Full Text
HIGH COURT OF DELHI
Date of Decision: 01st JULY, 2026 IN THE MATTER OF:
IN
JAI PRAKASH TYAGI & ORS ......Plaintiffs
Through: Mr. Amrish Kumar, Advocate for Plaintiff No. 1.
Mr. Sunil Dutt Dixit, Advocate for P-2 to P-7.
Through:
JUDGMENT
1. This application under Order VI Rule 17 read with Section 151 of CPC has been filed by the Plaintiffs for amendment of Plaint.
2. The present Suit has been filed by the Plaintiffs seeking partition of ancestral immovable properties situated at Village Wazirabad, Delhi, comprising, inter alia, land measuring 1200 sq. yards, 507 sq. yards and 600 sq. yards out of Khasra No. 16/1; 325 sq. yards out of Khasra No. 15 min; 257 sq. yards out of Khasra No. 14 min, all situated at Gali No. 2, Sangam Vihar, Wazirabad, Delhi-110084; and agricultural land measuring approximately 8 bighas out of Khasra No. 58 min and 19 biswas out of Khasra No. 59/2 in the revenue estate of Village Wazirabad (hereinafter referred to as the “Suit Properties”).
3. Before dwelling into the facts of the case, it is imperative to understand the family lineage which originates from Late Sh. Fateh Lal, who had four sons, namely Sh. Ravi Dutt Tyagi, Sh. Om Dutt Tyagi, Sh. Manak Dutt Tyagi and Sh. Tej Ram Tyagi, from whom the present parties derive their respective claims. From the branch of Sh. Ravi Dutt Tyagi descends Sh. Bhushan Tyagi (Defendant herein) and Sh. Jai Prakash Tyagi (Plaintiff No. 1 herein). From the branch of Sh. Om Dutt Tyagi descends Sh. Mahesh Chand Tyagi (Plaintiff No. 2 herein) and Sh. Ashok Tyagi (Plaintiff No. 3 herein). From the branch of Sh. Manak Dutt Tyagi descends Sh. Deepak Kumar Tyagi (Plaintiff No. 4 herein) and Sh. Sushil Tyagi (Plaintiff No. 5 herein) through their father Sh. Suresh Chand Tyagi. From the branch of Sh. Tej Ram Tyagi descends Sh. Satyavir Tyagi (Plaintiff No. 6 herein) through his father Sh. Mahender Singh.
4. The facts of the case, as discernible from the Plaint, are as under: a. It is stated that the Suit Properties originally belonged to Late Sh. Fateh Lal, who was the recorded Bhumidhar of the Suit Properties. It is stated that upon his demise, the Suit Properties devolved upon his four sons, namely Sh. Ravi Dutt Tyagi, Sh. Om Dutt Tyagi, Sh. Manak Dutt Tyagi and Sh. Tej Ram Tyagi, who became co-bhumidars and co-sharers. b. It is the case of the Plaintiffs that the entire revenue estate of Village Wazirabad was declared urbanized by notification dated 06.05.1982, issued under Section 507 of the Delhi Municipal Corporation Act, 1957, enabling conversion of agricultural lands for residential and commercial use. Thereafter, under Award No. 135/86-87, substantial portions of land out of Khasra Nos. 58 and 59 were acquired by the Government for widening of the Outer Ring Road. It is the case of the Plaintiffs that despite the entire revenue estate of Village Wazirabad having been declared urbanized, and despite cessation of agricultural activities, no partition by metes and bounds ever took place and the parties continued in joint possession of the residual lands as reflected in the revenue records for the period 1994-95. c. It is further pleaded that certain portions of the Suit Properties were subject matter of prior litigations, including proceedings culminating in settlement before the Delhi Mediation Centre in CS No. 178/2016, relating to land measuring 567 sq. yards out of Khasra No. 16/1, Village Wazirabad, Sangam Vihar, New Delhi, and a separate civil suit bearing CS No. 81/2009 pending before the learned Civil Judge concerning land measuring 150 sq. yards out of the same khasra. The Plaintiffs further aver that the Defendant had also instituted a suit for permanent injunction against the Delhi Development Authority, registered as CS No. 896/2016, claiming exclusive ownership and possession of the joint property on the basis of an oral partition, which claim is disputed by the Plaintiffs. It is stated that in the said proceedings, the Plaintiffs moved an application under Order I Rule 10 read with Section 151 CPC on 16.01.2017 seeking impleadment in the proceedings. It is further alleged that the Defendant attempted to create third-party interests in the joint property and to raise unauthorized construction thereon and, upon the Plaintiffs requesting the Defendant to effect partition and desist from such acts, he refused and allegedly extended threats to the Petitioners. d. The Plaintiffs have also pleaded subsequent acts on the part of the Defendant, including alleged execution of an agreement to sell dated 23.02.2018 in favour of third parties in respect of a portion of land measuring 600 sq. yards out of Khasra No. 16/1 and attempts in February and March 2018 to dispossess the Plaintiffs by unauthorized dumping of debris and encroachment, which resulted in complaints being lodged with the police authorities. e. In these circumstances, asserting that the suit property continues to be joint ancestral property of the parties and that no lawful partition has been effected, the Plaintiffs have instituted the present suit seeking a decree of partition by metes and bounds and allocation of their respective shares in the Suit Properties.
