Akshay Kumar Angrish vs Vinod Kumar Angrish (Since ...
2015 Latest Caselaw 5521 Del

$~12
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of Decision : 05th August,2015

+                         CM(M) 304/2015


      AKSHAY KUMAR ANGRISH                    ..... Petitioner
                 Through: Mr.Pramod Kumar Sharma, Advocate

                                    versus

      VINOD KUMAR ANGRISH
      (SINCE DECEASED) THR LRS & ORS           ..... Respondents
                    Through: Mr.N.Prabhakar & Mr.Dhruv Sharma,
                             Advocates

PRATIBHA RANI, J. (Oral)

CM(M) 304/2015

1. Parties to the Civil Suit No.214/2011 (except NDPL - defendant No.4) are litigating over property No.KP-368, Maurya Enclave, Pitampura, Delhi-110034 constructed on a plot measuring 84 sq.yds, which was allotted to late Sh.Yogendra Pal Angrish by the Delhi Development Authority. The Civil Suit no.214/2011 was filed by Sh.Vinod Kumar Angrish against his father Sh.Yogendra Pal Angrish - defendant No.1, his younger brother Sh.Akshay Kumar Angrish - defendant No.2, his elder sister Smt.Promila - defendant No.3 and also impleading NDPL as defendant No.4 claiming the relief of permanent injunction as well as partition.

2. It may be noted at the outset that during pendency of the suit, the plaintiff Sh.Vinod Kumar Angrish has expired on 06.07.2014. His legal heirs have been impleaded as respondents in this petition. Sh.Yogendra Pal Angrish (defendant No.1 in the Civil Suit) - father of late Sh.Vinod Kumar

Angrish (plaintiff in the Civil Suit) and Sh.Akshay Kumar Angrish - petitioner herein (defendant No.2 in the Civil Suit) has also expired.

3. The petitioner is aggrieved by the order dated 13 th May, 2014 whereby the application under Order 6 Rule 17 CPC filed by the plaintiff Sh.Vinod Kumar Angrish (now deceased) in Civil Suit No.214/2011 has been allowed by the learned Trial Court.

4. The facts of the case in brief are that the suit for partition and permanent injunction was filed by Shri Vinod Kumar Angrish pleading that property No.KP-368, Maurya Enclave, Pitampura, Delhi-110034 was purchased in the year 1978 in the name of defendant No.1 Shri Yogender Pal Angrish, father of the plaintiff. The plaintiff also paid 50% of the sale consideration at the time of purchase of the said property. The property was purchased in the name of the father of the plaintiff as at that time the plaintiff Shri Vinod Kumar Angrish was in Nigeria and his wife was serving in Lucknow as teacher. At the stage of construction also the plaintiff contributed about 75% of the costs of construction. While the plaintiff Shri Vinod Kumar Angrish was residing on the first floor of the said property, his father along with another son Sh.Akshay Kumar Angrish was residing on the ground floor. His brother Akshay after taking into confidence their father, who was an old person aged about 91 years, has been trying to dispossess the plaintiff Shri Vinod Kumar Angrish and sell the said property forcibly and illegally. His brother also asked the NDPL for disconnection of the electricity.

5. The relief claimed in the Civil Suit was to pass a decree for permanent injunction restraining NDPL from disconnecting the electricity connection. Another relief was to seek partition of the suit property.

6. Suit was contested by filing written statement by the petitioner herein

(who is defendant No.2 in the Civil Suit) wherein preliminary objection was taken that the suit property was purchased by Shri Yogendra Pal Angrish using his own resources and the year of purchase was 1976 whereas construction was completed in the year 1979. Further plea was taken that sensing the malafide and malicious intentions of plaintiff Vinod Kumar Angrish, his father Late Shri Yogendra Pal Angrish decided to sell the roof of the first floor of the said property which was sold in December, 2009 and funds were utilized by late Shri Yogendra Pal Angrish. Subsequently Shri Yogendra Pal Angrish gifted the ground floor to defendant No.1, his younger son by registered gift deed dated 1st February, 2010. It has also been pleaded that Shri Yogendra Pal Angrish disowned the plaintiff Shri Vinod Kumar Angrish from all of his moveable and immovable properties and severed all his relations with the plaintiff and his family members and it was so published in newspaper 'Virat Vaibhav'. It was further pleaded that ground floor has been given to the defendant No.1 vide registered gift deed and first floor has been gifted to the minor grandson by Shri Yogendra Pal Angrish hence the deceased plaintiff had no right, title or interest in the said property to seek the relief.

7. On acquiring the knowledge of facts as disclosed in the written statement about the said property being gifted by late Shri Yogendra Pal Angrish to his son Sh.Akshay Kumar Angrish and grandson Prince Angrish, plaintiff Sh.Vinod Kumar Angrish sought amendment of the plaint to correct the year of acquisition of the property from 1978 to 1976 and also make necessary averments regarding a gift deed being got executed by influencing late Shri Yogendra Pal Angrish, who due to his old age was not having the required understanding of his acts and deeds and to declare the gift deeds dated 01.02.2010 and 19.08.2011 as null and void.

