for the litigation. This necessitates the award of actual costs of litigation as contrasted from nominal or fixed or unrealistic costs.

xxx xxx xxx

(e) The provisions relating to costs should not however obstruct access to courts and justice. Under no circumstances the costs should be a deterrent, to a citizen with a genuine or bona fide claim, or to any person belonging to the weaker sections whose

rights have been affected, from approaching the courts. ...‖ (Emphasis supplied)

71. Ramrameshwari Devi has mandated that costs must be awarded to discharge the dishonest and unscrupulous litigants from abusing the judicial system. It was observed that, it was imposing the costs ―not out of anguish‖, but following the fundamental principle that ―wrongdoers should not get benefit out of frivolous litigation‖.

72. The Supreme Court also repeatedly noted the huge strain caused by unnecessary and dishonest litigation on the limited judicial resources, which it is compelled to spread unnecessary time thereon.

73. On this aspect, Ramrameshwari Devi noted thus :

"43. ... We are clearly of the view that unless we ensure that wrongdoers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court's otherwise scarce and valuable time is consumed or more appropriately, wasted in a large number of uncalled for cases.‖

74. This was also noted by this court in the judgments reported at 138 (2007) DCT 62, Goyal MG Gases Pvt. Ltd. v. Air Liquid Deutchland Gambh & Ors. and ILR (2012) IV DEL 110, Punjab National Bank v. Virendra Prakash.

75. In Ashok Kumar Mittal v. Ram Kumar Gupta, (2009) 2 SCC 656, expounding on the object and scope of the jurisdiction to impose costs, the Supreme Court emphasized that a more realistic approach relating to costs needs to be adopted to act as a deterrent to vexatious or luxury litigation borne out of ego or greed or resorted to as a ―buying time factor‖.

What should constitute costs and quantum thereof

76. On this aspect, in para 37 of Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344, the court declared that it is implicit in Section 35(2) of the CPC that costs follow the event. In para 37, it was observed that costs awarded should be those which are reasonably incurred by a successful party, except in those cases where the court in its discretion, for reasons recorded, directs otherwise. It was also declared that they should be realistic and not nominal. The Supreme Court had recognized the following components :

"37. ... The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental costs besides the payment of the court fee, lawyer's fee, typing and other costs in relation to the litigation. It is for the High Courts to examine these aspects and wherever necessary make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate courts to follow.‖ (Emphasis by us)

77. In Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust, (2012) 1 SCC 455, the Supreme Court had observed as follows :

"23. There is one more aspect which requires serious consideration. What is the meaning of the words "actual realistic costs" assuming that costs could be awarded on such basis? xxx xxx xxx The actual realistic cost should have a correlation to costs which are realistic and practical. It cannot obviously refer to fanciful and whimsical expenditure by parties who have the luxury of engaging a battery of high-charging lawyers. If the logic adopted by the High Court is to be accepted, then the losing party should pay the costs, not with reference to the subject-matter of the suit, but with reference to the fee paying capacity of the other side.

xxx xxx xxx Strict enforcement of Section 35(2) CPC

27. The discretion vested in the courts in the matter of award of costs is subject to two conditions, as is evident from Section 35 of the Code:

(i) The discretion of the court is subject to such conditions and limitations as may be prescribed and to the provisions of law for the time being in force [vide sub-section (1)].

(ii) Where the court does not direct that costs shall follow the event, it shall state the reasons in writing [vide sub-section (2)].

The mandate of sub-section (2) of Section 35 of the Code that ―where the court directs that any costs shall not follow the event, the court shall state its reasons in writing‖ is seldom followed in practice by courts. Many courts either do not make any order as to costs or direct the parties to bear their respective costs without assigning or recording the reasons for giving such exemption from costs. Unless the courts develop the practice of awarding costs in accordance with Section 35 (that is, costs following the event) and also give reasons where costs are not awarded, the object of the provision for costs would be defeated. Prosecution and defence of cases is a time consuming and costly process. A plaintiff/petitioner/appellant who is driven to the

court, by the illegal acts of the defendant/respondent, or denial of a right to which he is entitled, if he succeeds, to be reimbursed of his expenses in accordance with law. Similarly a defendant/respondent who is dragged to court unnecessarily or vexatiously, if he succeeds, should be reimbursed of his expenses in accordance with law. Further, it is also well recognised that levy of costs and compensatory costs is one of the effective ways of curbing false or vexatious litigations.‖ (Emphasis by us)

