Delhi High Court
H K Anand vs S Gurcharan Singh Bhasin & Ors on 1 July, 2019
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 28th May, 2019
Pronounced on: 01st July, 2019
+ CM (M) 1201/2018 & CM APPL.40951/2018
H K ANAND ..... Petitioner
Through: Mr. Siddharth Yadav, Advocate with
Mr. Wasim Ahsraf, Mr. Mohit
Daulatani, Advocates.
versus
S GURCHARAN SINGH BHASIN & ORS ..... Respondents
Through: Mr. H. S. Arora, Advocate for R-1.
%
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
JUDGMENT
1. This petition under Article 227 of the Constitution of India is
directed against an order dated 16.08.2018, whereby the Trial Court
has allowed an application filed by the plaintiff in a pending suit
(respondent no.1 herein) for amendment of the plaint and impleadment
of the petitioner herein as a defendant in the suit.
Facts
2. The suit (Civil Suit No. 11634/2016 in the Court of the learned
Additional District Judge, Central Delhi) was filed in October, 2004.
The plaintiff had impleaded ten defendants including M/s S.S. Mota
Singh (Nila) Charitable Trust (through S. Jaswant Singh Jas, General
Secretary) as defendant no. 1 (hereinafter referred to as "the Trust")
and S. Jaswant Singh Jas, Honorary General Secretary, M/s S.S. Mota
Singh (Nila) Charitable Trust as defendant no. 2 (hereinafter referred
to as "SJSJ"). The Trust is impleaded in this petition as respondent no.
2, and defendant nos. 3 to 10 in the suit are impleaded as respondent
nos. 3 to 10. The reliefs claimed in the original suit were in the nature
of declarations against the appointment of various defendants as
trustees or office bearers of the Trust (including SJSJ), an injunction
directing the holding of elections of office bearers of the Trust and
appointment of an administrator/receiver for management and control
over the movable and immovable properties of the Trust.
3. Respondent nos. 3 to 8 herein made an application for rejection
of the plaint under Order VII Rule 11 of the Code of Civil Procedure,
1908 (hereinafter referred to as "the CPC"), which was allowed by the
Trial Court vide order dated 19.03.2005. The Trial Court held that the
suit was barred by law for want of compliance with the provisions of
Section 92 of the CPC. Against this, the plaintiff filed an appeal (RFA
No. 494/2005) before this Court. During the pendency of the appeal,
SJSJ (the then General Secretary of the Trust) died, and the petitioner
herein was appointed in his place on 24.07.2009. The death of SJSJ
has been recorded in the order of this Court dated 21.04.2010. By a
further order dated 06.09.2010, the Court directed the plaintiff to take
steps to implead the succeeding office bearer of the Trust in the
appeal. Ultimately, by an order dated 18.12.2012, the plaintiff's appeal
was allowed and the suit was restored to the file of the Trial Court for
disposal. The order of this Court was challenged by the Trust, the
petitioner and two of the other defendants, before the Supreme Court
in SLP (Civil) No. 23955/2012. While issuing notice, by an order
dated 24.08.2012, the Supreme Court granted stay of further
proceedings. The Special Leave Petition was however ultimately
dismissed on 18.03.2016.
4. In July 2017, the plaintiff filed an application under Order I
Rule 10 of the CPC raising certain grievances against the appointment
of the petitioner herein, as General Secretary of the Trust and seeking
to implead her as defendant no. 2 in place of SJSJ. The application
was opposed by the petitioner, inter alia, on the ground of delay and
on the ground that she was neither a necessary nor a proper party to
the suit. By an order dated 13.12.2017, the Trial Court dismissed the
said application, recording that the substitution of the petitioner in
place of the deceased defendant was not permissible in the absence of
specific allegations in the plaint against her.
