Devender Kumar Bajaj and Ors. v. Satish Kumar Bajaj and Anr.
Delhi High Court·21 Sep 2011·2011:DHC:4882
G. S. Sistani
CS(OS) 1387/1997
2011:DHC:4882
civilpetition_dismissedSignificant
AI Summary
The Delhi High Court dismissed the plaintiff's belated application to amend the plaint to introduce a new and inconsistent claim of partnership ownership, holding that such amendment would prejudice the defendants and alter the fundamental character of the suit.
Full Text
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CS(OS) 1387/1997 25 $~ HIGH COURT OF DELHI CS(OS) 1387/1997
JUDGMENT
Delivered on: 21.09.2011 DEVENDER KUMAR BAJAJ AND ORS. ..... Plaintiff Through: Mr.B.R. Sharma, Advocate
versus
SATISH KUMAR BAJAJ AND ANR. E+ ..... Defendant Through: Mr.Jayant Nath, Sr. Advocate with Mr.Vivek B. Saharya, Advocate
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
1. Whether the Reporters of local papers may be allowed to see the judgment? YES
2. To be referred to Reporter or not? YES
3. Whether the judgment should be reported in the Digest? YES
G.S.SISTANI, J. (ORAL)
IA. No.10095/2010
1. This is an application filed by the plaintiff under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure, seeking amendment in the plaint in the present suit for partition, perpetual injunction and declaration against the defendants, which is pending before this court.
2. Counsel for the plaintiff submits that by the present amendment, plaintiff wishes to incorporate facts which are extremely necessary for final adjudication of the controversy between the parties. He next submits that the amendment goes to the root of the matter and the facts which are sought to be brought on record could not be brought on record, despite due diligence of the plaintiff. It is stated that on 30.01.2009 when the plaintiff was cleaning the 2011:DHC:4882 wooden taand on the roof, certain old papers / ledger/ documents were found. On seeing the same, plaintiff came to know that one such document was an old pass-book of State Bank of Bikaner Limited and another was a cash book, Rokad Bahi of the firm M/s.Bakshi Ram Bajaj & Sons as per which all the sons of late Shri Bakshi Ram Bajaj were the partners of the said firm. On verification of the said documents it came to the knowledge of the plaintiff that the suit property was purchased from the funds of the said firm in which all the brothers, parties to the present suit, were partners. It is further submitted that the sale deed of the suit property already forms part of the record and from which it is quite evident that the sale consideration amounting to Rs.73,000/- of the suit property was paid through cheques drawn from the account of the firm maintained with the State Bank of Bikaner Ltd. and the sale deed was executed in favour of late Sh.Bakshi Ram Bajaj, father of the parties. It is submitted that since these documents were not in possession of the plaintiff at the relevant time, therefore, the fact that the suit property was purchased out of the funds of the partnership was not incorporated in the plaint. It is also submitted that the said documents are extremely relevant and important to decide and adjudicate upon the disputes between the parties, who are brothers and sisters, while defendant no.1 is claiming the right over the entire property on the basis of a Will alleged to have been executed by the father of the parties. Counsel also submits that on finding these documents the plaintiff filed an application under Order 7 Rule 14 CPC, which was dismissed by this court vide order dated 20.05.2010. It is submitted that subsequently, the present application has been filed wherein he wishes to amend para 4 of the plaint, which is reproduced below:
“4. That however, the defendant no.1 who is the younger son of Late Shri Bakshi Ram Bajaj, has recently started claiming himself to be the exclusive owner of the said property no.6/50, WEA, Karol Bagh, Delhi, laying his claim on the alleged Will dated 13.9.1993, allegedly executed by Late Shri Bakshi Ram Bajaj, resting his claim on the said alleged Will, the said defendant no.1 has already filed a Application for Probate in the Court of District Judge, Delhi being case No.67/97. “It is also pertinent to mention herein that the suit property was owned and purchased from the funds /income of the firm namely M/s.Bakshi Ram Bajaj & Sons, Late Shri Bakshi Ram Bajaj and his sons, plaintiffs and defendants being partners of the firms are the joint owner of the suit property. Therefore, Late Shri Bakshi Ram Bajaj was not the exclusive owner of the suit property and as such was not competent to execute any WILL in favour of defendant No.1 for whole of the suit property.”
