Delhi High Court
Rajesh @ Raj Chaudhary And Ors. vs Asha Chaudhary And Ors. on 8 December, 2015
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No. 684/2004
% 8th December, 2015
RAJESH @ RAJ CHAUDHARY AND ORS. ..... Plaintiffs
Through: Mr. Manish Vashisth and Ms. Trisha
Nagpal, Advocates.
versus
ASHA CHAUDHARY AND ORS. ..... Defendants
Through: Mr. Ravi Gupta, Sr. Adv. with Mr.
Swastik Singh, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
I.A.No.17819/2012 (U/o VI Rule 17 CPC filed by the plaintiffs for
amendment of plaint
1. The subject suit is a suit for declaration and injunction.
Plaintiff no.1 from the group of plaintiffs claims to be the wife of deceased
Ch. Brijender Singh with plaintiff nos. 2 to 4 being the offsprings of plaintiff
no.1 through Ch. Brijender Singh. Defendant no.1 from the group of
defendants claims that she was the only legally wedded wife of Ch.
Brijender Singh with defendant nos. 2 and 3 being the offsprings of
defendant no.1 through Ch. Brijender Singh.
CS(OS) 684/2004 Page 1 of 9
2. By the suit plaintiffs claimed to be the successors-in-interest to
the properties left behind by Ch. Brijender Singh who died on 17.4.2004.
Plaintiffs also seek declaration as to legal invalidity of the Will dated
11.4.2004 said to have been executed by Ch. Brijender Singh in favour of
defendant nos. 1 to 3.
3. In this suit as filed originally the following prayers were made:-
PRAYER
It is, therefore, most respectfully prayed that his Hon'ble Court may
be pleased to:
(a) pass a decree of declaration declaring that the will vide
document No. 5679 Addl. Book No.3, volume no. 1378 at
pages 52-54 and document No. 5677 Addl. Book No.3, volume
no. 1378 at pages 48-49 dated 12.4.04 registered with the Sub-
Registrar, Delhi in favour of the defendants be declared as null
and void.
b) further declare the Defendant No.1 not a wife of Chaudhary
Brijender Singh and the Defendants No. 2 to 3 have having no
relations of any kind whatsoever with him and declare all the
transactions, if any, done pursuant to GPA No. 261 as null and
void.
c) further pass a decree to permanent injunction restraining the
Defendant No.1 from claiming wife of and Defendants No. 2 &
3 from claiming, son and daughter of late Chaudhary Brijender
Singh.
d) pass a decree of injunction restraining the defendants and their
relatives from executing the said wills and any manner
whatsoever and restraining from depriving the plaintiffs from
the benefits of the properties left behind by the husband of
CS(OS) 684/2004 Page 2 of 9
Plaintiff No.1 and father of the Plaintiff No.2 to 4, Ch.
Brijender Singh in any manner whatsoever.
e) Pass such other or further directions whichever may be deem fit
and proper under the present circumstances of this case."
4. By this amendment application three amendments are sought to
be incorporated in the plaint. First amendment is to seek the relief of
possession as the defendant nos. 1 to 3 had taken up a plea in their written
statement that plaintiffs are not in possession of the suit property, and, that
therefore the suit was not maintainable under Section 34 of the Specific
Relief Act, 1963 . Second amendment sought is for changing the pecuniary
jurisdiction value of the suit on account of claiming possession. Third
amendment is for withdrawal of the averment in the plaint that plaintiff is in
possession inasmuch as now plaintiffs seek to amend the plaint to seek
possession.
5. Learned senior counsel for the defendant nos. 1 to 3 has very
vehemently opposed the application for amendment on the sole ground that
the application for amendment is barred by Order 2 Rule 2 CPC. Reliance
in this regard is placed upon paras 33 and 34 of the judgment of the Supreme
Court in the case of Van Vibhag Karamchari Griha Nirman Sahkari
Sanstha Maryadit (Regd.) Vs. Ramesh Chander and Ors. AIR 2011 SC 41
CS(OS) 684/2004 Page 3 of 9
and which paras read as under:-
"33. This Court is, therefore, of the opinion that the appellant
had the cause of action to sue for Specific Performance in 1991
but he omitted to do so. Having done that, he should not be
allowed to sue on that cause of action which he omitted to
include when he filed his suit. This Court may consider its
omission to include the relief of Specific Performance in the
suit which it filed when it had cause of action to sue for
Specific Performance as relinquishment of that part of its claim.
