Full Text
HIGH COURT OF DELHI
Date of Decision: 18th NOVEMBER, 2024 IN THE MATTER OF:
SHRI INDERJEET SINGH BINDRA .....Plaintiff
Through: Mr. Mandeep Singh Vinaik, Mr. Deepak Bastha, Ms. Kanishka Sharma, Ms. Ragini Vinaik and Ms. Thanglunkim, Advocates.
Through: Mr. Hitesh Bhardwaj, Advocate for Defendant No.1 (a)
Mr. Rajesh Yadav, Senior Advocate
Ms. Minakshi Jyoti, Advocate for Defendant Nos. 7 and 8
JUDGMENT
1. This is an application under Order VI Rule 17 CPC filed by the Plaintiff seeking amendment of the Plaint for inserting a prayer for declaration, declaring the Power of Attorney dated 24.07.1987 to be null and void and as never having been executed by the Plaintiff and that the same is forged and fabricated and non est.
2. The present suit has been filed for a decree of declaration and cancellation of 13 Sale Deeds dated 16.09.1988/30.09.1988 in respect of land measuring about 33 Bighas 09 Biswas comprised in rectangle/khasra No.33/7/2, 33/8/2, 33/13, 33/14/1, 33/17, 33/118/2, 36/2 and 36/3 in the area of village Samalkha, Tehsil Mehrauli District New Delhi.
3. Apart from praying for a declaration of the said 13 Sale Deeds as null and void, the Plaintiff has also prayed for a declaration that the Defendants are in illegal possession of the suit properties. Consequential prayers for possession, recovery of money, user and occupation charges of the Defendants etc., have also been made.
4. The case set up in the plaint is that the Plaintiff purchased agricultural land measuring about 33 Bighas 09 Biswas comprised in rectangle/khasra No.33/7/2, 33/8/2, 33/13, 33/14/1, 33/17, 33/118/2, 36/2 and 36/3 in the area of village Samalkha, Tehsil Mehrauli District New Delhi through six separate registered Sale Deeds.
5. It is stated that in the year 1986, one S. Jaswant Singh Bhullar visited USA. It is stated that during the visit, S. Jaswant Singh Bhullar met the Plaintiff and expressed concerns regarding the interest of the Plaintiff more particularly in the wake of anti-Sikh riots in Delhi in the year 1984, S. Jaswant Singh Bhullar suggested that Delhi was not safe for Sikhs and it was advisable for the Plaintiff to dispose of the land in Delhi. It is stated that the Plaintiff got prepared a Power of Attorney and gave the same to S. Jaswant Singh Bhullar, which was taken back by the Plaintiff.
6. It is stated that after few years, S. Jaswant Singh Bhullar introduced the Plaintiff to one Deepak Bhardwaj and he told the Plaintiff that Deepak Bhardwaj had also owned land in the same area and was a very helpful and influential person who is looking after the land of various people who are not residing in India. It is stated that the said Deepak Bhardwaj would safeguard the land and will protect the same against encroachments, trespass etc.
7. It is stated that the said Deepak Bhardwaj met the Plaintiff and promised him that he will look after his land as he has land in the same vicinity and that he is living in the same area. It is stated that relying on the statement of Deepak Bhardwaj, the Plaintiff had accepted the offer of Deepak Bhardwaj to look after the land since Deepak Bhardwaj was in permissive possession of the suit land as its caretaker and he had no right whatsoever in the suit land. No document had been executed by the Plaintiff in favour of Deepak Bhardwaj.
8. It is stated that the said S. Jaswant Singh Bhullar passed away in
1993. Even after the death of S. Jaswant Singh Bhullar in the year 1993, this arrangement continued as there was no occasion for the Plaintiff to have any suspicion or any apprehension about the intention of Deepak Bhardwaj to illegally grab the suit land. It is stated that the Plaintiff came to know that the land was in occupation of several persons and suits had been filed for the lands owned by the Plaintiff.
9. It is stated that the Plaintiff came to India and he came to know that three civil suits were pending in this Court. It is stated that the said Deepak Bhardwaj, who had been murdered in the year 2013, was misusing the said land. The Plaintiff came to know that the said S. Jaswant Singh Bhullar had retained a copy of the Power of Attorney and had executed several Sale Deeds of the said property belonging to the Plaintiff to several persons on the basis of the said Power of Attorney which had been taken back by the Plaintiff.