78. We may also note the observations of the Supreme Court on the award of costs by appellate courts in para 32 of Sanjeev Kumar Jain. So far as this jurisdiction was concerned, the Supreme Court in sub para 7 of para 32 had observed as follows :

"Award of realistic costs

32. xxx xxx xxx "Re: Trial courts (8) Costs.--So far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the courts in directing the parties to bear their own costs had led parties to file a number of frivolous cases in the courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Where a party succeeds ultimately on one issue or point but loses on a number of other issues or points which were unnecessarily raised, costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to rules in force. If any of the parties has unreasonably protracted the proceedings, the Judge should consider exercising discretion to impose exemplary costs after taking into account the expense incurred for the purpose of attendance on the adjourned dates.

                 *             *                  *
      Re: Appellate courts

7. Costs.--Awarding of costs must be treated generally as mandatory inasmuch as it is the liberal attitude of the courts in not awarding costs that has led to frivolous points being raised in appeals or frivolous appeals being filed in the courts. Costs should invariably follow the event and reasons must be assigned by the appellate court for not awarding costs. If any of the parties have unreasonably protracted the proceedings, the Judge shall have the discretion to impose exemplary costs after taking into account the costs that may have been imposed at the time of adjournments.‖ (Emphasis by us)

79. In para 33 of Sanjeev Kumar Jain, the court discussed award of costs by appellate court and stated that ―....The costs in regard to a litigation include (a) the court fee and process fee; (b) the advocate‟s fee; (c) expenses of witnesses; and (d) other expenses allowable under the Rules. ..."

80. Emphasizing imposition of ―actual realistic cost‖, the court explained the imperative need for making provision of an appropriate statutory scheme in Sanjeev Kumar Jain in the following terms :

"35. A serious fallout of not levying actual realistic costs should be noted. A litigant, who starts the litigation, after some time, being unable to bear the delay and mounting costs, gives up and surrenders to the other side or agrees to settlement which is something akin to creditor who is not able to recover the debt, writing off the debt. This happens when the costs keep mounting and he realises that even if he succeeds he will not get the actual costs. If this happens frequently, the citizens will lose confidence

in the civil justice system. When a civil litigant is denied effective relief in courts, he tries to take his grievances to ―extra-judicial‖ enforcers (that is, goons, musclemen, underworld) for enforcing his claims/right thereby criminalising the civil society. This has serious repercussions on the institution of democracy.

36. We, therefore, suggest that the Rules be amended to provide for ―actual realistic costs‖. The object is to streamline the award of costs and simplify the process of assessment, while making the cost ―actual and realistic‖. While ascertainment of actuals is necessary in regard to expenditure incurred (as for example, travel expenses of witnesses, cost of obtaining certified copies, etc.) insofar as advocates' fee is concerned, the emphasis should be on "realistic" rather than "actual". The courts are not concerned with the number of lawyers engaged or the high rate of day fee paid to them. For the present, the advocate fee should be a realistic normal single fee.‖

81. The Supreme Court has repeatedly noted the ill effects of dilatory tactics adopted by parties in courts. To curb this tendency, in para 54 of Ramrameshwari Devi, the court had given the following guidelines :

―52. The main question which arises for our consideration is whether the prevailing delay in civil litigation can be curbed? In our considered opinion the existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials:

xxx xxx xxx C. Imposition of actual, realistic or proper costs and/or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy

costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.

xxx xxx xxx

54. While imposing costs we have to take into consideration pragmatic realities and be realistic as to what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter-affidavit, miscellaneous charges towards typing, photocopying, court fee, etc.

55. The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. ...‖ (Emphasis by us)

We find that unfortunately the learned Single Judge has overlooked the aspect of imposition of costs. We are of the view that we would fail in our duty if we did not make an appropriate order in consonance with the principles laid down and observations made in the precedents noted above.