5. Summons in the Suit were issued on 03.03.2017. Written Statement has been filed by the Defendant. Issues were framed on 01.05.2019, trial has commenced.
6. The Plaintiffs have filed the present application seeking amendment of the Plaint on the ground that certain material facts have come to their knowledge subsequent to the filing of the Suit and they are necessary to be brought on record for complete adjudication of the dispute. It is stated that Plaintiff No. 1, while appearing in RFA No.659/2023, titled as Jai Prakash Tyagi v. Aamin Afaque Ahmed Faizi & Anr., on 17.08.2023, discovered that another case, namely FAO No. 61/2019, titled as Prem Verma v. Bhushan Tyagi, concerning a portion of ancestral property, was also listed before the same Bench of this Court. This prompted further enquiry, whereupon the Plaintiffs came to know that land measuring 6 bighas 10 biswas out of Khasra No. 5/6, Village Wazirabad (now Gali No. 3, Sangam Vihar) was ancestral land belonging to the legal heirs of late Sh. Fateh Lal, but had not been included in the Suit Properties for want of knowledge. It is further stated that in December 2009, a suit for permanent injunction, being Civil Suit No. 478/2009, was filed by one Prem Verma against the Defendant herein before the Civil Judge, Delhi, regarding 400 sq. yards out of Khasra No. 5/6. It is stated that the said Suit was later dismissed in default on 22.02.2011. It is stated that criminal proceedings were initiated by the Defendant by filing a complaint under Section 200 CrPC against the said Prem Verma, leading to registration of FIR No. 49/2012 under Sections 420/468/471/120-B of the Indian Penal Code. During investigation, documents including GPAs allegedly executed by the predecessors of the parties in 1988 and 1991 came to light, forming the basis of subsequent conveyances culminating in a sale deed dated 04.03.2009 in favour of Prem Verma. However, forensic examination later opined that the signatures of Ravi Dutt on the disputed documents were not genuine. The Defendant thereafter filed CS(OS) No. 2438/2012 before this Court seeking declaration and possession, asserting exclusive ownership based on alleged partition, which the Plaintiffs contends to be false. The said suit was later transferred to the District Court as CS DJ 19731/16 (Old No. CS 723/2016), where interim relief was granted on 24.02.2018, and the order was subsequently challenged in FAO No. 61/2019, wherein proceedings are pending and matter has been referred to Delhi High Court Mediation and Conciliation Centre. It is stated that on learning these facts, the Plaintiff No. 1 filed an impleadment application under Order I Rule 10 CPC on 26.09.2023 seeking impleadment in CS DJ 19731/16 (Old No.723/2016), asserting co-ownership rights. It is alleged that despite objections, the parties were referred to mediation by Order dated 04.10.2023, which the Plaintiff has challenged before this Court. Consequently, the Plaintiffs seek amendment of the plaint to include the newly discovered property out of Khasra No. 5/6 and related factual developments.
