Delhi High Court
Rakesh Jain & Ors vs Karnail Singh Kler & Ors on 10 March, 2017
$~A-43
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 10.03.2017
+ CM(M) 284/2017
RAKESH JAIN & ORS ..... Petitioner
Through Mr.S.K.Bhaduri, Ms.Kirti Parmar and
Mr.Mehul Jain, Advocates
versus
KARNAIL SINGH KLER & ORS ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J, (ORAL)
CM No.9619/2017
Exemption allowed, subject to all just exceptions.
CM(M) 284/2017 & CM No.9620/2017
1. By the present petition under Article 227 of the Constitution of India
the petitioner seeks to impugn the order dated 9.12.2016 by which an
application under Order 6 Rule 17 CPC filed by the plaintiff/respondent
No.1 was allowed.
2. The background facts are that respondent No.1 has filed a suit for
cancellation of sale deed dated 13.6.2005 allegedly executed by petitioner
No.1 and respondent No.4. A decree of declaration is also sought that the
sale of property bearing No. R-115, Greater Kailash, Part-I, New Delhi by
defendant No.2 (petitioner No.1) in favour of defendants No.5,6,7, namely,
petitioners No.2,3 and 4 by virtue of sale deed dated 15.3.2007 be declared a
nullity. Permanent injunction is also sought. The petitioners at the initial
stage itself had objected to the Suit as framed stating that the suit for
CM(M) 284/2017 Page 1
declaration and permanent injunction would not lie unless the plaintiff seeks
relief of possession. The said objection was taken by means of an
application under Order 7 Rule 11 CPC. The suit at that time was pending
before this court. This court by order dated 28.9.2015 accepted the said plea
of the petitioner that once a sale deed as per the plaint has been wrongly
executed, the plaintiff will have to seek possession of the suit property for
defendant No.4/respondent no.4 herein.The said application of the petitioner
under Order 7 Rule 11 CPC was disposed of noting that the counsel for the
plaintiff/respondent No.1 has agreed to amend the plaint to seek the relief of
possession of the suit property.
3. Now the present application has been filed by respondent No.1 for
amendment of the plaint. The trial court has noted the objections of the
petitioners and has allowed the application noting that the proposed
amendments are necessary for determination of the real question in
controversy and to avoid further litigation between the parties. Further, the
additional relief of possession which is stated to be added is based on the
same cause of action already disclosed in the plaint. It also noted that in any
case the application has been moved pursuant to order dated 28.9.2015
passed by this court on the application of the petitioner under Order 7 Rule
11 CPC.
4. I have heard learned counsel for the petitioners. The basic grievance
that has been urged before this court is that by the present application under
Order 6 Rule 17 CPC what respondent No.1 is proposing to do is to add
relief that the possession of the suit property in GK-I be given either to the
plaintiff/respondent No.1 or to defendant No.4/respondent No.4.
5. Learned counsel for the petitioners submits that he has no objection
CM(M) 284/2017 Page 2
regarding the relief being added in the plaint for possession in favour of
respondent No.4. He however submits that the plaintiff/respondent No.1
cannot seek relief in his favour and that this is contrary to the earlier order of
this court dated 28.9.2015.
6. In my opinion, the order of this court dated 28.9.2015 cannot said to
bar the relief which is now sought to be added by the respondent No.1. No
doubt, the order states that the respondent No.1 ought to have prayed for
relief of possession in favour of respondent No.4 as it is the stand of the
plaintiff/respondent No.1 that the sale deed has been wrongly issued by the
said respondent No.4. It is petitioners No.2 to 4 who have physical
possession of the property. The application of the petitioner was disposed of
with the following direction:-
"Counsel for the plaintiff agrees that he will accordingly
amend the plaint and seek the relief of the possession of the
suit property and for which time of four weeks is prayed for
and is granted."
7. There is nothing in the said order which debars the
plaintiff/respondent No.1 from seeking relief in his favour. Learned counsel
for the petitioner has submitted that respondent No.1/plaintiff cannot seek
relief of possession for himself. In my opinion, while considering an
application for amendment of the plaint the merits of the amendment which
are sought to be introduced are not to be adjudicated upon at the time of
considering the application for amendment. A perusal of the plaint would
show that various averments have been made by the respondent No.1
regarding the Memorandum of Understanding said to have been executed
with the other Directors of respondent No.4 company. He has also claimed
CM(M) 284/2017 Page 3
that the property in question could not have been sold without the consent of
the plaintiff/respondent No.1, defendant No.1 and defendant No.3 but the
property has been sold by defendants No.1 and 3 without consultation and
prior permission of respondent No.1. There are also serious disputes
between the Directors of respondent No.4.
8. The Supreme Court in Revajeetu Builders and Developers vs.
Narayanaswamy and Sons and Ors., (2009) 10 SCC 84 held as follows:-
"63. On critically analyzing both the English and Indian cases,
some basic principles emerge which ought to be taken into
consideration while allowing or rejecting the application for
amendment:-
(1) Whether the amendment sought is imperative for proper
and effective adjudication of the case;
(2) Whether the application for amendment is bona fide or
mala fide;
(3) The amendment should not cause such prejudice to the
other side which cannot be compensated adequately in terms of
money;
(4) Refusing amendment would in fact lead to injustice or lead
to multiple litigation;
(5) Whether the proposed amendment constitutionally or
fundamentally changes the nature and character of the case?
and
(6) As a general rule, the court should decline amendments if a
fresh suit on the amended claims would be barred by limitation
on the date of application."
9. In the light of this background, in my opinion, the additional relief
sought by the respondent No.1 seeking decree of possession in his favour/in
favour of respondent No.4 company is a relief borne from the facts stated in
CM(M) 284/2017 Page 4
the plaint. As rightly noted by the trial court the proposed amendment
would be necessary for determination of real questions of controversy and to
avoid further controversy between the parties. The relief is bona fide.
10. There is no merit in the petition. Same is dismissed.
JAYANT NATH, J
MARCH 10, 2017
n
CM(M) 284/2017 Page 5