Whether any limitation on imposition of costs

82. We find that the Supreme Court while mandating that the costs imposed should be actual, realistic, reasonable and proper, has at the same time cautioned that the jurisdiction to award costs must be exercised in consonance with the statutory provisions and the applicable rules. This was for the first time noted in para 37

of Salem Advocate Bar Association wherein after expounding on the nature of costs as noted above, the Supreme Court mandated that the ―the High Courts to examine these aspects and wherever necessary make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate courts to follow".

83. In para 22, Sanjeev Kumar Jain, the Supreme Court observed that "Section 35 does not impose a restriction on actual realistic costs" and that ―such restriction is generally imposed by the rules made by the High Court‖ and that ―as the Rules presently stand whatever may be the „actual‟ expenditure incurred by a party, what could be awarded as costs is what is provided in the Rules‖. In this very judgment, the court considered the Delhi High Court Rules and orders and had observed that there was an urgent need to ―revise the advocate‟s fee provided in the Schedule to the Rules, most of which are outdated and have no correlation with the prevailing rates of fees".

84. The Supreme Court has examined the permissibility of exercising inherent power to impose costs in the judgment reported at (2009) 2 SCC 656, Ashok Kumar Mittal v. Ram Kumar Gupta & Anr. and held as follows :

"7. One view has been that the provisions of Sections 35 and 35-A CPC do not in any way affect the wide discretion vested in the High Court in exercise of its inherent power to award costs in the interests of justice in appropriate civil cases. The more sound view however is that though award of costs is within the discretion of the Court, it is subject to such

conditions and limitations as may be prescribed and subject to the provisions of any law for the time being in force; and where the issue is governed and regulated by Sections 35 and 35-A of the Code, there is no question of exercising inherent power contrary to the specific provisions of the Code."

(Emphasis by us)

85. After so observing, in Ashok Kumar Mittal, the Supreme Court commented on the insufficiency of the system and the limitation on the courts in the following terms :

"9. The present system of levying meagre costs in civil matters (or no costs in some matters), no doubt, is wholly unsatisfactory and does not act as a deterrent to vexatious or luxury litigation borne out of ego or greed, or resorted to as a "buying-time" tactic. More realistic approach relating to costs may be the need of the hour. Whether we should adopt suitably, the western models of awarding actual and more realistic costs is a matter that requires to be debated and should engage the urgent attention of the Law Commission of India.

10. We do not however propose to examine or decide the above issues here, except to observe that courts should not exceed or overlook the limitations placed by the Code with reference to costs in civil litigation. Insofar this case is concerned, even though the order relating to costs may not strictly be correct, we do not propose to interfere with the same, in exercise of our jurisdiction under Article 136, as the order has not resulted in any injustice. It is stated that the respondents have already deposited the costs. The time for deposit of costs by the petitioner is extended at his request by a month from today.‖ (Emphasis by us)

86. It is therefore settled law, that though award of costs is within the discretion of the court, it is subject to such conditions and limitations as may be prescribed by the Code of Civil Procedure and subject to provisions of the Rules framed by the High Court. It is trite that where the issue is governed and regulated by Sections 35 and 35A of the Code, there is no question of exercising inherent power contrary to the specific provisions of the court.

Statutory provisions governing imposition of costs

87. Before considering the facts of the present case, it is also necessary to examine the applicable statutory scheme. Civil proceedings are governed by the Code of Civil Procedure, 1908 (‗CPC' for brevity). Section 35 of the CPC mandates that ―costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid‖.

Section 35A enables the court to award ―compensatory costs‖ in respect of ―false or vexatious claims or defences‖. Sub section 2 puts a statutory limit on the maximum costs that can be awarded under this section. A statutory limit of Rs.3,000/- or the limits of the pecuniary jurisdiction of the court, whichever amount is less, is fixed under Section 35A(2).

88. It is important to note that Section 35A has no application to appeal or revision proceedings. Given the fact that this court is adjudicating an appeal assailing the judgment passed in exercise of original jurisdiction. Therefore, the jurisdiction of this court to

impose costs by virtue of Section 35 of the CPC is unhindered by the limitation contained in Section 35A.