3. By this application, plaintiff would also like to amend para 6 on the same lines, which is reproduced below:
“6. That Late Shri Bakshi Ram Bajaj has actually not made any such Will and did not bequeath the said property to the defendant No.1 and, therefore, the claim of Defendant No.1 that by virtue of this WILL he has become its absolute owner is absolutely false and is vehemently denied. It is pertinent to state here that Late Shri Bakshi Ram Bajaj was living in the property in dispute with all his four sons i.e. the plaintiff no.1 and 2 and the defendants throughout his life. He was showering his unfailing love in bountiful measures upon all
his sons and daughters and there was no reason for him to bequeath the property in dispute to the defendant no.1 alone nor has it been stated anywhere that any of his sons had in any way acted in any unfilial manner or had not served him in the evening of his wife or had acted in any derogatory manner to have earned his displeasure to be deprived from inheriting his property. The Will is highly suspicious and is absolutely false, forged and fabricated. Defendant No.1 is denying or is interested in denying the claim of the plaintiffs as also of defendant no.2 to be co-owners in the said property and to have inherited the same in equal measures after the demise of their father. The defendant no.1 is not only denying or is interested in denying the title of the plaintiffs and defendant no.2 to be co-owners of the said property but he has in fact already filed the suit for recovery of possession against the defendant no.2 being suit No.67/97 which matter is presentlt pending in the Court of Sh.M.L. Sahni, Addl. District Judge, Delhi. Copy of the said suit filed by the defendant no.1 against defendant no.2 is attached hereto. The plaintiffs very much requested the defendant no.2 that he should join them as plaintiff in filing the present suit for partition but he has declined to do so and it is under these circumstances that the said Sh.Ravinder Kumar Bajaj has been impleaded as defendant no.2.”
4. While relying upon Sumesh Singh Vs. Phoolan Devi & Ors. 2010 I AD (SC) 366, counsel for the plaintiff submits that proviso which has been added to order 6 Rule 17 would not be applicable to the present proceeding, as the present suit has been filed prior to the amendment in order 6 Rule 17. He also submits that the suit was filed in the year 1997 whereas the amendment was made in the year 2002. In support of this submission counsel for the plaintiff has relied upon the observations of the Supreme Court in paragraphs 11 and 12, which are reproduced below:
11. Mr. Rana would submit that having regard to the proviso appended to Order VI, Rule 17 of the Code of Civil Procedure, the amendment could not have been allowed. The said proviso has been added by Act 22 of 2002 w.e.f 1.7.2002.
12. By reason of Section 16(2)(b) of the Code of Civil Procedure (Amendment) Act, 2002, the amendments carried out therein shall only apply to in respect of the suits which were filed thereafter. {See State Bank of Hyderabad v. Town Municipal Council (2007) 1 SCC 765}. As the suit had been filed in the year 1999, the proviso appended to Order VI, Rule 17 shall not apply.”
5. Counsel has also relied upon Rajesh Kumar Aggarwal & Ors. Vs. K.K. Modi & Ors. 2006 (3) Scale page 312 to canvass his argument that object of order 6 Rule 17 is that the court should try the merits of the case and the amendment should be allowed, which may be necessary for determining the real question in controversy between the parties. He further submits that even otherwise, in case the amendment is not allowed, it would not preclude him from filing suit for partition, as the Supreme Court has held in the case of Rajesh Kumar Aggarwal (Supra) that in case the plaintiff is permitted to file an independent suit then amendment should have been allowed by the Court in order to avoid multiplicity and shorten the litigation to preserve and safeguard rights of both the parties. He further submits that at the time of considering the application under Order 6 Rule 17 CPC it is not open for the Court to satisfy itself about the correctness or the falsity of the case in the amendment.