5. The plaintiff, thereafter, filed an application under Order VI
Rule 17 and Order I Rule 10 of the CPC seeking amendment of the
plaint to incorporate certain allegations against the petitioner in the
plaint, as well as her impleadment. This application was allowed by
the impugned order of the Trial Court dated 16.08.2018, leading to the
institution of this petition.
Submissions
6. Mr. Siddharth Yadav, learned counsel for the petitioner assailed
the impugned order on the ground that the application of the plaintiff
suffered from inordinate delay and laches. He submitted that the
appointment of the petitioner as General Secretary of the Trust was
made on 24.07.2009, whereas the application under consideration was
only filed several years thereafter, on 17.03.2018. According to him,
the plaintiff had knowledge of the appointment of the petitioner at
least from 06.09.2010. He also submitted that the relief sought to be
added in the plaint against the petitioner was barred by limitation.
Mr.Yadav referred to the judgment of the Supreme Court in Alkapuri
Cooperative Housing Society Limited vs. Jayantibhai Naginbhai
(Deceased) Through LRs (2009) 3 SCC 467 and of this Court in
Church of India, Pakistan, Burma & Ceylon vs. Church of North India
Trust Association (FAO (OS) 505/2009, decided on 23.12.2009).
Mr.Yadav submitted that the plaintiff has sought to set up a new case
which was not incorporated in the original suit and that the impugned
order has not been decided within the framework of Order I Rule 10 of
the CPC, inasmuch as the Trial Court has not arrived at a conclusion
as to whether the petitioner is a necessary or a proper party to the suit.
7. Mr. H.S. Arora, learned counsel for the respondent no.1/
plaintiff, on the other hand, submitted that the plaintiff's application
was not belated and disputed the petitioner's contention regarding
limitation in respect of the proposed relief. He pointed out that in the
Special Leave Petition filed before the Supreme Court, the petitioner
was arrayed as petitioner no. 2 and had specifically averred that she
had been substituted in place of the deceased defendant during the
pendency of the appeal before this Court. He further submitted that the
question of limitation can be reserved for a final decision upon trial
and stated that the petitioner has in fact filed a written statement dated
08.10.2018 in the suit, wherein she has taken the defence of limitation.
Issues are yet to be framed in the suit. Mr.Arora cited the judgments of
the Supreme Court in Ragu Thilak D. John vs. S. Rayappan and
Others (2001) 2 SCC 472, S.N.Kapoor (Dead) by LRs vs. Basant lal
Khatri and Others (2002) 1 SCC 329 and Pankaja and Another vs.
Yellappa (Dead) by LRs and Others (2004) 6 SCC 415 in support of
his submissions.
8. In rejoinder, Mr. Yadav contended that the filing of the Special
Leave Petition by the petitioner cannot per se lead to the conclusion
that she had been impleaded in the suit, absent any order of the Court
to that effect. He submitted that the petitioner's understanding, as
reflected in the SLP, that she had been impleaded by the order of this
Court dated 06.09.2010, was mistaken and cannot be determinative of
the question before this Court.
Analysis
9. As noted hereinabove, the challenge in the suit concerns the
appointment of various defendants as officer bearers and trustees of
the Trust. Allegations were also made against the deceased defendant
SJSJ in respect of his functioning as General Secretary of the Trust.
The amendments proposed, to some extent, are formal amendments
consequent upon the demise of SJSJ. As far as the petitioner is
concerned, the cause title is sought to be amended by substituting her
name in place of SJSJ in two places - as the General Secretary through
whom the Trust is being sued, and also independently as defendant
no. 2.
10. The relevant averments for this purpose, and for the purpose of
limitation, are contained in paragraphs 10 and 11 of the amended
plaint which are reproduced below:-
"10. That in the previous cause title of the suit, Late
S.Jaswant Singh Jas has been described as Hony.
