Akshay Mehta & Ors. vs Smt. Usha Dutta & Ors.
2017 Latest Caselaw 6981 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                            Judgment delivered on: 05th December 2017
+      CS(OS) 2/2007

AKSHAY MEHTA & ORS.                                           ..... Plaintiffs

                                   versus

SMT USHA DUTTA & ORS.                                      ..... Defendants

Advocates who appeared in this case:
For the Plaintiffs   :       Mr Arun Francis
For the Defendants       :   Mr Rajesh Yadav and Mr Sanjay Kumar Chhetry
                             for D-2 to 4.
                             Ms Maninder Acharya, Senior Advocate with
                             Mr Yashraj Singh Deora, Mr Ragya Vaidehy Singh,
                             Ms Sanjana Saddy, Mr Shakeel Sarwarwani,
                             Mr Serman Rawat and Mr Sahil Sood for D-10.

CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
                               JUDGMENT

SANJEEV SACHDEVA, J

IA No.7923/2014(on b/o. D-2 to 4 u/O.VI R.17 CPC)

1. By this application, under Order VI Rule 7 of the Code of Civil Procedure (CPC), Defendant Nos.2 to 4 seek amendment of the Written Statement dated 22.10.2007.

2. It is contended in the application that the Written Statement dated 22.10.2007 is no Written Statement in the eyes of law. This ==========================================================

contention is premised on the allegation that the Written Statement was not prepared at the instance of the Defendants. The Applicants/Defendants had not appointed Lawyer. It is contended that the Lawyer of Defendant No.10 was advising them and Defendant No.10 had told the Applicants not to bother about the legal proceedings. It is contended that the Written Statement was prepared and filed by the Lawyers of Defendant No.10 and was not shown or read out to the Applicants.

3. Further, it is contended, that the Written Statement is not verified by any of the Defendants and in the absence of the verification, the Written Statement cannot be taken to be a Written Statement.

4. It is further contended that Defendant No.3 - Smt Shashi Mehta was asked to sign only one page which appears to be the last page of the Written Statement and likewise, Defendant No.6 Shri Rajneesh Mehta was asked to sign the same page on behalf of Defendant No.2 - Smt Saroj Mehta.

5. It is contended that Rajneesh Mehta has signed the same as an Attorney but no power of attorney executed by Smt Saroj Mehta in favour of Shri Rajneesh Mehta has been placed on record.

6. Further, it is contended that the affidavits appended to the Written Statement were signed but were not prepared by the ==========================================================

Applicants and the Applicants also did not swear affidavits. It is, on these grounds, it is contended that the Written Statement stated to have been filed on behalf of the Defendant Nos.2 to 5 is no Written Statement in the eyes of law.

7. It is further contended that there have been new developments, in the meantime, which, even if the Written Statement is taken to be the Written Statement of the Applicants, have necessitated changes to their defence. It is contended that the bone of contention is the Will of 1994 and investigations have revealed that not only the Will of 1994 was a forged and fraudulent document but there have been large scale forgery in the Plaintiff's no objection affidavits filed with the Land & Development Office (L&D.O.) on 20.05.2005 and again on 17.08.2005. It is further contended that the records with the Sub- Registrar Office were tampered, with an attempt to authenticate the forged Will of 1994. It is, on these grounds, that the said application has been filed seeking amendment of the Written Statement dated 22.10.2007 on behalf of Defendant Nos.2 to 5.

8. The Plaintiffs have not filed any reply to the application. Reply has only been filed on behalf of the legal heirs of Defendant No.10 contending that since allegations have been made against Defendant No.10, it has necessitated the filing of a reply to the said application seeking amendment of the Written Statement.

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9. On 08.11.2016, this Court noticed the contention of Defendant Nos.2 to 5 that the Written Statement dated 22.10.2007 was not a Written Statement in the eyes of law. This question was further raised by these Applicants on 25.07.2017. On 25.07.2017, it was held that since the Written Statement dated 22.10.2007 was neither signed nor supported by an affidavit of Defendant No.5, it could not be treated as a Written Statement on behalf of Defendant No.5. The arguments were accordingly heard, vis-a-vis Defendant Nos.2 to 4.

10. In light of the contentions raised by the Applicants contending the Written Statement is no Written Statement in the eyes of law, it may be expedient to examine certain facts pertaining to the Written Statement, which are borne out from the records of the case.

