Delhi High Court
Anita Anand vs Gargi Kapur & Ors on 20 November, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 02nd November, 2017
Pronounced on: 20th November, 2017
+ CS(OS) 3489/2014
ANITA ANAND ..... Plaintiff
Through : Mr.Abhijat and Mr.Rishabh
Bansal, Advocates.
Versus
GARGI KAPUR & ORS ..... Defendants
Through : Mr.Fanish K Jain and
Mr.Neeraj Gahlaut, Advocates.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
IA No.10957/2017
1. The plaintiff has filed this suit claiming she is an owner of 1/3rd
unpartitioned share of property bearing No. 12/19, Western Extension
Area, Karol Bagh, New Delhi-110005 admeasuring 556 sq. yards. It
is averred by the plaintiff that during the course of arguments in IA
No.4817/2017, under Order 7 Rule 11 CPC, the counsel for the
defendant for the first time had argued the present suit is barred under
Section 3 of the provisions of Prohibition of Benami Property
Transactions Act, 1988 on the ground the plaintiff had not expressly
averred in her suit the suit property was not purchased by the father
for the benefit of his wife Late Gargi Kapur. The said plea under the
Benami Act has not been elaborated by the defendant either in his
written statement or in his application under Order 7 Rule 11 CPC-IA
No.4817/2017.
2. It is alleged in para 8 of the plaint the plaintiff has averred the
suit property was purchased by Sh.Joginder Nath Kapur in the name
of Smt. Gargi Kapur so that she could hold the same for the benefit of
Sh.Joginder Nath Kapur and their children and a purposeful reading of
this assertion would demonstrate the claim of the plaintiff that
although Sh.Joginder Nath Kapur had purchased the property in his
wife's name the intention was it was to be held by defendant No.1 for
the benefit of the family of Sh.Joginder Nath Kapur and not for her
own benefit. The counsel for the plaintiff argued though the said
averments made in para 8 of the plaint sufficiently rebut the
presumption contained in Section 3(2) of the Prohibition of Benami
Property Transactions Act, 1988 so as to prevent any unjustified
advantage accruing to the defendants but out of abundant caution the
plaintiff by this application seek leave to amend the plaint by addition
the following sentence in the beginning of para 8 viz., "the said
property was not purchased by Sh.Joginder Nath Kapur for the benefit
of his wife; Smt.Gargi Kapur".
3. The amended para 8 is given in para 10 of the application.
4. It is argued that the suit is at its nascent stage and the trial has
not yet begun and since the amendment is material and necessary for
the purpose of determining the real question in controversy between
the parties and since it do not add a new cause of action and being
consistent with the original case set up by the plaintiff, it be allowed.
5. Learned counsel for the defendants had argued the amendment
can only be allowed if it determines the real question in controversy
and the question here is if the property belong to Sh.Joginder Nath
Kapur or to his wife. It is argued since the plaintiff has not sought any
declaration that Sh.Joginder Nath Kapur was an absolute owner of the
property, the amendment, even if allowed, would not be determining
the real question(s) involved. Further it is argued the replication filed
by the plaintiff as also her reply in response to the application under
Order 7 rule 11 CPC would reveal she was well aware of the defence
taken by the defendant hence cannot allege that she came to know of
this defect for the first time only when the defendant had argued their
application under Order 7 Rule 11, CPC. Lastly it is averred the
amendment is beyond limitation.
6. There is no doubt to the position of law that pending an
application under Order 7 Rule 11 CPC, the amendment can be
allowed under Order 6 Rule 17 CPC as was held in Wasudhir
Foundation V. C.Lal & Sons 45 (1991) DLT 556 and also in Mrs.Binu
Anand Khanna V. Mr.Ratan Tata, Chairman, Taj Group
MANU/DE/2976/2005.
7. Let me now see what the plaintiff intends to add. The plaintiff
has already averred the subject property was purchased by Sh.Joginder
Nath Kapur in the name of his wife Smt.Gargi Kapur so that she could
hold it for the benefit of Sh.Joginder Nath Kapur and their children.
By way of this amendment the plaintiff only seek to add the said
property was not purchased by Sh.Joginder Nath Kapur for the benefit
of his wife Smt.Gargi Kapur. The averment, the plaintiff intend to add
is the same thing said in a different manner and is not in any way
introducing any new case or changing the earlier case of the plaintiff.
The addition sought is not in any way inconsistent with the plaintiff's
case originally pleaded and rather is in consonance with what is stated
in para 8 of the plaint. Admittedly the issues are not framed as yet
hence there is no material delay in seeking the amendment. The
amendment rather is necessary for determining the real question in
controversy viz., if the property is capable of being partitioned or if
the plaintiff has a share in the property. Thus the amendment stands
allowed subject to cost of Rs.20,000/- to be paid to the counsel for the
defendants.
8. The application is disposed of.
CS(OS) 3489/2014
9. The amended plaint be filed by the plaintiff with an advance
copy thereof to the learned counsel for the defendants within four
weeks from today, subject to payment of the above cost to the
defendants. The defendants would then be at liberty to file the written
statement to amended plaint, if any, within four weeks thereafter with
an advance copy thereof to the learned counsel for plaintiff.
Replication thereto, if any, be also filed by the plaintiff within two
thereafter.
10. List for compliance and completion of pleadings before the
Joint Registrar (Judicial) on 12th February, 2018.
YOGESH KHANNA, J
NOVEMBER 20, 2017
VLD
