Sabiha Sultana & Others vs Ahmad Aziz & Another
2017 Latest Caselaw 1525 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       CS(OS) 2958/2011
        SABIHA SULTANA & OTHERS                          ..... Plaintiffs
                     Through Mr Aly Mirza, Advocate & Ms Nisheeta
                     Anand, Advocate.
                     versus
        AHMAD AZIZ & ANOTHER                       ..... Defendants
                     Through Mr Arvind Bhatt and Mr Kuber Giri,
                     Advocate for D-1 with D-1 in person.
                     Mr Kunal Kohli, Advovcate for D2/DSIIDC

        CORAM:
        HON'BLE MR. JUSTICE VIBHU BAKHRU
                     ORDER

        %            22.03.2017
VIBHU BAKHRU, J

IA No.12357/2015

1. The plaintiffs and defendant No.1 (hereafter 'the defendant') are siblings. The plaintiffs have filed the present suit praying for partition of specified immovable properties which they assert form a part of the estate of the Late parents of the plaintiffs and the defendant. They allege that the defendant has illegally and improperly, by playing a fraud on the authorities (defendant No.2), succeeded in having the properties in question mutated in his name. The plaintiffs also allege that the defendant had fraudulently got the sale deeds/gift deeds executed from their mother in respect of some of the suit properties.

2. The defendant filed his written statement, inter alia, referring to

various registered documents through which the defendant claimed exclusive title over the suit properties. The plaintiffs have countered the claim by mainly alleging that "the defendant is trying to show his ownership on the basis of a forged and invalid document".

3. The suit was filed on 16.11.2011. The defendant had filed his written statement in February, 2012 and the plaintiffs had filed their replication on 27.03.2012.

4. The plaintiffs have filed the present application, inter alia, seeking to amend their replication by introducing two paragraphs. By way of the first paragraph, the plaintiffs now seek to plead that their Late mother Fatima Begum was ailing prior to her death on 07.09.2009 and was suffering from large number of ailments. They seek to introduce a plea that she had executed a Hiba-bil-Ewaz/sale deed for the property in favour of the defendant in contemplation and pressure of imminence of her death and therefore, the transfer of the suit property to defendant was hit by the doctrine of marz-ul-maut and is, consequently, liable to be declared void ab initio.

5. By way of the second paragraph, the plaintiffs seek to plead that the mother of the parties was not educated and was not conversant with English or worldly affairs and therefore, the Wills and sale deeds executed by her could not be prepared in English as she did not understand the contents of the said documents.

6. Mr Bhatt, the learned counsel for the defendant (non-applicant) has opposed the present application on several grounds. First, he submits that the

plaintiffs were always aware of the alleged facts now sought to be pleaded and therefore, such amendments at a belated stage ought not to be permitted. He also states that the trial has now begun and unless the plaintiffs establish that in spite of due diligence, they could not have raised the pleas now sought to be raised, no such amendment could be permitted.

7. Second, he submits that no reason has been provided in the application for seeking the amendments at a belated stage. He submits that in the absence of any explanation for not making the necessary pleadings at the relevant stage, an application for amendment cannot be permitted. Third, he submits that the pleadings now sought to be introduced are contrary to the affidavit filed by the plaintiff No.4 wherein she has expressly stated that the mother of the parties was in proper mental health till her last breath.

8. Lastly, he submits that a totally new plea has been now introduced to challenge the documents of title in favour of the defendant and it was never in issue that the Late mother of the parties had executed the documents in contemplation of her death or under pressure of imminence of death. The plaintiffs had not traversed that Late Fatima Begum was fully alert, active and involved in the household prior to her death. The plaintiffs' case is essentially that the defendant had secured the execution of the deeds by fraud.

9. Mr Mirza, learned counsel appearing for the plaintiffs submitted that no new facts were being introduced and the fact that Late Fatima Begum was suffering from ill health, was an admitted fact. He referred to the written statement filed by the defendant wherein it was admitted that Late Fatima

Begum was suffering from Scleroderma and later Myelodysplastic Syndrome. He also referred to the replication where plaintiffs have mentioned that Fatima Begum was not in good health and was suffering from some mental/depression problems in February, 2008. He submitted that no new facts were being pleaded.

10. He also referred to the following decisions of this court: Sobhag Narain Mathur v. Pragya Agarwal and Others: (2008) 106 DRJ 355; Abdul Mueed and Others v. Hammad Ahmed and Others: 233 (2016) Delhi Law Times 246; Link Engineers (P) Limited v. M/s ASEA Brown Boveri Limited & Ors.: 140 (2007) Delhi Law Times 533 and Rajesh Sharma v. Kishan Pal and Anr.: (2011) 126 DRJ 34 in support of his contention that the trial had not begun and therefore, the proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908 (hereafter 'CPC') was not applicable. He further contended that since the proviso to Order VI Rule 17 CPC was not applicable, the plaintiffs' application could not be rejected, even if it did not indicate sufficient reasons for seeking the amendments.

11. I have heard learned counsel for the parties.

12. Order VI Rule 17 CPC expressly provides that the court may at any stage of the proceedings allow either party to alter or amend its 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. Proviso to Order VI Rule 17 CPC proscribes permitting any amendment 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.

