Delhi High Court
Paramjeet Singh & Anr vs Delhi Development Authority on 22 September, 2016
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 22.09.2016
+ CM(M) 553/2016 & CM No.20960/2016
PARAMJEET SINGH & ANR ..... Petitioners
Through Mr.B.L.Chawla, Advocate
versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through Mr.Sanjeev Rajpal, Advocate
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. By the present petition, the petitioners seek to impugn the order dated
18.04.2016 by which an application of the petitioners under Order 6 Rule 17
CPC for amendment of the plaint was dismissed.
2. The plaintiffs/petitioners have in 1994 filed a suit for permanent
injunction against respondents DDA, MCD and others. It is stated in the
plaint that the suit relates to the land and building situated in Village Basai
Darapur, New Delhi and forms part of a larger area of land where number of
dwelling house and other structures are in existence. The land was said to be
under the control and management of the Railway authorities. It is stated that
the suit land was allotted to the plaintiffs/petitioners and others who are in
actual physical use, occupation and possession. The petitioners/plaintiffs
claim to have constructed a factory shed on the suit land and the
plaintiffs/petitioners alongwith their father are carrying on their business in
the suit land under the name and style of M/s H.B.Shiv Foundary.
3. Subsequently, in 1982 the suit land was transferred to Delhi
Development Authority (in short 'DDA') but it is stated that the
plaintiffs/petitioners continued to remain in possession of the suit land for
more than a period of 18 years. It is further stated that a number of officials
and employees of MCD have demolished a part of the factory shed of the
plaintiffs/petitioners. It is contended that defendant has no locus standi or
any right to intervene and interfere in the lawful possession of the
plaintiffs/petitioners without due process of law. Hence, the suit is filed
claiming permanent injunction against defendants to restrain them from
dispossessing the plaintiffs/petitioners and also from demolishing the factory
shed and structures exists thereon.
4. It may be noted that though in the original plaint there were five
defendants including defendant No.2 MCD, it appears that the said
defendants have been deleted in 2004. Presently, only DDA/respondent is
party to the plaint.
5. The evidence of the parties has been completed. The matter is now
fixed for final argument. At this stage, the petitioners have filed the present
application under Order 6 Rule 17 CPC where now it is proposed to amend
paras of the plaint to add the contention that the petitioners are legally
entitled to remain in possession and in case the land in question is required
for development activities of the respondent, then the petitioners are entitled
to an alternative site for rehabilitation of the petitioners as per the policy of
the Government and Scheme and Guidelines issued by the DDA from time
to time. Hence, the prayer clause was also sought to be amended and the
petitioner now seeks a decree for declaration against the respondent
declaring that the petitioners are entitled to allotment of alternative site for
their rehabilitation before being dispossessed from the suit property.
6. The trial court by the impugned order dismissed the application stating
that the facts which are proposed to be brought on record were in the
knowledge of the petitioners when the suit was filed. The amendment is
sought at the end of the trial when in fact, defence evidence has already been
closed and the matter is pending for final argument. Earlier also it was noted
that the petitioners have filed an application under Order 47 Rule 1 & 2 CPC
which was dismissed and the said order was challenged before this court.
This court had also dismissed the petition on 19.09.2013. Hence, the trial
court concluded that the application is a ploy to delay the trial of the case
and dismissed the application.
7. The learned counsel appearing for the petitioners has submitted that
the nature of the suit does not change by the proposed amendment. He relies
upon the judgment of the Supreme Court in the case of Sampath Kumar v.
Ayyakannu, 2002 Law Suit (SC) 881 to contend that where for the stated
relief, if it is permissible to file an independent suit, then same relief can be
prayed by incorporating the relief in a pending suit instead of filing a new
suit. He also relies upon the judgment of the Supreme Court in the case of
Raghu Thilak v. S.Rayyapan, 2001 RLR 217 (SC) to contend that
amendment should be liberally allowed to prevent multiplicity of
proceedings.
8. Order 6 Rule 17 CPC reads as follows:
"17. Amendment of Pleadings.- the Court may at any stage at
the proceedings allow either party to alter or amend his
pleadings in such manner and on such terms as may be just, and
all such amendments shall be made as may be necessary for the
purpose of determining the real questions in controversy
between the parties:
Provided that no application for amendment shall be allowed
after the trial has commenced, unless the court comes to the
conclusion that in spite of due diligence, the party could not
have raised the matter before the commencement of trial."
9. As per proviso, no application for amendment is to be allowed after
the trial has commenced, unless the court comes to the conclusion that in
spite of due diligence, the party court not have raised the matter before the
commencement of trial.
10. In the present case trial has been completed.
11. A perusal of the application, filed by the petitioners shows that no
reasons are given as to why the plea which is now sought to be raised could
not be raised when the suit was filed. In the absence of any cogent reason,
the trial court rightly inferred that the petitioners have not been able to
satisfy the court that in spite of due diligence, he could not move the
application for amendment of the plaint before.
12. Even otherwise, in my opinion, the effect of the proposed amendment
was to change the entire nature of the suit. The suit is filed for permanent
injunction to restrain the defendants from dispossessing the petitioners or
from demolishing the factory shed based on their continuous possession for
long period of time. This is now sought to be changed by seeking a decree of
declaration that in case the petitioners are to be disposed from the suit
property then the petitioners would be entitled to be allowed an alternative
site for their rehabilitation by the respondent DDA.
13. The judgment of the Supreme Court in the case of Sampath Kumar v.
Ayyakannu (supra) does not in any manner help the petitioners. That was a
case where before the commencement of trial, the plaintiffs therein had
moved an application under Order 6 Rule 17 CPC. Suit had filed by the
plaintiffs therein for permanent injunction. During the pendency of the suit,
the defendants are said to have forcibly dispossessed the plaintiffs. In those
facts the question arose whether it is permissible to convert a suit for
prohibitory injunction into a suit for declaration of title and recovery of
possession. The facts of those cases are entirely different.
14. I do not find any merit in the present petition. There is no material
illegality in the impugned order and the same is accordingly dismissed.
JAYANT NATH, J.
SEPTEMBER 22, 2016/v