General Secretary of the Society. This has been done
with a view to fulfill the requirements of the Societies
Registration Act, 1860 for the purposes of instituting the
present suit, while it is emphatically asserted that he was
a usurper of the office of Hony. General Secretary and is
liable to be removed from that position by a decree of
mandatory injunction. Since as S.Jaswant Singh Jas had
expired on 31.03.2010 and the defendants No.3 to 7
during the pendency of the suit appointed Mrs.H.K.
Anand as the General Secretary of the defendant No.1.
Hence, in the present cause title of the plaint,
Mrs.H.K.Anand has been described as the Hony. General
Secretary of the society. This has been done with a view
to fulfill the requirements of the Societies Registration
Act, 1860 for the purposes of the present suit while it is
emphatically asserted that her appointment is at the
Hony.General Secretary is totally illegal and she is liable
to be removed from that position by a decree of
mandatory injunction. The defendants No.9 and 10 have
been added being trustees though no relief has been
claimed against them as they are formal parties.
11. That the cause of action for instituting the present
suit has arisen in the months of July/August, 2004 when
the nefarious activities of late S.Prithipal Singh Bhasin,
Late S.Jaswant Singh Jas, Mrs. Kawaljeet Kaur Bhasin
and the newly illegally appointed five trustees came to
the knowledge of the plaintiff which were confirmed on
inspection and receipt of copies of the records of the
Registrar of Societies in September/October 2004. "The
cause of action for impleadment of Mrs.H.K.Anand, in
place of Late S. Jaswant Singh Jas when the defendants
No.3 to 7 in connivance with each other without
following the rules and regulations of the trust and
without holding any election of the trust appointed
Mrs.H.K. Anand as the General Secretary of the
defendant No.1. The cause of action further arose when
the Hon‟ble Delhi High Court allowed the impleadment
of Mrs.H.K.Anand in place of Late S.Jaswant Singh Jas
as respondent No.2 in R.F.A. No.249/2005. The cause of
action against Mrs. H.K.Anand-defendant No.2
regarding her illegal appointment as Hony. General
Secretary of the defendant No.1 further arose when the
Hon‟ble Supreme Court dismissed the SLP No.23955 of
2012 on 18.03.2016 and the stay order in the suit was
vacated and trial of the suit began. The cause of action
is still subsisting and continuing."
11. The claims made in the suit have also been amended to the
extent that a declaration has been sought against the petitioner's
appointment as General Secretary and an injunction against her
claiming to be the General Secretary of the Trust. The amended prayer
in this regard is as follows:-
"ii) pass a declaratory decree declaring that late S.
Jaswant Singh Jas was not duly appointed Hony. General
Secretary of S.S. Mota Singh (Nila) Charitable Trust and
its board of trustees and further declare the appointment
of Mrs. H.K. Anand, as the General Secretary of the trust
illegal and further pass a decree of injunction against
her, restraining her from claiming herself to be the
General Secretary of the Society and also of its board of
trustees and acting as such;"
12. In deciding whether or not to permit amendment of a plaint, the
Court is required to take into account all the facts and circumstances
of the case and also, to the extent possible, to avoid the prospect of
multiplicity of litigation. The Supreme Court has emphasized the
wide power conferred on the Court by Order VI Rule 17 of the CPC in
order to ensure that the real controversy between the parties is
resolved. Even an application made belatedly may be allowed, if
necessary, by compensating the other side with the award of costs.
Reference may be made to the judgments in B. K. Narayana Pillai vs.
Parameswaran Pillai and Another (2000) 1 SCC 712 [paragraphs 3 &
4] and Surender Kumar Sharma vs. Makhan Singh (2009) 10 SCC
626, [paragraphs 5 & 6]. In Revajeetu Builders and Developers vs.
Narayanaswamy and Sons and Others (2009) 10 SCC 84, after
analysis of the legislative history of the provision and the authorities,
the Court laid down the following factors to be taken into
consideration while dealing with applications for amendment:
"Factors to be taken into consideration while dealing
with applications for amendments
63. On critically analysing 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.
These 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.
