Delhi High Court
Suresh Malhotra vs R K Malhotra & Ors. on 1 November, 2018
$~OS-9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 01.11.2018
+ CS(OS) 88/2017
SURESH MALHOTRA ..... Plaintiff
Through Mr. Mohit D. Ram and Ms.Monisha
Handa, Advs.
versus
R K MALHOTRA & ORS. ..... Defendants
Through Ms.Babita Seth, Adv. for D-1 & 2.
Mr.Prashant Kr. Mittal, Mr.Dushyant
Swaroo and Ms. Asha Garg, Advs. for
D-4.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
IA No.3448/2018
1. This application is filed under Order 6 Rule 17 CPC seeking
amendment of the plaint.
2. The present suit is filed seeking a decree of declaration in favour of
the plaintiff and against the defendant declaring the plaintiff to be the owner
of 1/4th share in the suit properties of Rajinder Nagar and Vasant Kunj. A
decree of partition is also sought.
3. The case of the plaintiff is that the father-late Sh.N.L.Malhotra had
purchased these two properties in Vasant Kunj and Old Rajinder Nagar. The
father passed away intestate on 11.02.2008. the plaintiff and defendant No.1
are the sons of late Sh.N.L.Malhotra, defendant No.3 was the wife of late
CS(OS) 88/2017 Page 1 of 4
Sh.N.L.Malhotra and defendant No.4 is the daughter of late
Sh.N.L.Malhotra.
4. The defendants have in the written statement stated that late
Sh.N.L.Malhotra left behind a Will dated 12.06.1997 whereby he had
bequeathed the property in Rajinder Nagar to his wife, i.e. defendant No.3.
Subsequently, defendant No.3 had gifted the said property vide Gift Deed
dated 09.06.2016 to defendant No.2 who is the wife of defendant No.1.
Regarding the Vasant Kunj Property, it has been pleaded that the said
property was willed by late Sh.N.L.Malhotra vide Will dated 12.06.1997. It
is further pleaded that during the lift time of Sh.N.L.Malhotra only the
Conveyance Deed from DDA was executed for the said properties in favour
of defendant No.2 on 27.03.1998.
5. By the present application, in view of the said averments made by the
defendants, the plaintiff seeks to amend the plaint whereby he seeks to
challenge the legality and validity of the Will dated 12.06.1997 of late
Sh.N.L.Malhotra, Gift Deed dated 09.06.2016 and Conveyance Deed dated
27.03.1998. Other consequential reliefs are sought to be added.
6. Learned counsel appearing for the defendants have opposed the
present application. They point out that the plaintiff had knowledge of the
Will dated 12.06.1997 at the time of the filing of the plaint as there is a
reference of the same in the plaint. It is also submitted that the Conveyance
Deed regarding the Vasant Kunj Property was executed way back in 1998
and now, the plaintiff has woken up belatedly to try and challenge the same.
7. Learned counsel for the plaintiff has stated that the plaintiff was not
aware about either the Will or the Gift Deed or the Conveyance Deed and
has got knowledge of these documents and details thereof only after filing of
CS(OS) 88/2017 Page 2 of 4
the suit and hence, the need for amendment.
8. It is settled law that the merits of the contentions which are sought to
be raised in an application for amendment are not to be gone into at the time
of adjudication of an application for amendment of the pleadings. The rule
of amendment is essentially a rule of justice, equity and good conscience.
The court while considering the application for amendment should not go
into the authenticity or falsity of the case in the amendment.
9. Reference in this context may be had to the judgement of the
Supreme Court in Rajesh Kumar Aggarwal and Ors. vs. K.K. Modi and
Ors. AIR 2006 SC 1647.
"13. While considering whether an application for amendment
should or should not be allowed, the Court should not go into the
correctness or falsity of the case in the amendment. Likewise, it
should not record a finding on the merits of the amendment and
the merits of the amendment sought to be incorporated by way of
amendment are not to be adjudged at the stage of allowing the
prayer for amendment. This cardinal principle has not been
followed by the High Court in the instant case."
10. Reference may also be had to the judgment of the Supreme Court in
the case of Revajeetu Builders and Developers vs. Narayanaswamy and
Sons & 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
and effective adjudication of the case?
(2) Whether the application for amendment is bona fide or
mala fide?
CS(OS) 88/2017 Page 3 of 4
(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."
11. Hence, the proposed amendments which are now sought in the said
application are bona fide.
12. Accordingly, the application is allowed subject to payment of cost of
Rs.20,000/-. The amended plaint is taken on record. The defendants may file
written statement to the amendment plaint within four weeks from today.
JAYANT NATH, J.
NOVEMBER 01, 2018/n
