Dr. Sarjit Singh Awla vs Mr. Kuldeep Singh Awla
2017 Latest Caselaw 5801 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                             Date of Decision: 24.10.2017
+     CS(OS) 574/2014
      Dr. SARJIT SINGH AWLA                                 ..... Plaintiff
                    Through   Mr.Arjun Singh Bhati, Mr. Kshitij
                    Kumar and Mr.Abhishek Bansal, Advs.
                    versus
      Mr. KULDEEP SINGH AWLA              ..... Defendant
                    Through   Mr. Ashim Vachher and Mr.Sumit,
                    Advs.
      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

IA 8288/2016

1. This application is filed under Order VI Rule 17 CPC for amendment of the plaint. The plaintiff has instituted a suit for declaration, possession, permanent injunction and damages against the defendant in respect of the suit property being D-44, South Extension, Part-II, New Delhi.

2. Some of the admitted facts are that the property was owned by the mother who executed a will on 07.05.1993. The mother expired on 05.11.1993. By virtue of the Will of the mother, the plaintiff states that he is legatee of the first floor and also has exclusive rights in respect of Barsati and a garage. Further, as per the plaintiff , defendant No. 1 is the legatee of the ground floor and a garage and was entitled to rents from two annexe buildings.

3. The plaintiff resides in Germany. He executed a Special Power of

Attorney in favour of defendant No.2, namely, the wife of defendant No.1 on 17.09.2007. Defendant No.2 acting as attorney holder of the plaintiff executed a relinquishment deed on 21.01.2008 whereby the share of the plaintiff in the said property has been released in favour of the first defendant. The present suit was filed in 2014. The defendant filed an application under Order VII Rule 11 CPC seeking dismissal of the suit. The learned Single Judge allowed the application of the defendant vide order dated 13.01.2015 and dismissed the suit. The court held that the suit was time barred.

4. In appeal the Division Bench of this court in RFA (OS) No. 35/2015 by its order dated 10.03.2016 noted that during the course of the proceedings of the suit, the plaintiff had filed an affidavit whereby he had stated that in the first week of October 2012, he met defendant No.1 for letting the first floor portion when he was informed by defendant No.1 that he is the owner of the entire property pursuant to the relinquishment deed dated 21.01.2008. The Division Bench was of the view that the Single Judge did not take it into account the said affidavit filed by the plaintiff which gives the date of knowledge of execution of the Relinquishment Deed. The appeal was allowed and the suit was restored.

5. Now, the plaintiff has filed the present application seeking amendments in the plaint. The basic amendments which are being sought are the addition of facts reproducing the contents of the affidavit which had been filed earlier whereby it was claimed that it was in the first week of October 2012 that the plaintiff met defendant No.1 and thereafter learnt about the execution of the relinquishment deed dated 21.01.2008. Consequential amendments are sought based on this averment. Further, an

amendment is sought in the prayer clause whereby the plaintiff seeks to add a prayer seeking a decree of cancellation of the relinquishment deed dated 21.01.2008 and also a declaration that the relinquishment deed is null and void.

6. I have heard learned counsel for the parties.

7. Learned counsel for the defendant has strongly opposed the present amendment application. He submits that in the original plaint no decree of cancellation of the relinquishment deed dated 21.01.2008 has been sought and consequently, the relief which is now being sought has become barred by limitation. He relies upon the judgment of the Supreme Court in the case of L.C.Hanumanthappa vs. H.B. Shivakumar, (2016) 1 SCC 332 and Razia Begum vs. Delhi Development Authority & Ors.,215 (2014) DLT 290 (DB) to contend that when a relief for declaration has become barred by limitation, amendment cannot be allowed.

8. 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."

9. There are two aspects of the amendment which are being sought by the plaintiff. The first portion pertains to addition of certain facts whereby the plaintiff seeks to plead that he got knowledge of execution of the

relinquishment deed only sometimes in the first week of October 2012. These facts had already been placed on record by the plaintiff by means of an additional affidavit which was filed on 15.03.2014. It was based on this additional affidavit that the Division Bench in its order dated 10.03.2016 had set aside the order of the learned Single Judge dismissing the suit as being barred under Order 7 Rule 11 CPC. Accordingly, the facts which are sought to be brought on record by amendment of the plaint are facts which have already been taken into account by the Division bench while granting relief to the plaintiff in the appeal on 10.03.2016. The facts which are stated above in the additional affidavit already filed are necessary for the purpose of determining the real questions in controversy between the parties.

10. As far as the amendment of the prayer clause is concerned, I may note that in the original plaint filed by the plaintiff, the plaintiff has sought the following prayers:

"a) pass a decree of declaration in favour of the plaintiffs and against, the defendant no. 1, thereby declaring that the plaintiff by virtue of relinquishment deed dated 21.01.2008, absolutely had never relinquished his right, title and interest in favour of defendant no. 1 with respect to the plaintiffs specifically divided portions i.e. the first floor and one garage in the Annexe portion i.e. the "suit property", and as such he is the absolute and exclusive owner of the above portions, and is entitled to its physical possession, damages against the defendants for unauthorized use and occupation of the said portions / suit property by them and / or by their tenants, and for getting the defendants injuncted from creating any third party interest, alienating, disposing it of etc.

b). pass a decree of possession in favour of the plaintiffs and against the defendants jointly and severely thereby directing them to handover the peaceful vacant and physical possession of the

entire first floor measuring about 334.29 sq.mtrs., and one garage measuring about 23.25 sq. mtrs. situated at the left 'hand side garage facing the main entrance, situated at the ground floor in the Annexe portion situated at the annexe portion i.e. the suit property, part and parcel of property bearing no. D-44, situated at South Extension Part-II, NewDelhi to the plaintiff."

