Delhi High Court
Brij Mohan & Ors vs M/S Om Parkash Fateh Chand Ltd & ... on 31 October, 2017
$~OS-5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 31.10.2017
+ CS(OS) 2307/2014 & I.A. 14430/2014
BRIJ MOHAN & ORS ..... Plaintiffs
Through Mr.Kundan Kumar Lal, Adv.
versus
M/S OM PARKASH FATEH CHAND LTD & ORS....Defendants
Through Mr.Ravikesh K.Sinha, Advocate
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
IA. No.6502/2015
1. This application is filed under Order 6 Rule 17 CPC seeking
amendment of the plaint.
2. The plaintiffs have filed the present suit seeking a decree of
possession in respect of the certain portions of the property bearing
Municipal Nos.8711 to 8715, Ward No.XV, Desh Bandhu Gupta Road,
Paharganj, New Delhi- 110055. A decree is also sought for direction to the
defendants to hand over the chain of documents to the plaintiffs. Mesne
profits/damages are also sought.
3. The case of the plaintiffs is that they are the owners of the respective
shares of the suit property through eight sale deeds executed by the
defendants out of property bearing Municipal Nos.8707 to 8715, Ward
No.XV, Desh Bandhu Gupta Road, Paharganj, New Delhi- 110055. It is
stated that at the time of execution and registration of the sale deeds, it was
CS(OS) 2307/2014 & I.A. 14430/2014 Page 1
assured by the defendants that the previous original title deeds would be
handed over to the plaintiffs and simultaneously peaceful and vacant
physical possession of the suit property would also be handed over to the
plaintiffs. It is further averred that the defendants failed to fulfil the promises
and hence the present suit.
4. The defendants have filed their written statement denying the claim of
the plaintiffs. As per the defendants, it was a loan transaction and the sale
deeds were executed as a security only and that there was no intention to
convey any property to the plaintiffs.
5. By the present application, the plaintiffs seeks to add four more sale
deeds in addition to the eight sale deeds in the present suit and states that
being laymans while preparing the present suit, the said sale deeds have not
been mentioned in the plaint.
6. I have heard the learned counsel for the parties.
7. The learned counsel appearing for the defendants has strongly
opposed the present amendment stating that there is no case made out by the
plaintiffs for the reliefs which have been sought in the plaint. He reiterates
that the said sale deeds were executed as a security only. He further submits
that the sale deeds were executed in 2009 and now the amendment is sought
to be incorporated to them in the plaint. He also raised the issue of
limitation.
8. The fact of the matter is that the suit is filed for possession of the
certain shares of the suit property. Inadvertently it appears that a reference
was not made to the four sale deeds which are now sought to be added to the
plaint. The amendment does not change the nature of the suit.
9. Regarding the plea of the learned counsel for the defendants, the merit
CS(OS) 2307/2014 & I.A. 14430/2014 Page 2
of the facts sought to be added vide amendments is not relevant for
adjudication of the application under Order 6 Rule 17 CPC. Hence, the plea
that the facts which are sought to be incorporated would have no merit has
no relevance at this stage.
10. Regarding the plea of limitation, in my opinion, the suit is for
possession. Mere incorporation of reference to additional four sale deeds
does not introduce any new relief by the plaintiffs which can be said to be
barred by limitation.
11. The supreme court in Pankaja & anr. vs. Yellapa (D) by Lrs.
and Ors. (2004) 6 SCC 415 held that there is no absolute rule that in
every case where a relief is barred because of limitation an
amendment should not be allowed. There is discretion in such cases
and it depends upon facts and circumstances of the case. The supreme
court 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 sub serves 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 on
the factual background of that case."
12. In any case, the Supreme Court in the case of Revajeetu Builders and
Developers vs. Narayanaswamy and Sons and Ors. (2009) 10 SCC 84, held
CS(OS) 2307/2014 & I.A. 14430/2014 Page 3
as follows:-
"67. 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
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."
13. The present application is hence bona fide. The facts sought to be
added are necessary for the purpose of determining the real questions in
controversy between the parties.
14. The present application is allowed subject to payment of costs of
Rs.25,000/-. Amended plaint is taken on record. The defendants may file
written statement to the amended plaint without four weeks from today.
Replication to the said written statement may be filed within six weeks
thereafter.
CS(OS) 2307/2014 & I.A. 14430/2014
15. List before the Joint Registrar for carrying out admission and
CS(OS) 2307/2014 & I.A. 14430/2014 Page 4
denial of the documents on 05.02.2018.
JAYANT NATH, J.
OCTOBER 31, 2017/v
CS(OS) 2307/2014 & I.A. 14430/2014 Page 5