64. The decision on an application made under Order
6 Rule 17 is a very serious judicial exercise and the said
exercise should never be undertaken in a casual manner.
We can conclude our discussion by observing that while
deciding applications for amendments the courts must not
refuse bona fide, legitimate, honest and necessary
amendments and should never permit mala fide,
worthless and/or dishonest amendments."
This judgment has been cited in Rameshkumar Agarwal vs. Rajmala
Exports Private Limited and Others (2012) 5 SCC 337 wherein the
Supreme Court has further elaborated upon the approach to be adopted
in the following terms:
"21. It is clear that while deciding the application for
amendment ordinarily the court must not refuse bona
fide, legitimate, honest and necessary amendments and
should never permit mala fide and dishonest
amendments. The purpose and object of Order 6 Rule 17
of the Code is to allow either party to alter or amend his
pleadings in such manner and on such terms as may be
just. Amendment cannot be claimed as a matter of right
and under all circumstances, but the courts while
deciding such prayers should not adopt a hypertechnical
approach. Liberal approach should be the general rule,
particularly in cases where the other side can be
compensated with costs. Normally, amendments are
allowed in the pleadings to avoid multiplicity of
litigations."
13. Considering the factors laid down in the aforesaid judgments,
I am of the view that the amendment sought in the present case was
justified. The grievance now sought to be agitated by the plaintiff
relates to the appointment of the petitioner as General Secretary of the
Trust, which occurred during the pendency of the suit. The suit is at a
relatively early stage and the petitioner has the opportunity to take all
defences available to her. The original suit pertains to the appointment
of office bearers and trustees and control over the management and
properties of the Trust. These are the very issues which are also
sought to be agitated qua the petitioner. If the amendment is
disallowed and the petitioner is compelled to institute independent
proceedings in respect of his alleged cause of action against the
petitioner, it would lead to a multiplicity of proceedings in which
common issues would arise and in fact there are likely to be several
common parties as well.
14. Mr. Yadav has also raised a grievance regarding the
incorporation of a new cause of action against the petitioner, which
according to him was barred by limitation. In this connection, it is
important to note that at the time SJSJ died, the application of the
defendants under Order VII Rule 11 of the CPC had been allowed, and
consequently, there was no suit pending in which the plaintiff could
have applied for substitution of parties or amendment of the plaint.
The pending proceeding at that stage was the appeal before this Court.
Although the petitioner had not in fact been impleaded in the appeal
by the order of this Court dated 06.09.2010, it is she (and the other
petitioners in the Special Leave Petition) who asserted to the contrary
before the Supreme Court. There was, therefore, no occasion for the
plaintiff to take any steps in this regard at that stage either. Further, as
pointed out by Mr.Arora, the Supreme Court by its order 24.08.2012
directed stay of further proceedings, which continued until 18.03.2016
when the Special Leave Petition was dismissed. Consequently, the
plaintiff could not have proceeded during this period either. Further,
therefore, not possible to conclude finally at this stage that the relief
sought to be incorporated in the suit is, in fact, barred by limitation.
15. The judgments cited by Mr. Arora make it clear that the
question of limitation in respect of a newly incorporated claim can be
left open for decision in the suit, even while allowing the application
for amendment. In Ragu Thilak D. John (supra), it was emphasized
that a liberal approach should be employed in deciding applications
for amendments particularly to avoid multiplicity of litigation. The
Court in that case allowed the amendment and also directed that the
plea of limitation, being disputed, could be made a subject matter of
the issue after amendment. In Pankaja (supra), the Court has followed
its earlier judgments - including Ragu Thilak D. John (supra) - and
held that the Court is vested with a discretion to allow an amendment
application, even if, the application is made with some delay. With
regard to the incorporation of reliefs which are alleged to be barred by
limitation, the Court held in Pankaja (supra) as follows:-
"13. But the question for our consideration is whether in
cases where the delay has extinguished the right of the
party by virtue of expiry of the period of limitation
prescribed in law, can the court in the exercise of its
discretion take away the right accrued to another party
by allowing such belated amendments.