13. In the present case, the issues were framed by the court on 19.03.2015 and the plaintiffs were directed to file the affidavits of evidence of all witnesses within a period of four weeks from that date and the suit was set down for recording of plaintiffs' evidence. However, admittedly, the plaintiffs have not filed the affidavit of their witnesses as yet. The Supreme Court in the case of Kailash v. Nanhku and Others: 2005 (4) SCC 480 had observed that "in a civil suit, the trial begins when the issues are framed and the case is set down for recording of evidence". However, in Baldev Singh and Ors v. Manohar Singh and Anr.: (2006) 6 SCC 498, the Supreme Court had considered the question of commencement of trial in the context of Order VI Rule 17 CPC and, inter alia, observed that "commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments".

14. The above view expressed in Baldev Singh (supra) has been consistently followed by this court in various decisions cited by Mr Mirza. In view of the above, since the affidavits of witnessess have not been filed, the trial in the present case cannot be stated to have commenced; therefore, the proviso to Order VI Rule 17 is not applicable. However, that does not mean that the party seeking amendment is not required to provide any reason or explanation for not taking the said pleas at the initial stage.

15. In the present case, no reason or justification has been provided by the

applicants to state why the pleadings now sought to be introduced, were not made at the initial stage. Clearly, an application for amendments is not to be allowed merely on a party asking for the same, without providing any justification for seeking such amendments. The only explanation for introducing the proposed amendments stated in the application is that "the proposed amendments are only a dilation of the pleas already taken by the plaintiffs" and that "the proposed amendments are relevant for complete and comprehensive adjudication of the disputes".

16. Although, averments have been made in the pleadings that Late Fatima Begum was not in a good health, there is no plea that the documents executed by her were void under the doctrine of Marz-ul-Maut or that the documents executed by her were void ab initio as having been executed under the pressure of imminence of death and therefore void.

17. Indisputably, the plaintiffs were fully aware of the medical condition of their mother and all the facts now sought to be pleaded were within the knowledge of the plaintiffs. There is thus no plausible reason why the pleas sought to be taken now were not taken in the initial stage.

18. The contention that since the proviso to Order VI Rule 17 CPC is not applicable, the applicants would not require to provide any explanation for not making the necessary pleadings at the initial stage, is wholly without merit. In Bharti Cellular Limited v. Department of Telecommunications: 2012 (4) ARB LR 473 (Delhi), this court had rejected the plea for an amendment sought to be introduced by way of "abundant caution". Similar view has been expressed by other high courts as well. There is no dispute

that the court should adopt a liberal approach for permitting amendments at a pre-trial stage; but, this principle cannot be extended to mean that amendments should be allowed for the asking without the party seeking such amendments providing any justification for the same.

19. It is also relevant to note that six years have passed since the plaintiffs instituted the suit. The principal controversy raised in the present suit is with regard to whether the title documents executed in favour of the defendant were obtained by fraud. The issue whether the documents in question were executed by Late Fatima Begum under pressure of imminence of death is in substance, a new plea which is sought to be raised for the first time by way of the amendments. As noted above, the defendant had expressly stated in his written statement that "the mother was a strong willed and a clear headed lady. So much so that despite Scleroderma and later Myelodysplastic Syndrome the way she kept abreast of business and lived life, family and social, and continued cooking delicacies in kitchen, was often commented upon with admiration". The aforesaid averment was not specifically traversed by the plaintiffs in their replication. No controversy was raised as to whether Late Fatima Begum was not fully alert or was under pressure of imminence of death during her last days. In the circumstances, this court is unable to accept that the amendments now sought are to bring out the real questions in controversy between the parties.

20. In regard to the contention that the amandments sought are contrary to the affidavit affirmed by plaintiff No.4, Mr Mirza stated that he had no authority to appear for plaintiff No.4. The present application has been made on behalf of the plaintiffs and there is no indication in the application that

the applicants exclude plaintiff No. 4. It is seen that the replication sought to be amended is filed on behalf of all the plaintiffs and clearly, no amendment in the said common replication can be permitted without all the plaintiffs joining to request the same. Thus, in essence, the applicants are seeking to file a separate replication at this stage.

21. More than two years have now lapsed since the issues were framed and the matter was set down for recording of evidence, however the plaintiffs have delayed the proceedings by filing applications. This court is inclined to accept Mr Bhatt's contention that the plaintiffs are seeking to delay the present suit.

22. For the reasons stated above, the application is dismissed.

IA No. 12353/2015

23. The learned counsel for the non-applicant/defendant has referred to the orders dated 19.03.2015 and 20.04.2015 passed by a bench of Hon'ble Justice Waziri and states that the question now sought to be raised was effectively contested and considered by the court in those two orders.

24. It appears that the present application seeks a review of those orders. Accordingly, list before the bench of Hon'ble Justice Waziri subject to orders of Hon'ble the Judge Incharge (Original Side).

25. List on 17.04.2017.

VIBHU BAKHRU, J MARCH 22, 2017 pkv