11. Hence what has been sought is a declaration that by virtue of the relinquishment deed dated 21.01.2008, no title or interest has passed in favour of defendant No.1 in respect of the first floor and one garage in the annexe portion. Now by the amendment, the plaintiff seeks to delete prayer

(a) and add the following prayer:-

"(a) pass a decree of declaration in favour of the Plaintiff and against the Defendants thereby declaring the relinquishment deed dated 21.01.2008 registered vide registration no. 898, Book No. I, Volume No. 8015, at pages 137 to 140 as null and void and thereby further declare the Plaintiff had never by way of the relinquishment deed, let go of his right, title or interest in favour of Defendant No.l with respect to the specifically divided portion of the Plaintiff i.e., the entire first floor and one garage in the annexe portion on the ground floor, and as such he is the true and absolute owner thereof, and that he is entitled to its vacant and peaceful possession along with damages."

12. It is manifest from the above that some of the basic facts regarding the plea of the plaintiff that the relinquishment deed dated 21.01.2008 does not take away the right, title and interest of the plaintiff are on record. There is a claim to the title in the first floor and the garage in the annexe of the property in the plaint though the prayer clause is drafted in a confused manner. However, in my opinion, the original prayer that was sought in the plaint was essentially a lacuna in drafting which is sought to be corrected by filing the present application. The basic facts are not sought to be changed.

13. The legal position is quite settled. Insufficient pleadings or shortcomings in the pleadings can generally be rectified. In Ganesh Trading Co. Vs. Moji Ram, AIR 1978 SC 484 the Supreme Court held as follows:-

"4. It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.

14. Regarding the plea of the defendant that the present relief that is sought to be added by way of amendment is barred by limitation, the said plea is without any merit. A challenge to the relinquishment deed was made in the original plaint. Even otherwise this issue may not be relevant. The Supreme Court in the case of Pankaja & Anr. vs. Yellappa (D) by LRs. & Ors., AIR 2004 SC 4102 held as follows:

"14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of

pleadings. Each case depends oh the factual background of that case."

15. Hence, there is no absolute rule that in every case where a relief is barred because of limitation, an amendment should not be allowed. It would depend on the factual background of that case. In the present facts, keeping into account the fact that some of the relevant facts pertaining to title of the plaintiff not being affected on account of the relinquishment deed dated 21.01.2008 being already pleaded in the original plaint, in my opinion, there are sufficient grounds to allow the amendment even if the plea is time barred.

16. The Supreme Court in the case of L.C.Hanumanthappa vs. H.B. Shivakumar (supra) was dealing with a case where the plaintiff had filed the suit seeking permanent injunction to restrain the defendants from disturbing peaceful possession of the suit Property. The defendants in the written statement denied the title of the plaintiff. A separate suit was also filed by the defendant. In those facts the Supreme Court held as follows:-

"13. We have heard learned Counsel for the parties. It is not disputed that Article 58 of the Limitation Act would apply to the amended plaint inasmuch as it sought to add the relief of declaration of title to the already existing relief for grant of permanent injunction. In Khatri Hotels Private Limited and Anr. v. Union of India and Anr. (2011) 9 SCC 126, this Court while construing Article 58 of the Limitation Act held as follows:

"25.Article 58 of the Schedule to the 1963 Act, which has a bearing on the decision of this appeal, reads as under:

xxx

26. Article 120 of the Schedule to the Limitation Act, 1908 (for short "the 1908 Act") which was interpreted in the judgment relied upon by Shri Rohatgi reads as under:

xxx

29. In Rukhmabai v. Lala Laxminarayan, the three-Judge Bench noticed the earlier judgments and summed up the legal position in the following words: AIR p. 349, para 33)

33. ...The right to sue Under Article 120 of the [1908 Act] accrues when the Defendant has clearly or unequivocally threatened to infringe the right asserted by the Plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right.

30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word "first" has been used between the words "sue" and "accrued". This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to

sue first accrued.

14. Given this statement of the law, it is clear that the present amendment of the plaint is indeed time-barred in that the right to sue for declaration of title first arose on 16th May, 1990 when in the very first written statement the Defendant had pleaded, in para 13 in particular, that the suit for injunction simpliciter is not maintainable in that the Plaintiff had failed to establish title with possession over the suit property. The only question that remains to be answered is in relation to the doctrine of relation back insofar as it applies to amendments made under Order VI Rule 17 of the Code of Civil Procedure."

17. Hence, it was in those facts where despite the fact that there was denial of title by the defendant the plaintiff took no steps seeking a declaration of title, the supreme Court held that the amendment application is time barred.

18. The amendments which are now sought are necessary and proper for complete adjudication of the real question in controversy between the parties. I accordingly, allow the application.

19. The amended plaint be filed within 10 days. The defendant may file written statement to the amended plaint within four weeks thereafter. The plaintiff may thereafter file his rejoinder before the next date of hearing. CS(OS) 574/2014 List before the Joint Registrar for completion of pleadings and for admission and denial of documents on 19.01.2018.

JAYANT NATH, J OCTOBER 24, 2017/rb