The suit filed by appellant, therefore, is hit by the provisions of
Order 2 Rule 2 of the Civil Procedure Code.
34. Though the appellant has not subsequently filed a second
suit, as to bring his case squarely within the bar of Order 2 Rule
2, but the broad principles of Order 2 Rule 2, which are also
based on public policy, are attracted in the facts of this case."
6. Relying on the aforesaid paras 33 and 34 of the judgment in the
case of Ramesh Chander (supra), learned senior counsel for the defendant
nos. 1 to 3 argues that the amendment sought by adding the relief of
possession in the plaint is barred under Order 2 Rule 2 CPC and the bar
under Order 2 Rule 2 CPC applies even to an existing suit and the said bar is
not only for a subsequent suit which is filed.
7. Learned counsel for the plaintiff however, in response, places
reliance upon a Division Bench judgment of this Court in the case of Vaish Co-
Operative Adarsh Bank Ltd. Vs. Geetanjali Despande and Ors, 102 (2003)
DLT 570, and paras 17 to 19 whereof are relied upon, to show that the bar
CS(OS) 684/2004 Page 4 of 9
under Order 2 Rule 2 CPC is only for a subsequent suit. These paras read as
under:-
"17. Reverting to the preliminary objections raised by the appellant
against the maintainability of the application for amendment, one would
come across with a peculiar plea of proposed amendment being barred
under Order II Rule 2 CPC. General rule enacted under Order II Rule
2.(1) CPC is that every suit must include the whole of the claim which the
plaintiff is entitled to make in respect of the cause of action. Order II Rule
2.(2) precludes a subsequent suit on any part of claim, which had been
omitted or intentionally relinquished by the plaintiff in an earlier suit
based on the same cause of action. Similarly, where the plaintiff is
entitled to more than one relief in respect of the same cause of action but
omits, except with the leave of the court, to sue for all such reliefs, he is
debarred in view of the Order II Rule 2.(3) CPC from suing afterwards
for any relief so omitted.
18. A plea of bar under Order II Rule 2 CPC is maintainable only if
the defendant makes out (i) that the cause of action of the second suit is
the same on which the previous suit was based, (ii) that in respect of that
cause of action, the plaintiff was entitled to more than one relief and (iii)
that the plaintiff without leave obtained from the Court omitted to sue
earlier for the relief for which the second suit is filed.(see "Gurbux Singh
Vs . Bhooralal": [1964]7SCR831 ). Clearly, Order II Rule 2 CPC enacts a
rule barring a second suit in the situation indicated above. Identity of
cause of action in the former and subsequent suits is essential before the
bar contemplated under Order II Rule 2 CPC is set to operate. Thus,
where the claim or reliefs in the second suit are based on a distinct cause
of action, Order II Rule 2 CPC would have no application. Order II Rule
2 CPC operates as a bar against a subsequent suit if the requisite
conditions for application thereof are satisfied and the field of amendment
of pleadings falls far beyond its purview. The plea of amendment being
barred under Order II Rule 2 CPC is, thus, misconceived and hence
negatived.
19. No doubt the learned counsel for the respondent No.1-plaintiff
made a statement to the Court on 18th of September, 1997 that the
plaintiff did not wish to seek any amendment to the plaint but such a
statement alone cannot suffice to disallow the amendment application, if
the facts sought to be incorporated are relevant for complete and effectual
adjudication on the suit subject and an additional prayer for a relief is
sought to be made to avoid multiplicity of judicial proceedings. Order VI
Rule 17 CPC enables the parties to a suit to amend their pleadings, if so
felt necessary. It is an altogether different question if an application for
amendment is ultimately to be allowed or rejected. There can be no
estoppel against the statute and, Therefore, the right of the respondent
No.1-plaintiff to seek amendment in her plaint cannot be taken away
simply because her counsel made a statement to the said effect. The plea
of estoppel raised by the appellant, thus, fails."