89. The Code contains yet another provision governing imposition of costs in civil suits Order XXA of the CPC. While Rule 1 thereof enumerates certain items which could be considered by the court while imposing costs, Rule 2 of Order XXA mandates that the award of costs under this provision shall be ―in accordance with such rules as the High Court may make in this behalf‖.

90. The present case is concerned with a challenge to the judgment and decree passed in exercise of the original jurisdiction by the learned Single Judge of this court which proceedings are governed by the Delhi High Court Rules, 1967 which we have examined. We find that Chapter 11 Part C thereof is captioned ―Award of Costs in Civil Suits‖. Rule 6 of this Chapter again enumerates expenses which may be included in the costs awarded.

91. We also find that the Delhi High Court Rules contain Chapter 16 entitled ―Legal Practitioners‖ which provide for the appointment of legal practitioners in this court. Rule 12 of Chapter 16 Part B provides that in appeals, the fee of the legal practitioner ―shall be half of the fee calculated on the same scale as in the original suits and the principles of the above rules as to original suits shall be applied, as nearly as may be‖.

92. Rule 7 of Chapter 16 Part B provides for a case where there are several defendants. It stipulates that ―fee for each of the defendants who shall appear by a separate counsel may be allowed, in respect of his separate interest‖.

93. Chapter XXIII of these Rules provides for ―Taxation of Costs‖ contains in the Schedule thereto, the table of fees which are admissible to a counsel. Sub clause 2 of Item A of the Schedule stipulates as follows :

―A. In defended suits :

xxx xxx xxx (2) If the amount or value shall exceed Rs. Five Lakh, on Rs. Five Lakh as above and on the remainder at 1 per cent subject, however, that in no case the amount of fee shall exceed Rs.50,000/- (Rupees fifty thousand) or the actual, whichever is less, subject to the condition that a certificate of fee must be filed.‖

94. Item C relating to ―Miscellaneous Proceedings‖ in this Schedule contains Clause (iii) which provides that ―In appeals, the fee shall be calculated at half the scale as in the original suits and the principle of the above rules as to the original suits shall be applied, as nearly as may be.‖

95. On the issue of costs, Sections 35, 35A, 35B as well as Order XXA and Order XXIII of the Code of Civil Procedure apply to civil suits alone. There is no statutory provision even providing for imposition of costs, let alone restricting the exercise the power to do so in appellate jurisdiction. We also find that even under the Delhi High Court Rules, 1967 only, the manner in which counsel's fee may be computed in the appeal against the decree on the original side, is provided. There is no provision in the Delhi High Court Rules as to the manner in which the costs in appeals are to be evaluated or imposed. Guidance on the consideration by this court would therefore, be taken from the principles laid down in the several precedents by the Supreme

Court of India. There is therefore, no limitation by statute or the Rules at all on the appellate court to impose actual, reasonable costs on the losing party at all.

Orders under Section 151 CPC for abuse of process of the court

96. It is also necessary to advert to the power of the court under Section 151 of the CPC. This statutory provision specifically states that ―Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court‖. The spirit, object and intendment of the statutory provisions, as well as statutory scheme shows, that the inherent powers of the court are complementary to the powers specifically conferred on the court by the Code, and are in addition thereto. While Section 35A is confined to award of compensatory costs in respect of ―false or vexatious claims or defences‖, Section 151 takes within its ambit a much wider area of litigation which tantamounts to abuse of process of court. Section 151 therefore, enables a court to pass orders as may be necessary for the ends of justice, or to ―prevent abuse of process of the court‖ which is beyond the "false and vexatious" litigation covered under Section 35A and are wide enough to enable the court to pass orders for full restitution.

97. In the instant case, grave prejudice has resulted to the respondents on account of the suit and appeal proceedings initiated by the appellant and the delay which has entailed in adjudication. He deliberately made a false statement in the plaint and obtained an ex-parte injunction against the respondents which

subsisted from May, 2006 to May, 2014. The plaintiff even filed an application under Order XXXIX Rule 2A of CPC to compel the defendants to concede to his dishonest claim. He has malafide resorted to filing an application seeking amendment of plaint almost 10 years after the filing of the suit which would take the litigation back to the first stage of filing of defence by the defendants. The litigation undoubtedly is a gross abuse of process of the court.

