Delhi High Court
Uday Khanna vs Preeti Khanna & Others on 14 July, 2017
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2261/2013 & I.A.Nos.18586/2013, 5168/2014,
7594/2014, O.A. No.122/2016
UDAY KHANNA ..... Plaintiff
Through Mr.Ateev Kumar Mathur with
Mr.Amol Sharma, Advocates.
versus
PREETI KHANNA & OTHERS ..... Defendants
Through Mr.D.P.Singh with Mr.Devansh
Aray, Advocates for D-2.
Mr.Asutosh Lohia with Ms.Pragya
Srivastava, Advocates for D-3.
Mr.Jayant K.Mehta with
Mr.Ramesh K.Mishra,
Ms.Snigdha Sharma, Mr.Mukesh
Kumar and Mr.Shaurya Kuthiala,
Advocates for applicant in O.A.
No.122/2016.
% Date of Decision: 14th July, 2017
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
I.A.No.18586/2013
Learned counsel for the parties are directed to maintain the
status quo with regard to the title of the property in question.
However, to avoid the property from being wasted, defendants are
permitted to lease/rent out the property in question.
The defendants are directed to file the yearly accounts of the
property in question commencing 31st March, 2018.
Accordingly, the application stands disposed of.
I.A.No.7594/2014
1. Present application has been filed for amendment of the plaint
under Order VI Rule 17 CPC to incorporate the relief of declaration
thereby declaring that the Gift Deed dated 03 rd February, 1987 in
respect of property bearing no.10, Sunder Nagar, New Delhi is a
forged, false and fabricated document and is void in the eyes of law.
Mandatory injunction is also prayed for directing the Sub-Registrar-
III, Asaf Ali Road, New Delhi to cancel in its record the aforesaid Gift
Deed.
2. Learned counsel for the plaintiff states that the amendment has
been necessitated in view of the defence taken by the defendants in
their written statement, where for the first time, they introduced a
fabricated and forged registered document being the Gift Deed dated
03rd February, 1987.
3. On the other hand, learned counsel for the defendants pray that
this Court should refuse the amendment application as the same is
barred by limitation. They state that the Gift Deed which has been in
public domain for 30 years, cannot be challenged now. In support of
their submissions, they rely upon the judgment of the Supreme Court
in Radhika Devi Vs. Bajrangi Singh & Ors. (1996) 7 SCC 486,
wherein it has been held as under:-
"6. In that case this Court considered the cross-objections
to be treated as a cross-suit since no alteration was being
made in the written statement to treat it as a plaint
originally instituted. The amendment which was sought to be
made was treated to be clarificatory and, therefore, this
Court had upheld the amendment of the written statement
and treated it to be a cross-suit. The ratio therein squarely
applies to a fact situation where the party acquires right by
bar of limitation and if the same is sought to be taken away
by amendment of the pleading, amendment in such
circumstances would be refused. In the present case, the gift
deed was executed and registered as early as 28-7-1978
which is a notice to everyone. Even after filing of the written
statement, for 3 years no steps were taken to file the
application for amendment of the plaint. Thereby the
accrued right in favour of the respondents would be defeated
by permitting amendment of the plaint. The High Court,
therefore, was right in refusing to grant permission to
amend the plaint."
4. Learned counsel for the defendants further state that the Gift
Deed bears the signature of the plaintiff and has been attested by
witnesses. They further state that the attesting witnesses have also
filed a suit for defamation against the plaintiff. They point out that the
Department of Archives has produced the Gift Deed before this Court
on 16th November, 2016. They also state that the proceeding initiated
by the plaintiff under Section 156(3) Cr.P.C. has been dismissed.
Consequently, according to them, the averments on the basis of which
the amended relief has been sought, are false and the present
application is devoid of any merit.
5. In rejoinder, learned counsel for the plaintiff states that the
Complaint Case under Section 200 Cr.P.C. is still pending
consideration.
6. It is settled law that rule of amendment is essentially a rule of
justice, equity and good conscience and while considering whether an
amendment application should be allowed or not, the court should not
go into the correctness or falsity of the case in the amendment.
7. The Supreme Court in Rajesh Kumar Aggarwal v. K.K. Modi,
(2006) 4 SCC 385 has held as under:-
"19. While considering whether an application for
amendment should or should not be allowed, the court
should not go into the correctness or falsity of the case in
the amendment. Likewise, it should not record a finding on
the merits of the amendment and the merits of the
amendment sought to be incorporated by way of amendment
are not to be adjudged at the stage of allowing the prayer
for amendment. This cardinal principle has not been
followed by the High Court in the instant case."
(emphasis supplied)
8. Consequently, this Court is of the view that it cannot go into the
merits of the averments in the amendment application.
9. This Court is also of the view that the judgment in Radhika
Devi (supra) is inapplicable to the facts of the present case. While in
Radhika Devi (supra) the written statement incorporating the defence
of Gift Deed had been filed in 1988, the amendment application had
been filed in 1992. However, in the present case, the amendment
application, according to the plaintiff, has been filed within two
months of the defence of Gift Deed being taken by the defendants in
their written statements.
10. Consequently, without prejudice to the rights and contentions of
the parties, present amendment application is allowed. The defendants
are given liberty to raise all their pleas, defences and objections in the
amended written statement, which is directed to be filed within a
period of four weeks. It is made clear that in the event the plaintiff's
relief with regard to the Gift Deed is rejected/dismissed, the plaintiff
shall be saddled with exemplary costs to be paid to the defendants.
Accordingly, the application stands disposed of.
I.A.No.5168/2014
Learned counsel for the applicant wishes to withdraw the
present application at this stage with liberty to file the same after the
amended plaint has been filed.
O.A.No.122/2016
At the request of learned counsel for the applicant/appellant, list
before the Joint Registrar for completion of pleadings on 06 th
September, 2017.
List before the Court on 19th September, 2017.
Interim orders to continue.
MANMOHAN, J
JULY 14, 2017
KA