10. It is pertinent to mention here that in the suit as framed, the Plaintiff did not pray for cancellation of the Power of Attorney dated 24.07.1987 executed in the name of S. Jaswant Singh Bhullar or the declaration of the Power of Attorney as forged and fabricated.
11. In the written statement, legal challenge has been raised stating that without challenging the Power of Attorney dated 24.07.1987 which had been registered and misused, the suit is not maintainable. It is also stated that the suit is barred under Section 34 of the Specific Relief Act, 1963 in the absence of a relief of possession.
12. The present application has been filed for insertion of prayer to challenge Power of Attorney dated 24.07.1987.
13. Heard the learned Counsels for the parties and perused the material on record.
14. It is the case of the Plaintiff that all the necessary averments for a declaration that the Power of Attorney dated 24.07.1987 is forged and fabricated have been pleaded but unfortunately, the prayer for declaring the Power of Attorney dated 24.07.1987 to be forged and fabricated was omitted to be made. It is stated that the delay in making the said prayer alone would not take away the right of a Court to permit the amendment to introduce the prayer for a declaration that the Power of Attorney dated 24.07.1987 is forged and fabricated.
15. Learned Counsel appearing for the Plaintiff places reliance on the judgment of Apex Court in South Konkan Distilleries and Another v. Prabhakar Gajanan Naik and Others, (2008) 14 SCC 632, to contend that the fact that a fresh suit on the amended application would be barred by limitation on the date of filing would only be a factor to be taken into account in the exercise of discretion as to whether the amendment should be ordered but it does not affect the power of the Court to order it if that is required in the interest of justice. Learned Counsel for the Plaintiff also places reliance on the judgment of the Apex Court in Life Insurance Corporation of India v. Sanjeev Builders Private Limited & Anr., 2022 (16) SCC 1.
16. Per contra, learned Counsel appearing for the Defendants states that the suit itself is not maintainable in the absence of a prayer of declaration of the Power of Attorney dated 24.07.1987 allegedly executed by the Plaintiff in favour of the S. Jaswant Singh Bhullar and the amendment at this juncture, that too after 37 years of the Power of Attorney or at least after 8 years after the Plaintiff had come to India could not be allowed. He states that there ought to have been a prayer for cancellation of the Power of Attorney dated 24.07.1987. It is stated by the learned Counsel for the Defendants that the whole case of the Plaintiff was that the instrument allegedly executed by the Plaintiff had never been executed and had been taken back and without a prayer to cancel the Power of Attorney dated 24.07.1987, the suit was not maintainable.
17. Learned Counsel for the Defendants further states that the amendment will relate back to the date of filing of the suit and had the suit been filed on the date on which the application for amendment was filed, the suit would have been barred by limitation, therefore, the application ought not to be allowed. An application under Order VII Rule 11 CPC on behalf of Defendant No.8 has been filed for rejecting the plaint on the ground that the prayer for declaring the Power of Attorney dated 24.07.1987 has not been made.
18. Heard learned Counsel appearing for the Parties and perused the material on record.
19. The law regarding the powers of the Court to allow an amendment of plaint under Order VI Rule 17 CPC has been laid down by the Apex Court in several judgments. It is well settled that Courts must be extremely liberal in granting the prayer for amendment, however, Court 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. As early as in 1957, the Apex Court in L. J. Leach and Co. Ltd v. Jardine Skinner and Co., (1957) SCC OnLine SC 68 has observed as under:-
20. The said judgment has been followed in T. N. Alloy Foundry Co. Ltd v. T. N. Electricity Board, (2004) 3 SCC 392. It is also apposite to place reliance on the judgment of the Privy Council in Charan Das v. Amir Khan, (1920) SCC OnLine PC 51, wherein the Privy Council has held that the power to make an amendment cannot be exercised where its effect is to take away from the Defendant a legal right which had accrued to him by lapse of time. The Court has to be cautious to consider as to whether allowing the amendment would cause injury to the Defendant.
21. It is well settled that limitation bars a remedy and does not extinguish the right. The Courts have to be careful if the remedy which stands extinguished would be permitted to be revived by permitting the amendment then substantial prejudice will be caused to the Defendant by permitting such an amendment and such amendment, therefore, cannot be allowed.