98. The instant case also highlights another dishonest methodology adopted by unscrupulous litigants as the present plaintiff. Execution and knowledge of documentation is denied by explicit pleadings to the effect that the plaintiff has no knowledge about it. Cleverly the document itself is filed though placed where it would escape notice of the courts which are bogged down with heavy dockets. Such person cannot avoid the penal consequences of the deliberate false pleading merely by the act of mischievously filing the document itself. The filing of the document can nowhere mitigate the false statement made in the pleadings supported by an affidavit.

99. It is trite that an order imposing reasonable and realistic costs is necessary to do the right and undo the wrong by an unscrupulous litigant in the course of administration of justice. This court, constituted for the purpose of doing justice, must be deemed to possess the power to pass an order necessary to prevent the abuse of the process of the court in exercise of its appellate jurisdiction under the Delhi High Court Act and the Code of Civil Procedure. Such order would include an order for full restitution in the nature of realistic costs as mentioned by the several

authoritative and binding precedents in addition to the compensatory or punitive costs for false or vexatious claims contemplated in Section 35A or 35B of the Code.

Computation of costs in the present case

100. Let us now examine the facts of the present case for the purposes of application of the above principles.

101. The suit property is located in Jangpura, a prime South Delhi colony. The plaintiff was permitted by the defendant to temporarily occupy the third floor of the suit property in the year 2000. The plaintiff has occupied the same continuously without payment of a single paise for a period of almost 14 years.

102. The defendant no.1 with her caregiver - an unmarried daughter, is living in rented accommodation. The defendant no.1 was compelled to also file I.A.No.2022/2014 under Order XXXIX Rule 4 of the CPC seeking modification of the order dated 1st May, 2006 to the extent of permitting her to reside in the third floor of the suit property during the suit pendency.

103. The defendant no.1 is over 92 years of age and is bed ridden. She was compelled to seek an order for residence and maintenance against the plaintiff under the Protection and Maintenance of the Senior Citizens Act. She has also been compelled to file a suit for possession of the third floor which she permitted the plaintiff to occupy.

104. Inasmuch as the question of mesne profits would be examined in the suit filed by the defendant no. 1 against the plaintiff, we are not awarding costs proportionate to the loss to the

defendant no.1 for the deprivation of her property and its occupation by the defendant no.1 (Ref. : Padmavati).

105. The plaintiff entangled not only his mother, sisters and deceased brother in an unwarranted, frivolous and vexatious litigation but has implicated several other private persons who have purchased different portions of the property. The suit and the appeal remained pending in this court with effect from 1st May, 2006, being a long period of 10 years.

106. Defendant no.4 is a single and unmarried daughter of the defendant no.1. She is compelled to remain so because of the 24 x 7 care required by her mother. For want of economic resources, this daughter has devoted her entire life as her mother's only care giver.

107. In the existing plaint as well as in I.A.No.8296/2014, the plaintiff has let lose a slew of allegations of conspiracy and greed for property against this daughter, as well as the deceased unmarried son of the defendant no.1 who was living with them. These pleas have been vociferously pressed not only by counsel for the appellant but by the appellant as well as his spouse when they have appeared in court.

108. The allegations against his two sisters by the appellant would have caused deep pain to both the sisters. These defendants have been attending the court hearing. Defendant no.4 the unmarried sister of the appellant, expressed extreme hopelessness and dejection at this ill-treatment at the hands of the appellant and his family in the litigation. Keeping in view today's prices, it can be reasonably expected that each party would have spent between

Rs.250/- to Rs.500/- per hearing on expenses of travelling, refreshments etc.

109. The defendant no.6 is aged 81 years and suffering from retinitis pigmentosa for the last several years; suffering from pain in both knees and unable to go anywhere without an attendant. He has pleaded that this suit has caused him ―innumerable hardship, inconvenience and mental distress‖.

110. The litigation would have put a huge pressure on the minds of the defendants and caused immense insecurity on account of the pendency of the challenge to their valuable rights in the property belonging to them.

