Smt. Deepa Singh vs Smt. Sharda Jootla And Ors.
2015 Latest Caselaw 4100 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                       Date of Decision: May 21, 2015

+     CS(OS) 554/1996

      SMT. DEEPA SINGH                            ..... Plaintiff
                    Through            Mr.Girdhar Govind, Mr.Sharat
                                       Kapoor and Mr.Noor Alam, Advs.

                          versus

      SMT. SHARDA JOOTLA AND ORS.      ..... Defendant
                    Through Mr.Manish Vashisht and Mr.Rikky
                            Gupta, Advs. for D-1
                            Mr.Y.R.Sharma, Adv. for LRs of D-3

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.(Oral)


IA No.14304/2014
1.

This is an application under Order VI Rule 17 CPC seeking amendment of the plaint filed by the plaintiff. The suit is filed by the plaintiff seeking a decree of partition, rendition of accounts of properties which are detailed in Annexure A to the plaint. The parties are said to be the Legal Heirs of late Shri Gurbax Singh Jootla who is said to have died intestate on 13.1.1989 leaving behind plaintiff and defendants as co-owners. Defendant No.1 is the mother of the plaintiff, defendant No.2 is the brother and defendant No.3 is the sister.

2. By the present application it is stated that inadvertently and by oversight the flat at Kolkatta being 17/1C -Alipore Road, Niharika 704 Kolkatta was not added as one of the properties in Annexure A to the plaint . By the amendment the schedule is sought to be amended to add this flat as being part of the estate of late Shri Gurbax Singh Jootla.

3. Learned counsel appearing for the plaintiff has contended that the suit is only at a preliminary stage and evidence has not yet started. The plaintiff intended to mention the Calcutta property as is apparent from the title of the suit on a reading of paragraph 5 of the plaint. Hence, it is averred that the omission was only bonafide. The proposed amendment does not change the nature of the suit and the present amendment should be allowed.

4. Learned counsel appearing for defendants No.1 and 2 has vehemently opposed the present application on various grounds. It is firstly urged that the application is utterly frivolous and without any basis. The suit was filed in 1996 and now 18 years thereafter the plaintiffs have woken up to claim that there is a typographical mistake in the schedule to the property. It is secondly submitted that the averments which are now sought to be introduced are blatantly false on face of the record. It is pointed out that as per sale deed of the Calcutta flat which have been placed on record the said property was purchased by defendants No.1 and 2 jointly vide sale deeds dated 12.9.1995 whereas late Shri Gurbax Singh Jootla died on 13.1.1989. The properties have been acquired by defendants much after the death of late Shri Gurbax Singh Jootla and can by no stretch of imagination be termed to be a part of his estate. It is thirdly submitted that the reliance of the plaintiff on paragraph 5 of the written statement is misplaced. The said para has only a line mentioning that the plaintiff is in joint possession of the

flat in Kolkata. No description of the flat is given. In the written statement that was filed by defendant No.1 it is very clearly stated in response to paragraph 5 that the flat in Kolkata is not a subject matter of the present suit and cannot be taken into consideration. In the replication filed by the plaintiff there is no clarification whatsoever. Hence, way back in 2002 when the written statement was filed plaintiff was aware that the Kolkata property is not part of the suit property. No steps were taken to amend the plaint at that stage. Now 12 years later the plaintiff has woken up to claim that the property was left out inadvertently by mistake. Lastly reliance is placed on reply of plaintiff to an application filed by defendant No.1 under Order 39 Rule 4 CPC being IA No.193/2015. In the reply plaintiff has admitted that Plaintiff No.1 claims to be the owner of the property in Kolkata. Hence it is urged that the proposed amendment is malafide with intent to entangle a self acquired property of defendant Nos. 1 and 2 in litigation.

5. In rejoinder learned counsel for the plaintiff submits that the present stage is not the stage to go into the merits of the averments of the plaintiff. At this stage, this Court should not test the authenticity of the claim of the plaintiff for the purpose of deciding as to whether amendment application should be allowed or not. Hence, it is submitted that the contentions of the defendant on merits are meaningless.

6. In my opinion, the contentions of the plaintiff on the face of it has no merits. Firstly, it is not possible to accept the contention that the plaintiff intended to always include this property in the schedule but inadvertently missed out. The relevant paragraph of the plaint relied upon by the plaintiff, namely, paragraph 5 of the plaint reads as follows:-

"5. That the property situated in Greater Kailash was leased

out to WHO by the father of the plaintiff during his life time, whereas the plot in Faridabad is a vacant plot so the plaintiff is in joint possession of these alongwith the flat in Calcutta in which the defendant No.1 is in permissive possession"

7. In the written statement defendant No.1 has stated as follows:-

"5. That Para 5 of the plaint is wrong and is denied. It is denied that the plaintiff is in joint possession of any of the properties mentioned in the para under reply. Moreover, the flat situated at Calcutta does not form part of the subject matter in the present suit and thus, cannot be taken into consideration."