22. According to Article 59 of the Limitation Act, 1963, a suit to cancel or set aside an instrument or decree or for the rescission of a contract has to be filed within three years when the facts entitle the Plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. Article 59 of the Limitation Act, 1963 reads as under:
59 To cancel or set aside an instrument or decree or for the rescission of a contract. Three years. When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.
23. The Apex Court in Prem Singh v. Birbal, (2006) 5 SCC 353, while dealing with a case under Article 59 of the Limitation Act, 1963, has observed as under:-
extinguished.
12. An extinction of right, as contemplated by the provisions of the Limitation Act, prima facie would be attracted in all types of suits. The Schedule appended to the Limitation Act, as prescribed by the articles, provides that upon lapse of the prescribed period, the institution of a suit will be barred. Section 3 of the Limitation Act provides that irrespective of the fact as to whether any defence is set out or is raised by the defendant or not, in the event a suit is found to be barred by limitation, every suit instituted, appeal preferred and every application made after the prescribed period shall be dismissed.
13. Article 59 of the Limitation Act applies specially when a relief is claimed on the ground of fraud or mistake. It only encompasses within its fold fraudulent transactions which are voidable transactions.
14. A suit for cancellation of instrument is based on the provisions of Section 31 of the Specific Relief Act, which reads as under:
such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.”
15. Section 31 of the Specific Relief Act, 1963 thus, refers to both void and voidable documents. It provides for a discretionary relief.
16. When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non est in the eye of the law, as it would be a nullity.
17. Once, however, a suit is filed by a plaintiff for cancellation of a transaction, it would be governed by Article 59. Even if Article 59 is not attracted, the residuary article would be.
18. Article 59 would be attracted when coercion, undue influence, misappropriation or fraud which the plaintiff asserts is required to be proved. Article 59 would apply to the case of such instruments. It would, therefore, apply where a document is prima facie valid. It would not apply only to instruments which are presumptively invalid. (See Unni v. Kunchi Amma [ILR (1891) 14 Mad 26] and Sheo Shankar Gir v. Ram Shewak Chowdhri [ILR (1897) 24 Cal 77].)
19. It is not in dispute that by reason of Article 59 of the Limitation Act, the scope has been enlarged from the old Article 91 of the 1908 Act. By reason of Article 59, the provisions contained in Articles 91 and 114 of the 1908 Act had been combined. ****
27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption." (emphasis supplied)
24. Applying the law down by the Apex Court in Prem Singh (supra) to the facts of the present case, this Court is of the opinion that even as per the averment in the plaint, the Plaintiff came to know regarding fraudulent sale deeds in the year 2016 and the present suit has been filed in the year 2017 without a prayer to cancel or set aside the Power of Attorney dated 24.07.1987. The Defendants have taken a contention that the suit as framed is not maintainable without a prayer seeking a relief to set aside the Power of Attorney dated 24.07.1987. Applying Article 59 of the Limitation Act, 1963, the said prayer ought to have been made at least before 2019 which has not been done by the Plaintiff. It is well settled that pleadings alone cannot help a Plaintiff to seek a prayer if not specifically made.
25. The Plaintiff now by way of this amendment is attempting to insert the prayer which, if permitted, will cause prejudice to the Defendants. The contention of Defendants is that the suit has been filed without the prayer for declaration is bad for which an application under Order VII Rule 11 CPC has been filed for rejecting the plaint. The Plaintiff is trying to insert the amendment only to rectify the error in the suit which according to the Defendants is not maintainable in law. The amendment has been sought after seven years of the institution of the suit and after eight years on coming to know that the non est Power of Attorney has been misused. The amendment, if permitted, will prejudice the Defendants as the amendment, if permitted, would date back to the plaint as stated in L. J. Leach (supra). If the application of Defendant No.8 filed under Order VII Rule 11 is accepted, the suit, had it been filed today, would be barred by limitation and will revive a dead claim which in the opinion of this Court cannot be permitted.
26. This Court is, therefore, not inclined to accede to the amendment as prayed for by way of the present application.
27. The application is dismissed. I.A. 7989/2024
1. This application under Order VII Rule 11 CPC has been filed by Defendant No.8 for rejection of the plaint.
2. Learned Counsel appearing on behalf of Defendant Nos.[7] & 8 requested for an adjournment on the ground that main Counsel is unwell.
3. List on 10.01.2025 for hearing on I.A. No.7989/2024 & I.A. No.1955/2024.
SUBRAMONIUM PRASAD, J NOVEMBER 18, 2024