7. Reply to the present application has been filed by the Defendant opposing the amendment on the ground that the same constitutes the third amendment sought by the Plaintiffs and is malafide, and intended only to delay the proceedings and harass the Defendant. It is contended that no fresh cause of action has arisen subsequent to institution of the present Suit and that the properties sought to be included have already been subjected to an oral family settlement, pursuant to which land measuring 1125 sq. yards out of Khasra Nos. 58 min and 59/2 devolved exclusively upon the Defendant, who is stated to be in settled possession thereof. The Defendant further submits that the amendment application is defective for want of filing of relevant documents and annexures relied upon by the Plaintiffs. It is also argued that the Plaintiffs were aware of prior litigations concerning portions of the property, including the Defendant’s suit for injunction against the DDA, and that their impleadment therein renders the present amendment unnecessary and duplicative. It is further contended during the course of submissions that the property now sought to be introduced by way of the present amendment forms the subject matter of another suit, being CS DJ No. 1145/2024, filed by the Plaintiff No.1 herein before the learned District Judge, Tis Hazari Courts, Delhi. It is further contended that Plaintiff No.1 has consciously elected to pursue independent proceedings being CS DJ No.1145/2024 in respect of the very same property which is now sought to be introduced and having invoked a separate jurisdiction on a separate set of pleadings, the Plaintiffs now cannot seek enlargement of the present Suit by incorporating the same subject matter. The Defendant denies that the Plaintiffs are in possession of the Suit properties and submits that the proposed amendment would materially alter the nature and scope of the suit, attracting the principle of estoppel in view of the Plaintiffs’ prior conduct and admissions in earlier proceedings, and causes serious prejudice to the Defendant.
8. Heard the learned Counsels for the parties and perused the material on record.
9. Before going further, it is pertinent to extract Order VI Rule 17 of the CPC and the same reads as under:
10. Order VI Rule 17 of the CPC permits amendment of pleadings at any stage, so long as such amendment is necessary for determining the real questions in controversy, and provided the application is not hit by the proviso restricting post-trial amendments.
11. The law relating to amendment of pleadings under Order VI Rule 17 of the CPC has been crystallized by the Apex Court in several cases. The Apex Court in Ganesh Prasad v. Rajeshwar Prasad & Ors, 2023 SCC OnLine SC 256, has held as under:
34. In the case of P.A. Jayalakshmi v. H. Saradha reported in (2009) 14 SCC 525, the above observations were reiterated by this Court and in the light of the same, this Court in para 9 held as under:
“4. This Court in A.K. Gupta & Sons Ltd. v. Damodar Valley Corpn. [AIR 1967 SC 96: (1966) 1 SCR 796] held: “The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred: Weldon v. Neal [[L.R.] 19 Q.B. 394: 56 LJ QB 621]. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: See Charan Das v. Amir Khan [AIR 1921 PC 50: ILR 48 Cal 110] and L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357: 1957 SCR 438] The principal reasons that have led to the rule last mentioned are, first, that the object of courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes (Cropper v. Smith [[L.R.] 26 Ch. 700: 53 LJ Ch 891: 51 LT 729]) and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended (Kisandas Rupchand v. Rachappa Vithoba Shilwant [ILR (1909) 33 Bom 644: 11 Bom LR 1042] approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363: 1957 SCR 595]). The expression „cause of action‟ in the present context does not mean „every fact which it is material to be proved to entitle the plaintiff to succeed‟ as was said in Cooke v. Gill [[L.R.] 8 C.P. 107: 42 LJCP 98: 28 LT 32] in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corpn. Ltd. [[1962] 2 All ER 24 (CA)] and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words „new case‟ have been understood to mean „new set of ideas‟: Dornan v. J.W. Ellis and Co. Ltd. [[1962] 1 All ER 303 (CA)] This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time.” Again in Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393] this Court held: (SCC p. 399, para 22) “The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court.” “4. It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.”……” *****
37. Thus, the Plaintiffs and Defendant are entitled to amend the plaint, written statement or file an additional written statement. It is, however, subject to an exception that by the proposed amendment, an opposite party should not be subject to injustice and that any admission made in favour of the other party is not but wrong. All amendments of the pleadings should be allowed liberally which are necessary for determination of the real controversies in the suit provided that the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken.
38. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings.”
12. In addition, the Apex Court in Life Insurance Corporation of India v. Sanjeev Builders Private Limited, (2022) 16 SCC 1, after analysing several case laws has summarised the law regarding amendment of pleadings as under: “71. Our final conclusions may be summed up thus:
71.3. The prayer for amendment is to be allowed: 71.3.1. If the amendment is required for effective and proper adjudication of the controversy between the parties. 71.3.2. To avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment do not seek to withdraw any clear admission made by the party which confers a right on the other side, and
(c) the amendment does not raise a time-barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
71.4. A prayer for amendment is generally required to be allowed unless: 71.4.1. By the amendment, a time-barred claim is sought to be introduced, in which case the fact that the claim would be time-barred becomes a relevant factor for consideration. 71.4.2. The amendment changes the nature of the suit. 71.4.3. The prayer for amendment is mala fide, or 71.4.4. By the amendment, the other side loses a valid defence.
71.5. In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
71.6. Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
71.7. Where the amendment merely sought to introduce an additional or a new approach without introducing a time-barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
71.8. Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
71.9. Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
71.10. Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
71.11. Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi [Vijay Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897].)”
13. The first and foremost requirement which falls for consideration is whether the Plaintiffs have satisfied the mandate of the proviso to Order VI Rule 17 CPC. The material on record reveals that summons in the Suit were issued on 03.03.2017, Written Statement was filed, issues were framed on 01.05.2019 and the trial has already commenced. Therefore, the present application is required to be tested on the touchstone of the proviso to Order VI Rule 17 CPC. Once trial has commenced, the burden shifts upon the applicant to establish that despite exercise of due diligence, the facts sought to be incorporated could not have been pleaded before commencement of trial. Mere assertion of subsequent knowledge is not sufficient; the applicant must disclose circumstances demonstrating genuine inability despite diligent efforts.
14. In the present case, the Plaintiffs seek to explain the delay by stating that Plaintiff No.1 came to know of the property forming part of Khasra No.5/6 while appearing in proceedings before this Court in August, 2023. This explanation does not satisfy the requirement of due diligence. The property is asserted to be ancestral property descending from a common predecessor. The pleadings themselves disclose existence of multiple litigations concerning the said property dating back to the year 2009, followed by criminal proceedings, declaratory proceedings and appellate proceedings extending over several years. In such circumstances, a bald plea of discovery in the year 2023, unsupported by any explanation as to why the alleged ancestral property remained outside the knowledge of the Plaintiffs for such a prolonged period, cannot be accepted as constituting due diligence within the meaning of the proviso to Order VI Rule 17 CPC.
15. The settled legal position, as reiterated by the Apex Court in Life Insurance Corporation of India (supra), is that amendment should ordinarily be allowed if necessary for effective adjudication, unless it introduces a new and inconsistent case, withdraws an admission conferring a right on the opposite party, materially changes the nature of the suit, or is demonstrably lacking in bona fides.
16. In the present case, the Suit has been instituted seeking partition of specified ancestral properties forming part of the estate of late Sh. Fateh Lal. By way of the present Application, the Plaintiffs seek to incorporate an additional property measuring 415 sq. yards out of Khasra No. 5/6 situated at Village Wazirabad within the scope of the Suit. The amendment sought is not merely clarificatory or consequential in nature, but seeks to enlarge the subject-matter of the Suit and introduce disputes relating to a property which was not part of the original lis.
17. Further, material placed on record indicates that Plaintiff No.1 had independently instituted a separate suit bearing CS DJ No. 1145/2024 before the learned District Judge, Central District, Tis Hazari Courts, Delhi, seeking declaration of his rights in respect of the very same property now sought to be introduced by way of the present amendment. The said fact has also been acknowledged in a subsequent application, being I.A. No.18406/2025, filed in the present proceedings by Plaintiffs No.2 to 6 seeking transposition of Plaintiff No.1 as a Defendant No.2. The existence of such parallel proceedings prima facie suggests that the claim concerning the said property was not wholly unknown to the Plaintiffs. The withdrawal of CS DJ No. 1145/2024 after settlement, coupled with the present attempt to incorporate the same property in the pending partition suit, reflects a conduct which does not support the plea of due diligence. Having elected to pursue an independent substantive remedy in respect of the said property, Plaintiff No.1 cannot simultaneously seek enlargement of the present suit by incorporation of the same controversy through amendment.
