Akshay Kumar Angrish v. Vinod Kumar Angrish

1. Parties to the Civil Suit No.214/20,11 (except NDPL - defendant No.4)are litigating over property No.KP-368,Maurya Enclave,Pitampura, Delhi-110034 constructed on a plot measuring 84sq.yds,which was allotted to late Sh.YogendraPal Angrish by the Delhi Development Authority. The Civil Suit no.214/2011 was filed by Sh.Vinod Kumar Angrish against his father Sh.Yogendra Pal Angrish — defendant No.l, his younger brother Sh.Akshay Kumar Angrish-defendant No.2,his elder sister Smt.Promiladefendant No.3 and also impleading NDPL as defendant No.4 claiming the reliefofpermanentinjunction as well aspartition.

2. It may be noted at the outset that during pendency of the suit, the plaintiff Sh.Vinod Kumar Angrish has expired on 06.07.2014. His legal heirs have been impleaded as respondents in this petition. Sh.Yogendra Pal Angrish(defendant No.l in the Civil Suit)- father oflate Sh.Vinod Kumar CM(M)No304/2015 o, Page 1 of? 2015:DHC:10824 Angrish (plaintiff in the Civil Suit) and Sh.Akshay Kumar Angrish petitioner herein(defendantN[6]:2inthe Civil Suit)has also expired.

3. The petitioner is aggrieved by the order dated IS"' May, 2014 whereby the application under Order 6 Rule 17 CPC filed by the plaintiff Sh.Vinod Kumar Angrish (now deceased) in Civil Suit No.214/2011 has been allowed by the learned Trial Court.

4. The facts of the case in brief are that the suit for partition and permanentinjunction was filed by Shri Vinod Kumar Angrish pleading that property No.KP-368, Maurya Enclave, Pitampura, Delhi-110034 was purchased in the year 1978 in the name of defendant No.l Shri Yogender Pal Angrish,father ofthe plaintiff. The plaintiff also paid 50% ofthe sale consideration atthe time ofpurchase ofthe said property. The property was purchased in the name of the father of the plaintiff as at that time the plaintiffShri Vinod KumarAngrish wasin Nigeria and his wife wasserving in Lucknow as teacher. At the stage of construction also the plaintiff contributed about75% ofthe costs ofconstruction. While the plaintiffShri Vinod KumarAngrish wasresidingonthefirstfloorofthesaid property,his father along with another son Sh.Akshay Kumar Angrish was residing on the ground floor. His brother Akshay after taking into confidence their father, who was an old person aged about 91 years, has been trying to dispossesstheplaintiffShri Vinod KumarAngrish and sell thesaid property forcibly and illegally. His brother also asked the NDPLfor disconnection of the electricity.

5. Thereliefclaimed inthe Civil Suitwasto passa decreefor permanent injunction restraining NDPL from disconnecting the electricity connection. Anotherreliefwastoseek partition ofthesuitproperty.

6. Suitwas contested by filing written statement by the petitioner herein CM(M)No.304/2015 „ rage2of[7] (who is defendantNo.2in the Civil Suit)wherein preliminary objection was taken that the suit property was purchased by Shri Yogendra Pal Angrish using his own resources and the year of purchase was 1976 whereas construction was completed in the year 1979. Further plea was taken that sensing the malafide and malicious intentions of plaintiff Vinod Kumar Angrish, his father Late Shri Yogendra Pal Angrish decided to sell the roof ofthe firstfloor ofthe said property which was sold in December,2009 and funds were utilized by late Shri Yogendra Pal Angrish. Subsequently Shri Yogendra Pal Angrish gifted the ground floor to defendant No.l, his youngerson byregistered gift deed dated D'February,2010.It has also been pleaded that Shri Yogendra Pal Angrish disowned the plaintiff Shri Vinod Kumar Angrish from all of his moveable and immovable properties and severed all his relations with the plaintiffand his family members and it was so published in newspaper 'Virat Vaibhav'. It was further pleaded that ground floor has been given to the defendant No.l vide registered gift deed and first floor has been gifted to the minor grandson by Shri Yogendra Pal Angrish hence the deceased plaintiffhad no right,title or interest in the said property to seek the relief.

