Delhi High Court
Manish & Anr vs Monu Yadav & Ors on 23 February, 2017
$~A-35
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision 23.02.2017
+ CM(M) 672/2016 and CM No. 24769/2016
MANISH & ANR ..... Petitioners
Through Mr. Satya Priya Kamrah and
Mr.Mukesh M. Goel, Advocates.
versus
MONU YADAV & ORS ..... Respondents
Through
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. In the present case, respondents No. 1 and 3 have been served. None
is appearing on their behalf.
2. Learned counsel for the petitioners submits that as far as respondent
No.2 is concerned, he is being represented by the same counsel as
respondent No. 1 and that presently, in any case, respondent No. 2 is in
judicial custody.
3. The present petition is filed seeking to impugn the order dated
05.05.2016 passed by the trial court dismissing the application of the
petitioner under Order 6 Rule 17 CPC for amendment of the plaint.
4. The petitioners have filed the present suit against the respondents
seeking permanent injunction to restrain the respondents from interfering in
the peaceful possession, use and enjoyment of the suit property by the
CM(M)672/2016 Page 1
petitioners and not to dispossess them from the suit property without due
process of law.
5. The suit was filed in 2006.
6. Now in 2014, the petitioners have moved the present application
under Order 6 Rule 17 CPC seeking amendment of the plaint stating that the
court had appointed a local commissioner to file his report regarding the
khasra number of the suit property. It is urged that while the petition was
pursuing the matter before this court, the respondent broke open the lock of
the suit property and have entered into possession, hence by an application
for amendment the petitioners seek to add the relief of possession also.
7. The trial court by the impugned order dismissed the application
holding that the Local Commissioner had gone to the premises in 2006 and
there are no cogent grounds to show as to why the petitioners have waited
for so many years to move the present application for amendment. It
concluded that no reasonable person would remain silent for so many years
after being dispossessed from the suit. It also concluded that the amendment
sought is without bona fide and is an attempt to incorporate a new case in
the garb of amendment of the plaint and dismissed the application.
8. Learned counsel for the petitioners has submitted that in any case, the
suit being based on title, the petitioners are entitled to file a fresh suit for
possession. He submits relying upon the judgment of the Supreme Court in
the case of Sampath Kumar vs. Ayyakannu & Anr., AIR 2002 Sc 3369 that
mere delay in moving an application for amendment cannot be fatal to the
amendment application. He further submits that while allowing an
amendment application, the trial court has not to go into the merits of the
averments.
CM(M)672/2016 Page 2
9. A perusal of the impugned order would show that the trial court
appears to have been influenced by the delay on the part of the petitioners in
moving the present application for amendment seeking to add to the
averment of alleged dispossession from the suit property and consequential
relief. Based on the delay, the trial court came to the conclusion that the
contention of the petitioner lacks bona fide. To that extent, learned counsel
for the petitioners is correct in his submissions that the trial court has gone
into the merits of the case and has dismissed the application accordingly.
10. Reference may be had to the judgment of the Supreme Court in the
case of Sampath Kumar vs. Ayyakannu & Anr.(supra) wherein the
Supreme Court held as follows:-
"11. In the present case the amendment is being sought for
almost 11 years after the date of the institution of the suit. The
plaintiff is not debarred from instituting a new suit seeking
relief of declaration of title and recovery of possession on the
same basic facts as are pleaded in the plaint seeking relief of
issuance of permanent prohibitory injunction and which is
pending. In order to avoid multiplicity of suits it would be a
sound exercise of discretion to permit the relief of declaration
of title and recovery of possession being sought for in the
pending suit. The plaintiff has alleged the cause of action for
the reliefs now sought to be added as having arisen to him
during the pendency of the suit. The merits of the averments
sought to be incorporated by way of amendment are not to be
judged at the stage of allowing prayer for amendment.
However, the defendant is right in submitting that if he has
already perfected his title by way of adverse possession then the
right so accrued should not be allowed to be defeated by
permitting an amendment and seeking a new relief which would
relate back to the date of the suit and thereby depriving the
defendant of the advantage accrued to him by lapse of time, by
excluding a period of about 11 years in calculating the period of
prescriptive title claimed to have been earned by the defendant.
CM(M)672/2016 Page 3
The interest of the defendant can be protected by directing that
so far as the reliefs of declaration of title and recovery of
possession, now sought for, are concerned the prayer in that
regard shall be deemed to have been made on the date on which
the application for amendment has been filed."
11. In view of the above, no doubt there was some delay in incorporating
the relief but given the fact that the petitioners can file a suit for possession
even at this stage based on a title, no purpose would be served by adding to
the litigation. It will lead to needless multiple litigation.
12. The suit is filed on title seeking a relief of injunction. The suit is now
sought to be converted into a suit for possession based on title. It cannot be
said that the nature of suit has undergone a change. The impugned order
suffers from material illegality. The impugned order is accordingly quashed.
The application for amendment moved by the petitioners is allowed.
13. In view of the above, the present petition stands disposed of.
14. All pending applications also stand disposed of.
JAYANT NATH, J
FEBRUARY 23, 2017
rb
CM(M)672/2016 Page 4