111. Each of the defendants have thus suffered daily agony and harassment which resulted to them on account of the pendency of the litigation and the consequent uncertainty and apprehensions about the outcome of the litigation.

112. We have agreed with the learned Single Judge that the suit was filed without any cause of action in favour of the plaintiff. We have also held that the plaintiff has knowingly made a false statement in paras 12 and 21 of the plaint which have been detailed above. Having obtained an ex-parte injunction on the 1st May, 2006, the plaintiff has dragged the proceedings in the suit till November, 2014. The defendants have therefore, suffered loss and damages at the hands of the plaintiff.

113. It is pointed out that the suit has been filed without seeking prayers which would have required payment of court fee. The plaintiff has affixed court fee of barely Rs.200/- on the plaint. The plaintiff has delayed adjudication in the suit and filed the amendment application eight years after the filing of the suit.

114. Counsel's fee is an essential component of the costs which are to be awarded to a successful party. Under the Rules aforesaid, the fees admissible to the counsel in the appeal are to be calculated at a rate equivalent to half of what would be paid for the suit. For this purpose, let us calculate the fees which could be admissible to a counsel for the defendants on the suit claim. In the instant case, the suit property has been valued at Rs.40,00,000/- (Rupees forty lacs) by the plaintiff. Thus as per the Schedule to Chapter XXIII, the counsel fees in the suit has to be computed in the following manner :

1. If the amount or value shall exceed Rs.1,00,000/- and not exceed Rs.5,00,000/-

       Up to Rs.1,00,000/-     : Rs.6,500/-
       On the remainder        : At 2%

2. If the amount or value shall exceed Rs.5,00,000/-

       Up to Rs.5,00,000/-         : As computed above
       On the remainder            : At 1%

However, in case the amount of fee shall exceed Rs.50,000/- or the actual, whichever is less, subject to the condition that a certificate of fee must be filed.

115. Keeping in view the above mandate of Rules, the fees of the defendant's counsel in the suit would be computed in the following manner :

Computation on total suit value of Rs.40,00,000/-

For the amount of Rs.5,00,000/-

(i) Up to Rs.1,00,000/-                         : Rs.6,500/-
    On remainder i.e. Rs.4,00,000/- @ 2%        : Rs.8,000/-
                                         Total : Rs.14,500/-

(ii) Computation on balance Rs.35,00,000/- @ : Rs.35,000/-

1% Total value (Rs.35,000 + Rs.14,500) : Rs.49,500/-

116. In the appeal, the fees has to be halved and therefore, a defendant would be entitled to half of Rs.49,500/- which comes to only Rs.24,750/- which can be rounded off to Rs.25,000/- for the sake of convenience. Keeping in view the prevalent rates of counsels' fees, this amount is on an extremely lower side. Realistically speaking, counsels would be charging minimum between Rs.33,000/- to Rs.66,000/- for defending the appeal, if not more. However, keeping the stipulation under the Delhi High Court Rules and the caution by the Supreme Court in the above pronouncements, we are restricting award of the counsels fee to Rs.25,000/- as part of the costs.

117. We also note that in the appeal before us, the respondent nos.1 to 3 (i.e. the mother and sisters of the appellant) were represented by the same counsel. Similarly respondent nos.5 and 6 had a joint counsel. Therefore, while respondent no.7 would be entitled to the amount of Rs.25,000/- as counsel's fees, respondent nos.1 to 3 as one group and the respondent nos.5 and 6 as another group would be paid a sum of Rs.25,000/- towards counsel's fees as a group each.

118. In the several pronouncements noted above, it is pointed out that in addition to counsel's fees, the litigant is entitled to all reasonable costs of the litigation which would include expenses of transportation, lodging, compensation for loss of work, the typing expenses, photocopying, miscellaneous expenses and incidental costs; expenses of witnesses; drafting and filing expenses; costs of obtaining certified copies; court fee and process fee. Some of

these as filings, photocopying would be costs incurred in pursuing the original suit. However, many of the heads as expenses of transportation; miscellaneous expenses incurred in attending court; costs of preparing written submissions; photocopying (of judicial precedents during hearings); losses due to staying away from work; miscellaneous clerkage etc. would arise and have to be considered while computing costs in appeal proceedings. Roughly estimated, an amount of Rs.25,000/- towards all these heads deserves to be paid to each of the respondents towards the cost of the appeals.