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
on 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 straitjacket formula for allowing or
disallowing an amendment of pleadings. Each case
depends on the factual background of that case.
15. This Court in the case of L.J. Leach and Co.
Ltd. v. Jardine Skinner and Co.[AIR 1957 SC 357] has
held: (AIR p. 362, para 16)
"16. It is no doubt true that courts would, as a
rule, decline to allow amendments, if a fresh
suit on the amended claim would be barred by
limitation on the date of the application. But
that is a factor to be taken into account in
exercise of the discretion as to whether
amendment should be ordered, and does not
affect the power of the court to order it, if that
is required in the interests of justice."
16. This view of this Court has, since, been followed by a
three-Judge Bench of this Court in the case of T.N. Alloy
Foundry Co. Ltd. v. T.N. Electricity Board [(2004) 3
SCC 392] . Therefore, an application for amendment of
the pleading should not be disallowed merely because it
is opposed on the ground that the same is barred by
limitation, on the contrary, application will have to be
considered bearing in mind the discretion that is vested
with the court in allowing or disallowing such
amendment in the interest of justice."
In this case too, the Supreme Court allowed the amendment leaving
the question of limitation to be decided in the suit.
16. The decision of the Supreme Court in Alkapuri Housing
Corporative Society (supra) cited by Mr. Yadav reiterates the ruling in
Pankaja (supra) to the extent that a judicial evaluation of the facts and
circumstances of the case is required whenever a belated application
for amendment is made. However, the Court cautioned that in every
case where an amendment application also requires impleadment of a
third party, the Court's evaluation must also take into account the
principles governing Order I Rule 10 of the CPC. In that case, an
application for amendment filed 18 years after the filing of the suit
was rejected by the Trial Court but allowed by the Gujarat High Court.
The Supreme Court held that the plaintiff therein had sought to alter
the nature and the character of the suit by the amendment and the
impleadment sought, and thereafter rejected the plea.
17. In Alkapuri (supra), the Supreme Court also referred to its
earlier judgment in Sampath Kumar vs. Ayyakannu & Another (2002)
7 SCC 559 wherein this issue has been discussed in some detail. The
relevant observations of the Court in this regard are as follows:-
"7. In our opinion, the basic structure of the suit is not
altered by the proposed amendment. What is sought to be
changed is the nature of relief sought for by the plaintiff.
In the opinion of the trial court, it was open to the
plaintiff to file a fresh suit and that is one of the reasons
which has prevailed with the trial court and with the
High Court in refusing the prayer for amendment and
also in dismissing the plaintiff's revision. We fail to
understand, if it is permissible for the plaintiff to file an
independent suit, why the same relief which could be
prayed for in a new suit cannot be permitted to be
incorporated in the pending suit. In the facts and
circumstances of the present case, allowing the
amendment would curtail multiplicity of legal
proceedings.
xxxx xxxx xxxx
9. Order 6 Rule 17 CPC confers jurisdiction on the court
to allow either party to alter or amend his pleadings at
any stage of the proceedings and on such terms as may
be just. Such amendments as are directed towards putting
forth and seeking determination of the real questions in
controversy between the parties shall be permitted to be
made. The question of delay in moving an application for
amendment should be decided not by calculating the
period from the date of institution of the suit alone but by
reference to the stage to which the hearing in the suit has
proceeded. Pre-trial amendments are allowed more
liberally than those which are sought to be made after
the commencement of the trial or after conclusion
thereof. In the former case generally it can be assumed
that the defendant is not prejudiced because he will have
full opportunity of meeting the case of the plaintiff as
amended. In the latter cases the question of prejudice to
the opposite party may arise and that shall have to be
answered by reference to the facts and circumstances of
each individual case. No straitjacket formula can be laid
down. The fact remains that a mere delay cannot be a
ground for refusing a prayer for amendment.