18. The institution of an independent suit seeking declaratory and consequential reliefs in respect of the very property now sought to be introduced demonstrates that Plaintiff No.1 himself treated the disputes pertaining to the said property as constituting a distinct and independent controversy requiring separate adjudication. Having elected to pursue a substantive remedy in respect of the said property, Plaintiff No.1 cannot simultaneously seek enlargement of the present partition suit by incorporating the same controversy through amendment.
19. It is also significant that the stand taken in the present Application proceeds on the basis that the property forms part of the joint ancestral estate liable to partition amongst all co-sharers, whereas the pleadings placed on record disclose that Plaintiff No.1 has taken contradictory stands regarding the status of the property sought to be introduced. While the present amendment application proceeds on the basis that the property forms part of the joint ancestral estate of late Sh. Fateh Lal and is liable to partition amongst the parties, in the separate suit filed by Plaintiff No.1 it was stated that the said property had fallen to the share of late Sh. Ravi Dutt after an oral partition. At this stage, the Court does not intend to delve into the merits of such rival claims; however, the existence of such prima facie inconsistent positions is relevant in assessing the bona fides of the amendment sought. It is well settled that an amendment which has the effect of withdrawing an earlier admission or setting up a mutually destructive case ought not to be permitted, particularly where it would prejudice the opposite party or alter the foundation of the suit.
20. The submission of the Plaintiff that the amendment deserves to be allowed to avoid multiplicity of proceedings also does not merit acceptance. The principle of avoidance of multiplicity is intended to prevent fragmentation of a single controversy. It cannot be invoked to justify introduction of every subsequent dispute into a pending suit irrespective of its nature and procedural stage. More importantly, where independent proceedings have already been instituted concerning the very property sought to be introduced, allowing amendment would not reduce multiplicity but may instead result in overlapping adjudication of connected issues.
21. It is pertinent to note that Plaintiff No.1 has already filed a Suit, being CS DJ No. 1145/2024, in respect of the very same property which is now sought to be introduced in the present Suit by way of the present Application. The prayers of the said Suit are reproduced to read as under:
22. The said Suit was withdrawn as having been settled vide Order dated 22.05.2025. After having settled the earlier Suit, the Plaintiff cannot be permitted to amend the Suit in respect of the same property that too after the trial has commenced. While this Court refrains from recording any final finding on the applicability of Order II Rule 2 CPC at this stage, the attempt of the Plaintiff to incorporate the said property by way of amendment raises a prima facie concern of splitting of claims arising out of the same cause of action. The proposed amendment, therefore, appears to be an endeavour to expand the scope of the present proceedings so as to include matters which could have been the subject of comprehensive adjudication in earlier litigation. Such an approach cannot be encouraged in the exercise of discretionary jurisdiction under Order VI Rule 17 of the CPC.
23. This Court is of the considered opinion that the Plaintiffs have failed to establish due diligence within the meaning of the proviso to Order VI Rule 17 CPC. The proposed amendment seeks introduction of an entirely new property and a distinct factual controversy after commencement of trial. The property sought to be introduced was part of an independent proceedings instituted by Plaintiff No.1 himself. Allowing the amendment would materially enlarge the scope of the Suit, reopen issues that have already crystallized and cause serious prejudice to the Defendant.
24. In the totality of the circumstances, this Court is of the considered view that the proposed amendment is neither necessary for determining the real controversy between the parties in the present Suit nor supported by a credible explanation satisfying the requirement of a diligent due diligence. The amendment would materially change the scope of the Suit and introduce issues which are extraneous to the original lis.
25. Accordingly, the application is dismissed.
SUBRAMONIUM PRASAD, J JULY 01, 2026 Rahul