8. The learned Trial Court vide impugned order dated 13.05.2014 allowed the amendment of the plaint observing as under:-

'......Having heard the submissions made by the Ld.counsel for the parties this Court is of the view that case is at the initial stage in which the issues are yet to be framed and if the objection has been raised in the WS the same can be amended in the replication/rejoinder but an appropriate application under provisions of Order 6 Rule 17 of CPC has to be filed and by way of the aforesaid application the prayer made by the plaintiff cannot be considered as bogus and frivolous and against the provisions of law inasmuch as it is a settled law that if any amendment is required which is just and are necessary to adjudicate the issued between the parties then it can be allowed at any stage of the suit to any of the party even before passing the judgment and the present application being filed by the plaintiff is at the initial stage inasmuch as the issues of this suit are yet to be framed and evidence of the parties yet to be led and not prejudice shall be caused to the defendant if this Court allows the aforesaid application. Therefore, the aforesaid application U/O 6 Rule 17 of Code of Civil Procedure moved by the plaintiff is hereby allowed and disposed of accordingly.

Nothing stated herein above shall tantamount to expressing any opinion of the merits of this case.'

9. Learned counsel for the petitioner has submitted that the plaintiff could not have corrected the year of purchase of the suit property from the year 1978 to 1976 specially when the year of acquisition of the property was denied in replication. Learned counsel for the petitioner has further submitted that new facts have been pleaded in the application under Order VI Rule 17 CPC and the entire nature of the suit has been changed which is not permissible under the law.

10. Learned counsel for the petitioner has placed reliance on the decision reported as Pramod Khanna & Anr. Vs. Subod Khanna & Anr. 2010 Lexton (DHC) 1452 in support of his above contentions.

11. Learned counsel for the respondents has submitted that the dispute was between two brothers in respect of the property purchased in the name of father of the plaintiff and defendant No.1 in Civil Suit No. 214/2011. It has been further submitted that by correcting the year of acquisition of the property in fact the respondents are agreeing to what the petitioner has placed in the written statement as to when the suit property was acquired. Regarding further averments sought to be incorporated by way of amendment, learned counsel for the respondent has emphasized that in view of the new facts being disclosed in the written statement and to avoid multiplicity of the proceedings, the trial being at the initial stage, it was considered necessary to plead all the necessary facts including the facts which have come to the knowledge of the plaintiff after filing of the written statement to ensure complete and proper adjudication of all the issues between the parties. Learned counsel for the respondent has relied upon Revajeetu Builders and Developers Vs. Narayanaswamy and Sons & Ors., (2009) 10 SCC 84 in support of his contentions.

12. I have considered the rival contentions. There is no dispute on the issue that the suit property was allotted to late Sh.Yogendra Pal Angrish - father of late Sh.Vinod Kumar Angrish (plaintiff in the Civil Suit) and Sh.Akshay Kumar Angrish (defendant No.2 in the Civil Suit), who is petitioner before this Court.

13. Though the factum of execution of gift deeds by late Sh.Yogendra Pal Angrish was denied in the replication but amendment was to seek the decree for declaration in respect of the said gift deeds.

14. While considering the prayer for amendment of the pleadings, before such amendment is allowed the Court has to consider whether any such amendment is necessary for determination of real question in controversy

between the parties. The factors to be taken into consideration while dealing with application seeking amendment were laid down in para 67 of the report Revajeetu Builders and Developers Vs. Narayanaswamy and Sons & Ors., (2009) 10 SCC 84, relied upon by the respondents herein, which has also been referred to with approval in the report Pramod Khanna & Anr. Vs. Subod Khanna & Anr. 2010 Lexton (DHC) 1452, relied upon by the petitioner herein. Para 67 of the report is extracted as under:-

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

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide?

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

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

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application."

15. The amendment sought for was to decide the real question in controversy between the parties in respect of their rights on property No.KP-

368, Maurya Enclave, Pitampura, Delhi-110034 constructed on a plot measuring 84 sq.yds, of which plaintiff Vinod Kumar Angrish (now deceased) was seeking partition and defendant No.2 Akshay Kumar Angrish (petitioner herein) claimed ownership in respect of both the floors on the

basis of gift deeds executed in his favour as well as in favour of his son by late Sh.Yogendra Pal Angrish.

16. Learned counsel for the petitioner has failed to show that learned Trial Court allowed the amendment on wrong principles of law.

17. Finding no illegality or infirmity in the impugned order the petition is dismissed.

18. No costs.

CM No.6378/2015 (Stay) Dismissed.

PRATIBHA RANI, J.

AUGUST 05, 2015 'pg'