11. The Written Statement is dated 22.10.2007. The Written Statement is titled as "Written Statement on behalf of Defendant Nos.2 to 5". The Written Statement has been filed along with an index dated 22.10.2007. The Index in the Particulars describes the document filed along with the Index as "Written Statement on behalf of Defendant Nos.2 to 5 along with their supporting affidavits" The number of pages shown is pages 1-45. The Index is signed by Shri Rajneesh Mehta (for Saroj Mehta - Defendant No.2), Shashi Mehta - Defendant No.3 and Smt Sheila Mehta - Defendant No.4). On the last page of the Written Statement; at the place of signatures of parties

- it is signed by Shri Rajneesh Mehta (for Saroj Mehta) and Smt ==========================================================

Shashi Mehta. Though the verification is typed, however, below the verification, there are no signatures of any of the parties. The Written Statement is supported by an affidavit of Shri Rajneesh Mehta, who, in the affidavit, states that he is the Power of Attorney Holder of Defendant No.2. Also annexed thereto is the affidavit of Smt Shashi Mehta (Defendant No.3) and Smt Sheila Mehta (Defendant No.4). The record further reveals that a Vakalatnama was also filed and signed in the same fashion, i.e. by Shri Rajneesh Mehta (for Smt Saroj Mehta), Smt. Shashi Mehta and Smt. Sheila Mehta.

12. It may also be noticed that a fresh Vakalatnama was filed by Defendant Nos.3 & 4 on 28.07.2009 engaging a new counsel. Record further reveals that Defendant Nos. 3 & 4 were present in person in Court on 26.10.2009 and their statements were recorded by the Court under Order X CPC.

13. The contention of Defendant Nos. 2 to 4 is that the Written Statement was not prepared at their instance and was not shown or read out to them but was prepared and filed by the Lawyers of Defendant No.10 is not sustainable. The further contention that Defendant No.3 has only signed the last page is also of no consequence and has no substance in as much as there is no requirement in law requiring a party to sign each and every page of the pleading. The procedure which has been consistently adopted in this court has been that a party may sign every page or on the last ==========================================================

page. If a party chooses to sign only the last page of the document and not the other pages, he would nonetheless be bound by the contents of the entire document. A party cannot be permitted to contend that he is not aware as to what is written on or not bound by pages, other than the last page because the party has chosen to only sign one page. Further, perusal of the last page of the instant Written Statement shows that the said page contains part of paragraph No.147 and thereafter, paragraphs 148, 149 etc.... The Applicants signed the last page which commences from a part of paragraph No. 147 and thereafter paragraph 148, 149 and so on, they cannot be permitted to contend that they were not aware that there were other pages preceding the last page that they had signed.

14. The fact that the Written Statement is signed by the Applicants not only at the last page of the Written Statement but also on the Index and is supported by their affidavits, belies their contention. They cannot be permitted to contend that they were not aware of the contents of the Written Statement or that the same was not prepared at their instance. A party, who signs a document is presumed to be aware of the contents of the document and is deemed to have read the same. No party can be permitted to deny a document merely on the ground that it was not shown or read over to him. When a party affixes his signature to a document, he is bound by the contents of the same. If a party chooses not to read the document before signing the

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same, the said party does so at its own risk. In law, such a party cannot be permitted to later contend that he was not aware of the contents of the document and is not bound by the same. Accordingly, the Applicants cannot be permitted to contend that they were not shown or read over the said Written Statement and as such, the Written Statement is no Written Statement in the eyes of law. Since the Written Statement is signed by the Applicants, they are bound by the contents of the same. This contention cannot be accepted and is accordingly rejected.

15. The next contention that the Written Statement dated 22.10.2007 is no Written Statement in the eyes of law as it does not contain any verification, cannot be sustained. Though verification is mandated under Order XVI Rule 15 CPC, however, lack of verification is a mere irregularity, which can be cured. Lack of verification does not invalidate or efface the documents from the records of the case. If the pleading is not verified, it does not cease to be a pleading, but is merely an irregular pleading and the irregularity can be cured at any later point of time. A party, who has filed an irregular Written Statement cannot take benefit of such an irregular pleading until the irregularity is cured, however, such a party cannot be permitted to deny the admissions or contents of the pleading if the same are sought to be read against such a party. The lack of verification cannot lead to the conclusion that the same is not a

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Written Statement in the eyes of law and thereby permit the Applicant to file a fresh Written Statement. It may further be seen that the Written Statement is supported by an affidavit of the Applicants. Since the Written Statement is signed by the Applicants and supported by their affidavit, the lack of verification cannot be a shield to the Applicants, if the contents of the Written Statement are sought to be read as admissions against the Applicants.