119. Looked at from any angle, such orders are necessary to meet the ends of justice as well, keeping in view the harassment to which the defendants have been exposed because of the malafide litigation initiated by the plaintiff.

Costs are not the only option - prosecution for false assertion essential

120. There is yet another very important aspect of this matter. We have concluded that the appellant has knowingly made a false statement in the plaint which is supported by his affidavit. The Supreme Court has also repeatedly emphasized that the courts have to ensure that there is no incentive or motive for uncalled for and frivolous litigation and there was a need for controlling the tendency of introducing false pleadings and forged and fabricated documents by litigants. To curb this unhealthy tendency and improve the administration of civil justice, in Ramrameshwari Devi, the Supreme Court stated that "ordering prosecution would

go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants."

121. In para 81 of Maria Margarida Sequeira Fernandes, the Supreme Court has reiterated that the courts may consider ordering prosecution of such party, otherwise it may not be possible to maintain the purity and sanctity of judicial proceedings holding as follows :

"False claims and false defences

81. False claims and defences are really serious problems with real estate litigation, predominantly because of ever-escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our courts. If a pragmatic approach is adopted, then this problem can be minimised to a large extent.

82. This Court in a recent judgment in Ramrameshwari Devi [(2011) 8 SCC 249 : (2011) 3 SCC (Cri) 481 : (2011) 4 SCC (Civ) 1] aptly observed at p. 266, para 43 that unless wrongdoers are denied profit from frivolous litigation, it would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that the court's otherwise scarce time is consumed or more appropriately, wasted in a large number of uncalled for cases. In this very judgment, the Court provided that this problem can be solved or at least can be minimised if exemplary costs is imposed for instituting frivolous litigation. The Court observed at pp. 267-68, para 58 that imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate cases would go a long way in controlling the tendency of introducing false

pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases, the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings."

(Emphasis supplied)

122. On this aspect, in para 11 of Ashok Kumar Mittal, the court had observed thus :

"11. We would however like to refer to two aspects of the order of the High Court relating to costs. The first is, whether a court, having reached a conclusion that a party deserves to be prosecuted for perjury, should let him off with what it considers to be a stiff penalty by way of costs, on the ground that courts are overburdened with work. We propose to leave open for the present, this question involving moral and ethical issues.‖

123. We have concluded that in the present case as well, the plaintiff deliberately set up a completely false case in the plaint. The intent to continue to occupy the property is obvious. Imposition of costs alone therefore, is not the end of the matter or sufficient to meet the ends of justice.

124. We would be failing in our duty if we would not direct proceedings against the appellant for the false statement he has deliberately made in the plaint.

125. This court has concluded that the appellant has made false claims on affidavit which is punishable under various provisions of the Indian Penal Code. The appellant appears to have committed in CS(OS)No.724/2006 an offence of which he may be punishable under Section 195.

Result

126. In view of the above discussion, it is held as follows :

(i)     The appeal is dismissed with costs.
(ii)    The costs shall be paid to the respondents in the following
manner :

(a) Costs of Rs.25,000/- to each of the respondents in terms of para 118 above.

(b) In addition to (a), counsel's fee assessed at Rs.25,000/- shall be paid by the appellant to respondent nos.1 to 3 as one group and to respondent nos.5 and 6 as another group. The respondent no.7 shall be separately entitled to counsel's fees of Rs.25,000/-.

(iii) The Registrar General of this court is directed to make an enquiry in accordance with the provisions of Section 340 of the Cr.P.C. against the appellant and submit a report to this court within eight weeks from today to enable this court to pass appropriate directions thereon. The appellant shall appear before the Registrar General on 13th August, 2015 for this purpose.

(iv) In view of the dismissal of the appeal, CM No.21092/2014 is hereby dismissed.

GITA MITTAL, J

P.S.TEJI, J

AUGUST 3, 2015 aj