8. I am unimpressed by the arguments urged on behalf of the
defendant nos. 1 to 3 that the application is liable to be dismissed by
applying the bar under Order 2 Rule 2 CPC because the bar under Order 2
Rule 2 CPC cannot apply to an amendment which is sought of an existing
suit. The entire basis of Order 2 Rule 2 CPC is that the earlier suit has
already been decided wherein the relief claimed in the second suit arising
from the cause of action of the earlier suit could have been claimed but is
not claimed, and thus leading to the bar of Order 2 Rule 2 CPC. This is
clear from paras 17 to 19 of the judgment of the Division Bench of this court
in the case of Vaish Co-Operative Adarsh Bank Ltd. (supra).
9. Reliance placed by the learned senior counsel for defendant
nos. 1 to 3 upon the judgment in the case of Ramesh Chander (supra) is
misplaced because the facts of that case are peculiar and different, inasmuch
as, in the said suit the original suit filed for injunction was sought to be
amended for including the cause of action and relief of specific performance
which was time barred on the date when the application was filed to amend
the plaint to seek the relief of specific performance. Since the relief of
specific performance was time barred and the second suit for seeking
specific performance could not have been filed as it would be time barred,
hence, the Supreme Court applied the bar under Order 2 Rule 2 CPC to deny
amendment of the plaint in a suit for injunction for being converted into a
suit for specific performance. Therefore, the judgment in the case of
Ramesh Chander (supra) was on its peculiar facts and it cannot be held that
the judgment in the case of Ramesh Chander (supra) lays down the law that
bar under Order 2 Rule 2 CPC will apply even if there is no earlier suit
decided and in the only existing suit an amendment of the plaint is applied
for seeking to amend the suit plaint to include the relief of possession, more
so when the amendment is sought in view of the objection which is raised on
behalf of the non-applicant/defendant nos. 1 to 3.
10. Also, I may note that the arguments urged on behalf of
defendant nos. 1 to 3 that no amendment is sought in the plaint but only an
additional relief clause is sought for possession, and therefore amendment
should be disallowed, is a wrong argument, inasmuch as, all the requisite
ingredients for the plaintiff to claim ownership of the properties already
exist in the plaint, and therefore no further averments are required to be
made in the plaint. Therefore only the prayer clause had to be amended to
include the relief of possession and which is sought to be done by means of
the present application including by amending pecuniary jurisdiction clause
and of course plaintiff will be liable to pay the ad valorem court fees on the
amendment being allowed.
11. Also, it cannot be argued that plaintiffs are withdrawing any
admission for disallowing amendment because plaintiffs in the existing
plaint have stated the fact that the plaintiffs are in possession but now are
claiming the relief of possession by stating that plaintiffs are out of
possession, inasmuch as, the principle of disallowing the withdrawal of
amendment is to ensure that an averment made for the benefit of the
opposite party which is an admission should not be allowed to be
withdrawn. The principle cannot be extended to disallow amendment to suit
plaint whereby the relief of possession is sought of the suit property or
properties, more so on account of objections raised by the defendant nos. 1
to 3 in their written statement in terms of Section 34 of the Specific Relief
Act.
12. In view of the above, application filed by the plaintiff is
allowed. I.A stands disposed of.
CS(OS) 684/2004
13. In view of allowing of application being I.A No. 17819/2012,
amended plaint along with appropriate court fees be filed within a period of
four weeks. Written statement to the amended plaint be filed on behalf of
the defendant nos. 1 to 3 within a period of four weeks thereafter.
Replication be thereafter filed within four weeks.
14. Parties will file original documents in their power and
possession limited to the amendment now granted alongwith their amended
pleadings and admission/denial of the documents be done by filing an
affidavit attaching thereto an index of documents of other side which will
contain an additional column of endorsement of admission/denial.
15. List before the Joint Registrar for admission/denial of
documents on 22nd February, 2016.
16. List in Court for framing of issues on 14th March, 2016.
VALMIKI J. MEHTA, J
DECEMBER 08, 2015
ib
