Delhi High Court
Manju Vats & Ors. vs Meena Pandey on 15 December, 2016
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision : 15.12.2016
+ CS(OS) 1281/2015
MANJU VATS & ORS. ..... Plaintiffs
Through: Mr.Ankit Jain and Mr.Sarvesh Rai,
Advocates
versus
MEENA PANDEY ..... Defendant
Through: Ms.Sukhda Dhamija and
Mr.S.K.Rout, Advocates
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
JUDGMENT (ORAL)
I.A.6448/2016 (u/O 6 R 17 CPC)
The case of the plaintiffs is that the predecessors of the
plaintiffs and the defendant were real sisters and they jointly
purchased the property bearing no.F-45, Bali Nagar, New Delhi by
virtue of a sale deed dated 11.07.1960. Thereafter they executed two
separate Wills dated 16.04.1981 bequeathing their portions in the said
property to the plaintiffs and the defendant, their legal heirs who had
become joint owners of the share in the suit property after the demise
of sisters/predecessors. On these grounds, the plaintiffs had sought
partition of the suit property.
The suit was contested by the defendant. In the written
statement filed by defendant, she had raised the plea that by virtue of
sale deed dated 18.03.1966, the predecessor of the plaintiffs had sold
CS(OS) 1281/2015 Page 1
her entire half share in the suit property to the predecessor of the
defendant. The defendant had also raised the plea that there was Will
dated 08.04.1988 on the basis of which a Letter of Administration had
already been obtained by the defendant.
After filing of the written statement, pursuant of pleas taken by
the defendant, the plaintiffs have moved this application. In this
application, the plaintiffs have sought amendment as shown in para 5.
These proposed amendments relates to the sale deed dated 18.03.1966
and challenged the Will dated 08.04.1988. It is submitted that these
facts are necessary for the determination of the real dispute between
the parties.
The reply to the application was filed by the defendant. The
amendment sought is opposed on the ground that all these facts were
within the knowledge of the plaintiffs and the plaintiffs had concealed
these facts from the court while presenting their suit and this
application is motivated to better their case. It is submitted that the
plaintiffs instead of moving this application ought to have filed a
fresh suit in respect of seeking the reliefs of declaration of
cancellation of sale deed dated 18.03.1966 and of the Will dated
08.04.1988.
I have heard the arguments and perused the record.
Learned counsel for the plaintiffs has argued that the trial of the
case has not begun and therefore the only question which court needs
to consider is whether the amendment sought is essential for the just
decision of the case. It is further argued that while considering this
aspect, the courts did not have to adopt a hyper technical approach
CS(OS) 1281/2015 Page 2
which eventuality lead to injustice and give way to multiplicity of
litigation. Reliance is placed on B.K.Naryana Pillai vs.
Parameswaran Pillai (2000) 1 SCC 712. It is also argued that the
courts have taken the view that where the second suit could be filed
for seeking the relief which has been sought by way of amendment,
then to avoid the multiplicity of the suit the amendment ought to be
relied. Reliance is placed on paras 18 and 20 of the judgment of this
Court in Sumitra Parashar & Anr. Vs. Raj Rani & Anr. 213 (2014)
DLT 381 (DB), which are reproduced as under:
"18. We had for this reason only further enquired from
the counsel for the appellants / defendants whether not
the respondents / plaintiffs could have instituted another
suit for the relief sought by way of amendment of
cancellation of the documents culmination in the
Conveyance Deed dated 17th October, 2005 and the
cause of action wherefor had accrued to the respondents /
plaintiffs only on 3rd January, 2011. No answer was
forthcoming.
20. Once it is held that the second suit could have been
filed for seeking the relief which had been claimed by way
of amendment, the entire conspectus changes. The two
suits entailing the same question of law and fact, in most
likelihood would then have been consolidated for trial.
Thus, by allowing the amendment, the delays have been
curtailed rather than caused. In these circumstances, no
question of any prejudice to the appellants/defendants
also arises. Unfortunately none has looked into matter in
the said perspective."
CS(OS) 1281/2015 Page 3
Learned counsel for the defendant has argued that the plaintiff
wants to change the colour of the plaint. The facts which were even
in their knowledge and ought to have been pleaded were intentionally
concealed.
From the above discussion and perusal of amendment sought
and the written statement, it is apparent that facts the plaintiffs sought
to bring on record by way of amending the plaint are essential for just
decision of the case. All these pleas which the plaintiff now wants by
way of bringing on record the proposed amendment were actually
taken by the defendant in her written statement. Also defendant has
not disputed that the plaintiffs could have filed a fresh suit on the
pleas which have been raised now. The contention of the defendant
that these facts were within the knowledge of plaintiffs and therefore
these pleas are barred by limitation however is open to the defendant
to be raised in her amended written statement.
In view of the above discussion, the application is allowed. The
amended plaint filed along with this application is taken on record.
Amended written statement be filed within 30 days from today.
Rejoinder shall be filed within four weeks thereafter.
I.A.9647/2015 (u/O 39 R 1 & 2 CPC)
List for arguments on 30.03.2017.
DEEPA SHARMA, J
DECEMBER 15, 2016
rb
CS(OS) 1281/2015 Page 4
