Sangeeta vs Alok Kumar Gupta & Ors
2017 Latest Caselaw 5839 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                            Date of Decision: 25.10.2017

+     CS(OS) 3048/2014
      SANGEETA                                      ..... Plaintiff
                   Through    Mr. Rama Shanker and Mr.Saurabh,
                   Advs.
                   versus
      ALOK KUMAR GUPTA & ORS               ..... Defendants
                   Through    Mr. Amiet Andlay and Mr. Arvaik
                   Sharma, Advs. for D-1 to 3.
                   Ms.Vijay Laxmi, Proxy Counsel for D-13 to 15&
                   17 to 31.
      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

IA No. 8477/2015

1. This application is filed under Order VI Rule 17 read with Order I Rule 10 CPC seeking amendment of the plaint and for impleading defendants No. 13 to 31.

2. Some of the brief facts are that the plaintiff has filed the present suit for partition, declaration and permanent injunction in respect of property No. 1833, Ravidas basti, Kotla Mubarak Pur, New Delhi measuring 280 sq. yards. Unfortunately, due to the infighting amongst the family members, a complex set of facts have emerged. It is urged that the grandfather, namely, Sh.Khachheru was the absolute owner of the said property. He had three sons. He died in the year 1978. The plaintiff and defendants No. 4 to 12 are

CS(OS) 3048/2014 Page 1 said to be his legal heirs. The plaintiff claims 1/15 th share in the said property. Subsequently, it transpired that defendants No.6 to 12 on the basis of an alleged GPA dated 16.06.1978 of their grandfather, after the grandfather had died, have executed a sale deed on 16.01.2012 in favour of defendants No.1 to 3. They have also entered into a collaboration agreement with defendants No.1 to 3 whereby defendants No. 1 to 3 have paid a sum of Rs.65 lakhs. It is the case of defendants No. 1 to 3 that pursuant to the collaboration agreement, they re-built the entire property creating about 30 one-room tenements of which 16 had fallen to the share of defendants No. 1 to 3. Defts No. 1 to 3 claim to have sold 16 tenements to different persons who are now proposed to be added by the plaintiff as Defts. No. 13 to 31.

3. Sometimes in 2012, defendants No. 4 and 5 filed a suit for partition, declaration, permanent and mandatory injunction against defendants No. 1 to 3, defendants No. 6 to 13 and the plaintiff. It is the case of the plaintiff that he contested the suit and filed a written statement through his counsel. He further seeks to blame his advocate claiming that the advocate did not follow up the matter properly. He claims that in the second week of August, 2014 he came to know from the other defendants that the said suit has been withdrawn by defendants No. 4 on the basis of a compromise entered into between defendants No. 4 and defendants no. 1 to 3. It is claimed that the sale deed dated 16.01.2012 executed by defendants No. 6 to 12 in favour of defendants No. 1 to 3 is illegal and that defendants No. 1 to 3 have got no legal or valid title to the said property. He also claims that plaintiff never entered into any compromise with defendants No. 1 to 3 or defendants No. 4 to 12. Hence, the present suit has been filed.

4. Defendants No. 1 to 3 have filed their written statement. In the written

CS(OS) 3048/2014 Page 2 statement they have reiterated about the collaboration agreement and sale deed which has been executed in their favour. It has also been stated that 16 tenements that came to the share of defendants No. 1 to 3 have been sold to defendants No. 13 to 31 by various registered sale deeds copies of which have been placed on record.

5. As defendants No. 4 to 12 are not appearing, they have been proceeded ex parte on 12.03.2015. It is in the above factual scenario that the plaintiff has now moved the present application seeking amendment of the plaint. By way of amendment the plaintiff seeks to add the relief claiming a decree of declaration against defendants No. 13 to 31 challenging the respective sale deeds executed by defendants No. 1 to 3 in favour of the said defendants No. 13 to 31. Other consequential reliefs are also sought.

6. Learned counsel for defendants No. 1 to 3 submits that they are not concerned with this application for amendment inasmuch as they have already sold their rights to defendants No. 13 to 31.

7. Defendants No. 13 to 31 have also filed their reply. At this stage, after arguments were heard and the order is being dictated, learned counsel for defendants No. 13 to 15 & 17 to 31 submits that she is only a proxy counsel and cannot make submissions on their behalf. However, a perusal of the reply filed by the said defendants No. 13 to 15 and 17 to 31 shows that the said defendants claim to be the bona fide purchasers of the respective properties. They also claim that the title of the suit property was decided in CS(OS) 1772/2012 and hence, the present suit is barred under Section 11 CPC.

8. The issues raised by defendants No. 13 to 15 and 17 to 31 essentially deal with the merits of the suit. At the time of adjudication of an application

CS(OS) 3048/2014 Page 3 for amendment, merits of the suit are not to be taken into account.

9. Amendment of pleadings is governed by Order VI Rule 17 CPC. The same 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."

10. Reference may be had to the judgement of the Supreme Court in the case of Abdul Rehman & Arn. Vs. Mohd. Ruldu & Ors., (2012) 11 SCC

341. The Supreme Court held as follows:-

"18. We reiterate that all amendments which are necessary for the purpose of determining the real questions in controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties."

11. Reference may also be had to the judgement of the Supreme Court in the case of Revajeetu Builders and Developers vs. Narayanaswamy and Sons and Ors., (2009) 10 SCC 84. The Supreme Court 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

CS(OS) 3048/2014 Page 4 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 adequate 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.

There are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule

17. These are only illustrative and not exhaustive."

12. Keeping in view the above legal position and the facts that the amendments which are now sought are a consequence of the additional facts brought on record pursuant to the written statement of defendants No. 1 to 3, it is in the interest of justice that the amendments be allowed. The amendments are necessary for the purpose of determining the real question in controversy between the parties. The application is bona fide. Refusing amendment will lead to multiple litigation.

13. The application is accordingly allowed.

IA No. 19529/2014 This application is filed under order 39 Rule 1 & 2 CPC seeking ex parte injunction to restrain the defendants from selling, alienating or mortgaging, etc. the suit property.

From the narration of facts as stated above, it is manifest that the

CS(OS) 3048/2014 Page 5 properties have already been transferred at various stages. It is manifest that the plaintiff has made out a prima facie case. Balance of convenience is also in favour of the plaintiff. If interim orders are not passed, it will create untold hardships to the plaintiff. It is a matter of fact that the plaintiff has at no stage consented to the agreement executed with the builder defendants No. 1 to 3 or executed any sale deed in favour of defendants No. 1 to 3.

Accordingly, all the defendants are directed to maintain status quo regarding the title to the properties.

The application stands disposed of.

IA No. 19530/2014 In view of the facts that defendants No. 1 to 3 have already filed the necessary documents, this application has become infructuous and the same is disposed of accordingly.

CS(OS) 3048/2014 Amended plaint is taken on record. Defendants No. 1 to 3 and defendants No. 13 to 15 and 17 to 31 may file their written statement to the amendment plaint within four weeks from today. Rejoinder, if any, be filed within four weeks thereafter.

List before the Joint Registrar for further proceedings on 15.11.2017.

OCTOBER 25, 2017/rb                                    JAYANT NATH, J




CS(OS) 3048/2014                                                            Page 6