Delhi High Court
Vinet Dargar vs Krishna Mohan Dargar & Ors on 29 November, 2017
$~OS-6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 29.11.2017
+ CS(OS) 1531/2014, I.A. 10020/2014 & I.A. 12586/2015
VINET DARGAR ..... Plaintiff
Through Mr.Anup J Bhambhani, Sr. Advocate
with Mr.Setu Niket, Ms.Esha
Mazumdar and Mr.Nishant,
Advocates.
versus
KRISHNA MOHAN DARGAR & ORS ..... Defendants
Through Mr.Pankaj Agarwal and Ms.Ayushi
Agarwal, Advs. for D-2, 4 and 5.
Mr.Vikas Nagpal, Adv. for D1.
Mr.Bharat Sangal, Mr.R.R.Kumar,
Ms.Anindita Detta and Ms.Isha
Gupta, Advs.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
1. Pursuant to order of this court dated 17.04.2017, the learned senior
counsel for the plaintiff has clarified that an affidavit has been filed and
placed on record. He reiterates on instruction that the phrase „concern‟ as
used refers to M/s AMF Exports which was a family business and was the
sole proprietorship concern of defendant No.1. It is stated that this M/s AMF
Exports continues to operate. In addition, there is a company AMF Exports
Pvt. Ltd. which has been impleaded as defendant No.4.
2. The above clarification is taken on record.
CS(OS) 1531/2014 Page 1 of 5
I.A.12586/2015
1. This application is filed seeking amendment of the plaint under Order
6 Rule 17 CPC. The plaintiff has filed a suit seeking a decree against the
defendants declaring the plaintiff to be the owner of property No.H-20A,
Saket, New Delhi. He has also sought a decree declaring the plaintiff to be
owner of property being A-106 Sector-63, Noida. He has also sought a
decree of possession in respect of the property at Noida. Other connected
reliefs also sought.
2. It is the case of the plaintiff that in the written statement filed by
defendant No.1, a plea has been taken that the suit is infructuous regarding
property No.H-20A Saket, New Delhi, in view of the fact that the property
has been gifted by defendant No.1 to his daughter-in-law i.e. wife of
defendant No.2, hence, it is urged that the suit is liable to be dismissed.
3. It is further stated by the plaintiff that subsequent to filing of the suit,
the plaintiff was in possession of the property in Saket on the day of filing of
the suit. He has now been dispossessed on 29.07.2014. I may point out that
subsequent to filing of the written statement by defendant No.1, the plaintiff
had filed an application under Order I Rule 10 CPC being I.A.
No.12585/2015 which was allowed on 29.01.2016 whereby the defendant
No.5 who was beneficiary of gift deed dated 11.03.2014 regarding the
property at Saket was impleaded as a party.
4. Hence, the present application has been filed whereby in the prayer
clause relief is sought to be added seeking a decree of possession of the
property at Saket. Relief is also sought to be added seeking a decree of
declaration declaring the gift deed dated 11.03.2014 alleged to have been
executed by defendant No.1 in favour of defendant No.5 as void and illegal.
CS(OS) 1531/2014 Page 2 of 5
5. I have heard learned counsel for the parties.
6. The learned counsel for the defendants has strongly opposed the
present application saying that the nature of the suit is sought to be changed.
It is urged that a suit for declaration and possession is now sought to be
changed into a suit for partition. Reliance is placed on para 4A of the
proposed amendment where it is prayed that the suit has been filed by the
plaintiff claiming the relief for partition. It is also stated that the facts which
are to be brought on record were within the knowledge of the plaintiff.
7. Order 6 Rule 17 CPC reads as follows:
"17. Amendment of Pleadings.- the Court may at any stage at the
proceedings allow either party to alter or amend his 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:
Provided that no application for amendment shall be allowed 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."
8. I may note that one of the triggers for filing of the present amendment
application is an order of this court dated 29.01.2016 impleading defendant
No.5.
9. Under Order I Rule 10(4) CPC, when a party is impleaded, the
plaintiff may make consequential changes in the plaint.
10. It is the case of the plaintiff that the present case apart from making
consequential changes pursuant to impleadment of defendant No.5, certain
additional facts are sought to be brought on record which do not change the
nature of the suit. Two additional reliefs are also sought namely for
CS(OS) 1531/2014 Page 3 of 5
possession of the Saket property as the plaintiff has been dispossessed from
the said suit property after filing the present suit. Similarly, relief of
declaration is sought that the gift deed is void as knowledge of the execution
of this gift deed came to the plaintiff only when he was illegally
dispossessed from property at Saket and the written statement was filed.
11. As far as the plea of the defendants is concerned, namely that the
nature of relief is sought to be changed, the plea is entirely misplaced. In the
prayer clause which are sought to be added there is no relief sought to be
added for partition of the property as already noted above. There are only
two additional prayer clauses which are sought to be added, namely to
declare the gift deed dated 11.03.2014 executed in favour of defendant No.5
as void and illegal and seeking possession of the property at Saket as the
plaintiff claims this possession after filing of the suit. Merely, some
averments made in some portion of the proposed amendments, it does not
mean that the relief of partition has been sought. In the course of arguments,
the learned senior counsel for the plaintiff has clarified that in the prayer
clauses there is no averment seeking partition of the property. It cannot be
said that there is any attempt to change the nature of the suit. It is quite clear
that amendments which are now being sought are only as a consequence of
events/pleas which arose after filing of the suit. The events/pleas are relating
to possession of property at Saket and the gift deed executed in favour of
defendant No.5.
12. In Revajeetu Builders and Developers vs. Narayanaswamy and Sons
& Ors., (2009) 10 SCC 84, the Supreme Court noted as follows:-
"63. On critically analyzing both the English and Indian cases,
some basic principles emerge which ought to be taken into
CS(OS) 1531/2014 Page 4 of 5
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.
These are some of the important factors which may be
kept in mind while dealing with application filed under Order
VI Rule 17. These are only illustrative and not exhaustive."
13. The amendments which are sought are bonafide. They are necessary
for complete and proper adjudication of the disputes between the parties. I
accordingly allow the application. The amended plaint is taken on record.
14. Written statement to the amended plaint be filed within four weeks
from today.
15. List before the Joint Registrar for completion of proceedings on
05.02.2018.
JAYANT NATH, J.
NOVEMBER 29, 2017
rk