10. An amendment once incorporated relates back to the
date of the suit. However, the doctrine of relation-back in
the context of amendment of pleadings is not one of
universal application and in appropriate cases the court
is competent while permitting an amendment to direct
that the amendment permitted by it shall not relate back
to the date of the suit and to the extent permitted by it
shall be deemed to have been brought before the court on
the date on which the application seeking the amendment
was filed. (See observations
in Siddalingamma v. Mamtha Shenoy[(2001) 8 SCC
561].)
11. In the present case the amendment is being sought for
almost 11 years after the date of the institution of the
suit. The plaintiff is not debarred from instituting a new
suit seeking relief of declaration of title and recovery of
possession on the same basic facts as are pleaded in the
plaint seeking relief of issuance of permanent prohibitory
injunction and which is pending. In order to avoid
multiplicity of suits it would be a sound exercise of
discretion to permit the relief of declaration of title and
recovery of possession being sought for in the pending
suit. The plaintiff has alleged the cause of action for the
reliefs now sought to be added as having arisen to him
during the pendency of the suit. The merits of the
averments sought to be incorporated by way of
amendment are not to be judged at the stage of allowing
prayer for amendment. However, the defendant is right in
submitting that if he has already perfected his title by
way of adverse possession then the right so accrued
should not be allowed to be defeated by permitting an
amendment and seeking a new relief which would relate
back to the date of the suit and thereby depriving the
defendant of the advantage accrued to him by lapse of
time, by excluding a period of about 11 years in
calculating the period of prescriptive title claimed to
have been earned by the defendant. The interest of the
defendant can be protected by directing that so far as the
reliefs of declaration of title and recovery of possession,
now sought for, are concerned the prayer in that regard
shall be deemed to have been made on the date on which
the application for amendment has been filed.
12. On the averments made in the application, the same
ought to have been allowed. If the facts alleged by the
plaintiff are not correct it is open for the defendant to
take such plea in the written statement and if the plaintiff
fails in substantiating the factual averments and/or the
defendant succeeds in substantiating the plea which he
would obviously be permitted to raise in his pleading by
way of consequential amendment then the suit shall be
liable to be dismissed. The defendant is not prejudiced,
more so when the amendment was sought for before the
commencement of the trial."
18. I am of the view that the approach outlined by the Court in
Sampat Kumar (supra) can appropriately be followed in the present
case. As stated above, there is no amendment to the basic structure of
the suit which was still at a pre-trial stage when the amendments were
made. The question of limitation in respect of the cause of action
against the petitioner can be left open for a final decision by the Trial
Court.
19. Having held that the amendment is liable to be allowed in the
circumstances aforesaid, it is consequently necessary also to permit
the impleadment of the petitioner. As noted above, by virtue of the
amendment, specific reliefs have been sought against the petitioner
and she is, therefore, a necessary party to the suit.
20. In Church of India (supra), on which Mr.Yadav placed reliance,
the Division Bench of this Court dismissed an application by a third
party seeking impleadment as a defendant in a pending suit. The
Division Bench affirmed the order of the learned Single Judge in this
regard, on the ground that the third party was the plaintiff in a
connected suit which had been consolidated with the suit in question
and was, therefore, not required to be impleaded. It is in this context
that the Division Bench also held that the delay of 10 years in the
moving the impleadment application had not been explained. The
circumstances in the present case are clearly dissimilar.
Conclusion
21. In the facts and circumstances above, the petitioner has failed to
make out any ground for interference with the impugned order. The
petition is dismissed but without any orders as to costs. It is made
clear that the question of limitation in respect of the claims made by
the plaintiff against the petitioner herein, may be agitated by the
petitioner in the suit, and will be decided by the Trial Court
independently, in accordance with law. The pending applications also
stand disposed of.
PRATEEK JALAN, J.
JULY 01, 2019
„pv‟/s