16. Another important factor is that the Written Statement is filed on 22.10.2007, Defendant Nos. 3 and 4 appointed a new counsel and filed a fresh Vakalatnama on 28.07.2009. Defendant Nos. 3 and 4 appeared in person in Court on 26.10.2009 and their statement was also recorded by Court. From the date of filing of the Written Statement on 22.10.2007 until the filing of the subject application on 28.04.2014, i.e. for a period of nearly 7 years, the said Defendants did not raise any objection to the Written Statement. There is no explanation rendered by the Applicants as to what prevented them from challenging the said Written Statement for nearly 7 years.

17. Coming to the contention that the said Written Statement has not been signed by Defendant No.2, it may be noticed that the Written Statement has been signed by Defendant No.6 for Defendant No.2. The affidavit in support of the Written Statement states that Defendant No.6 is the Power of Attorney Holder of Defendant No.2. Further, it may be noticed that Defendant No.6 is the son of Defendant No.2. ==========================================================

18. Order VI Rule 14 CPC permits the Written Statement to be signed by a party or by a person authorized by such party. Whether Defendant No.6 was a Power of Attorney Holder or authorized on behalf of Defendant No.2 is a question of fact, which may be established at a later point of time. Merely because there is no Power of Attorney annexed with the affidavit or the Written Statement does not establish the fact that Defendant No.6 was not authorized by Defendant No.2 to sign and file the Written Statement on her behalf. It may also be noticed that it is not denied that the Defendants had been served and were aware of the pendency of the Suit since 2007. Even if assuming it is subsequently held that Defendant No. 6 was not authorised by Defendant No. 2 to file the Written Statement on her behalf, then the sequitur to that would be that Defendant No.2 has chosen not to file any Written Statement for a period of over 7 years. For non-filing of the Written Statement, consequence in law would follow.

19. In view of the above, it cannot be held that the Written Statement is not a Written Statement in the eyes of law. The contention of the Applicants to that effect is accordingly not sustainable and is accordingly rejected.

20. Since, the contention of the Applicants that the Written Statement is no Written Statement in the eyes of law has been rejected, in terms of order dated 25.07.2017, the application is to be ==========================================================

considered on merits. The main ground for seeking amendment is new developments.

21. With regard to the new developments contended by the Applicants for seeking amendment of the Written Statement, it may be seen that on the one side, the Applicants contend that the Written Statement dated 22.10.2007 is not a Written Statement in the eyes of law, on the other, seek amendment of the same.

22. Firstly, the Applicants cannot be permitted to approbate and reprobate. Secondly, it may be seen that the only contention raised with regard to the new development, based on which the amendment is sought, is that a fraud has been unearthed, which has necessitated change to the defence.

23. The fact that the Applicants contend that the new developments have necessitated a change to the defence, demolishes the entire contention of the Applicant that Written Statement is no Written Statement in the eyes of law.

24. The contention is that investigations have revealed that not only the 1994 Will is a forged and fraudulent document but there has been large scale forgery in the Plaintiff's no objections affidavit filed with L&D.O. on 25.05.2005 and then again on 17.08.2005 and further the records at the Sub-Registrar Office were tampered, with an attempt to authenticate the forged 1994 Will.

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25. The Applicants have not stated as to what was the investigation which the Applicants carried out. There is no details of the alleged forgery as to what is the forgery or how there is any forgery. The Applicants have not stated as to what kind of investigation was carried out, how any fraud was discovered or what was the fraud that was discovered. The allegations made are completely bereft of any details. The Applicants have not stated as to when the alleged fraud was unearthed, entitling or giving rise to the cause of action to the Applicants to impugn the said Will or contend about forgery. Further, it is not stated that the Applicants have taken any steps to challenge any of the proceedings or documents filed before the L&D.O or the Sub-Registrar Office. The contentions clearly seem to be mere bald allegations without any substance.

26. The Applicants have not shown any reason as to why the application was being filed at that stage apart from the alleged contention that the Written Statement is no Written Statement in the eyes of law. The Applicants have not explained the delay in filing the application. They have not stated as to when the new alleged developments became known. Clearly, it is an attempt on the part of the Applicants to resile from the admission made in the Written Statement already filed on record. It is settled position of law that party cannot be permitted to resile from the admissions made and

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simply wish away pleadings. Further, it is clearly an attempt on part of the Applicants to delay the disposal of the Suit.

27. In view of the above, I find no merit in the application, the application is accordingly dismissed with costs quantified at Rs.25,000/-.

CS(OS) 2/2007

28. List the Suit before the Roster Bench, on 12.12.2017, for directions.

29. Order Dasti under signatures of Court Master.

SANJEEV SACHDEVA, J December 05, 2017 'Sn'

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