8. In the replication there is no attempt to clarify this position. The pleadings do not support the contention of the plaintiff that the plaint envisaged a reference to the Kolkata property as being part of the estate of late Shri Gurbax Singh Jootla.

9. I also cannot help but notice that the present application has been filed on 31.7.2014. Reply to IA No.193/2015 has been filed by the plaintiff on 27.4.2015 i.e. after the application for amendment.

10. The stand of the plaintiff that the extent to which Kolkata property was a part of estate of Mr.Gurbax Singh Jootla is completely demolished by the submission made by the plaintiff in 2015 in the said reply to IA No.193/2015. Relevant portion of the said reply of the plaintiff reads as follows:-

"10.... The defendant No.1 claims to have no money but is the owner of the property 17/1C „Niharika‟ 704, Alipore Road , Calcutta ( having a market value of at least 10 crores). If it was purchased by Shri G.S.Jootla it should have been mentioned in the list of properties when she asked for probate. If it was bought later how did the defendant No.1 manage to procure the funds to get it as she claims to be so poor. The

applicant be put to strict proof to show that sale deed to ascertain how much she paid for this property and the source of the funds. The defendant No.1 resides and maintains this apartment which is a luxury three bedroom apartment; the defendant No.1 has been living in this apartment till Shri Gurbux Singh Jootla was alive. This is one of the costliest and elite areas of Calcutta adjoining the 5 Star Hotel Taj Bengal."

11. The above stand is wholly contrary to the claim of the plaintiff as made in the present application for amendment.

12. Two other things also persuade me to conclude that the present application is completely devoid of merits and lacks bona fide. As per undenied documents placed on record by defendants No.1 and 2 the present property in Kolkata was purchased on 12.9.2005 whereas Mr.Gurbax Singh Jootla has died in 1989. This property obviously cannot form part of the estate of Mr.Gurbax Singh Jootla as it is sought to be stated. There is no relief sought in the present suit regarding declaration of title to the said property on any grounds whatsoever. Secondly, the delay in moving the application in my opinion completely shuts out the plaintiff‟s contention that the property was always envisaged as part of the estate of late Shri Jootla. The suit is filed in 1996. Defendant No.1 has filed her written statement in 2002 clearly stating that the present property is not part of estate of late Shri G. S. Jotla, as per the plaint. The present application is filed in 2014. Hence, after defendant No.1 had clarified that the present property is not a part of the plaint in 2002 it has still taken 12 years for the plaintiff to wake up and move the present application.

13. To look at accepted principles of amendments, reference may be had to the judgment of the Supreme Court in the case of 'Revajeetu Builders &

Developers vs. Narayanaswamy & Sons & Ors.', 2009 (13) SCALE 241. The Hon‟ble Supreme Court in para 67 held as follows:-

"67. On critically analyzing both the English and Indian cases, some basic principles emerges 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."

14. The Supreme Court in the case of Abdul Rehman & Anr. Vs. Mohd. Ruldu & Ors., (2012) 11 SCC 341 in paras 17 and 18 held as follows:-

"17. In Pankaja v. Yellapa, this Court held that if the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation, the same should be allowed. In the same decision, it was further held that an amendment seeking declaration of title shall not introduce a different relief when the necessary factual basis had already been laid down in the plaint in regard to the title.

18. We reiterate that all amendments which are necessary for the purpose of determining the real questions in controversy between the parties should be allowed if it

does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties."

15. Keeping in view the long delay in filing of the present application, the stand taken by the plaintiff in his reply to IA No.193/2015 the fact that sale deed in favour of defendants No.1 and 2 have been executed after the death of Shri G. S. Jootla shows that the present amendments which are sought completely lack bona fide. The amendments are not imperative for proper and effective adjudication of the case. It appears to be a mala fide attempt on the part of the plaintiff to entangle a property owned by defendant Nos. 1 & 2 in their personal capacity in the present litigation. The present amendments are not necessary for the purpose of determining the real questions in controversy between the parties.

16. The present application being without merits is dismissed. CS(OS)554/1996 List on 29.10.2015 for framing of issues and for hearing IA No.193/2015.

JAYANT NATH, J.

MAY 21, 2015 n