7. On acquiring the knowledge of facts as disclosed in the written statement about the said property being gifted by late Shri Yogendra Pal Angrish to his son Sh.AkshayKumar Angrish and grandson Prince Angrish, plaintiffSh.Vinod KumarAngrish soughtamendmentofthe plaintto correct the year of acquisition ofthe property from 1978 to 1976 and also make necessary avermentsregarding a giftdeed being gotexecuted by influencing late Shri Yogendra Pal Angrish,who due to his old age was not having the required understanding ofhis acts and deeds and to declare the gift deeds dated 01.02.2010 and 19.08.2011 as null and void. CM(M)No.304/2015

8. The learned Trial Court vide impugned order dated 13.05.2014 allowed the amendmentofthe plaint observing as under:- '• Having heard the submissions made by the Ld.counselfor the parties this Court is ofthe view that case is at the initial stage in which the issues are yet to be framed and if the objection has been raised in the WS the same can be amended in the replication/rejoinder but an appropriate application underprovisionsofOrder6Rule 17ofCPChas to befdedand by way ofthe aforesaid application the prayer made by the plaintiff cannot be considered as bogus and frivolous and againsttheprovisions oflaw inasmuch as itis asettledlaw that ifany amendmentis required which isjustandare necessary to adjudicate the issued between theparties then itcan be allowed at any stage ofthe suit to any ofthe party even before passing the judgment and the present application beingfiled by the plaintiffis atthe initialstage inasmuch as the issues ofthissuit are yet to beframed and evidence ofthe parties yet to be led and notprejudice shall be caused to the defendant ifthis Court allows the aforesaid application. Therefore, the aforesaid application U/06Rule 17 ofCode ofCivil Procedure moved by theplaintiffis hereby allowedanddisposedofaccordingly. Nothing stated herein above shall tantamount to expressing any opinion ofthe meritsofthis case. '

9. Learned counsel for the petitioner has submitted that the plaintiff could not have corrected the year ofpurchase ofthe suit property from the year 1978to 1976 specially when the year ofacquisition ofthe property was denied in replication. Learned counsel for the petitioner has further submitted that new facts have been pleaded in the application under Order VI Rule 17 CPC and the entire nature ofthe suit has been changed which is not permissible under the law.

10. Learned counsel for the petitioner has placed reliance on the decision reported as PramodKhanna & Anr. Vs. Subod Khanna & Anr. 2010 Lexton (DHC)1452in supportofhis above contentions. CM(lvO No.304/2015 Page4of?

11. Learned counsel for the respondents has submitted that the dispute was between two brothers in respect ofthe property purchased in the name offather ofthe plaintiffand defendant No.l in Civil Suit No. 214/2011. It has been further submitted that by correcting the year ofacquisition ofthe property in fact the respondents are agreeing to what the petitioner has placed in the written statement as to when the suit property was acquired. Regarding further averments sought to be incorporated by way of amendment,learned counselforthe respondent has emphasized that in view of the new facts being disclosed in the written statement and to avoid multiplicity of the proceedings, the trial being at the initial stage, it was considered necessary to plead all the necessary facts including the facts which have come to the knowledge ofthe plaintiffafter filing ofthe written statement to ensure complete and proper adjudication of all the issues between the parties. Learned counsel for the respondent has relied upon Revaieetu Builders and Developers Vs. Namvanaswamv and Sons & Ors., (2009)10see 84in support ofhis contentions.

12. I have considered the rival contentions. There is no dispute on the issue that the suit property was allotted to late Sh.Yogendra Pal Angrishfather of late Sh.Vinod Kumar Angrish (plaintiff in the eivil Suit) and Sh.Akshay Kumar Angrish (defendant No.2 in the eivil Suit), who is petitioner before this eourt.

13. Though thefactum ofexecution ofgift deeds by late Sh.YogendraPal Angrish was denied in the replication but amendment was to seek the decree for declaration in respect ofthe said gift deeds.

14. While considering the prayer for amendment ofthe pleadings, before such amendment is allowed the Court has to consider whether any such amendment is necessary for determination ofreal question in controversy CM(M)No.304/2015 Page5of? o betweenthe parties. Thefactorsto betaken into consideration while dealing with applicationseeking amendmentwerelaid down in para67ofthe report Revajeetu Builders and Develovers Vs. Namvanaswamv and Sons & Ors.. (2009) 10 see 84, relied upon by the respondents herein, which has also been referred to with approval in the report Pramod Khanna & Anr. Vs. Subod Khanna & Anr. 2010 Lexton (DHe) 1452, relied upon by the petitioner herein.Para67ofthereportis extracted as under:-

67. On critically analyzing both theEnglish andIndian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the applicationfor amendment: (1) Whether the amendment sought is imperativefor properandeffective adjudication ofthe case? (2) Whether the applicationfor amendmentis bonafide or malafide? (3) The amendmentshould not cause suchprejudice to the otherside which cannot be compensatedadequately in terms ofmoney; (4)Refusing amendment would infactlead to injustice orleadto 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."