6. The present application is opposed by Mr.Jayant Nath, learned senior counsel appearing for the defendant and has submitted that firstly the amendment application is highly belated, as the suit is pending since the year 1997, evidence has already been recorded and the case is ripe for arguments on the merits of the matter. Mr.Nath next submits that there is no explanation as to why no amendment application was filed at earliest opportunity available. There is also nothing on record to show that despite due diligence the application could not be filed at the earliest. It is also contended that the amendment sought to be incorporated would change the entire character of the suit for which he has drawn the attention of the court to paragraph 1 of the plaint, which is reproduced below:
“1. That the predecessor-in-interest of the parties hereto, Sh.Bakshi Ram Bajaj, their revered father, was the absolute and exclusive owner of the property bearing no.6/50, WEA, Karol Bagh, Delhi comprised on a piece of land admeasuring 234 Sq. yds. Late Sh.Bakshi Ram Bajaj had purchased the said property in the year 1962 against Registration No.5075 entered in volume No.877 Book No.IV registered with the Office of Sub-Registrar, New Delhi. Photocopy of the said sale deed 29.6.62 in the name of late Shri Bakshi Ram Bajaj, revered predecessor-in-interest of the parties hereto is attached. Lease Hold right of the land underneath also vested in late Shri Bakshi Ram Bajaj who was paying its ground rent at regular intervals to the DDA in whom the said land vests.”
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7. It is submitted that the case of the plaintiff is that late Bakshi Ram Bajaj father of the parties was the exclusive owner of the property bearing no.6/50, WEA, Karol Bagh, Delhi, which was purchased by him in the sum of Rs.73,000/-. By the present amendment the plaintiff seeks to change the entire character of the suit and the amendment sought would cause prejudice and irreparable loss to the defendant, who has been contesting this matter since the year
1997. Learned counsel further submits that the claim sought to be raised at this stage would be barred by limitation as in case the plaintiff seeks a declaration, the period of three years has elapsed. Mr.Nath has also relied upon M/s.Ganesh Trading Co. Vs. Moji Ram (1978) 2 SCC 91 in support of above contention that in case the plaintiff seeks to alter cause of action itself and wishes to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent pleadings cannot be permitted. Mr. Nath has relied upon paragraph 5 of the said judgment which reads as under:
“5. It is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time. But, mere failure to set out even an essential fact does not, by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to
supply the omission has been and could sometimes be viewed as equivalent to an introduction of a new cause of action which, cured of its shortcomings, has really become a good cause of action. This, however, is not the only possible interpretation to be put on every defective state of pleadings. Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions such as payment of either any additional Court fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings.”
8. Mr.Nath has also relied upon Madhusudan Gupta Vs. Dinesh Gupta 133 (2006) DLT Page 459 and more particularly paragraph 22 of the judgment to the same effect that permitting the plaintiff to amend the plaint by allowing him to introduce a new case cannot be permitted. Para 22 of the judgment reads as under:
“22. Permitting the respondent/plaintiff to amend the plaint would amount to allowing him to base his claim on a new case on which the suit had not been originally founded. The facts as alleged in the plaint and the relevant recitals contained in the Agreement on which suit of the respondent/plaintiff was founded, does not permit the amendment sought to be incorporated by way of application as preferred by the respondent/plaintiff. The recital clause of the Agreement is clear, unequivocal and unambiguous. It does not permit any interpretation different from that which is obvious on a bare reading thereof, which is to the effect that the amount of Rs. 32 lakh had been paid to the appellant/defendant No. 1 on the date of execution of the Agreement i.e. on 14th June, 1997 by mode of cash and by cheque. What is proposed to be incorporated in the plaint now, by way of amendment, is an entirely new and different claim set up by the respondent/plaintiff to the effect that the
respondent/plaintiff had already advanced a sum of Rs. 17.[5] lakh to the appellant/defendant No. 1 and his wife over a period of time starting from June, 1993 and that for the said sum, the appellant/defendant No. 1 and his wife had executed a promissory note in favour of the respondent/plaintiff acknowledging the receipt of the said amount which amount was subsequently not paid by them thus resulting in adjustment at the time of execution of the Agreement in question. No such aforesaid pre-existing facts are contained in the original pleadings which can be permitted to be elucidated by way of the proposed amendment.”
9. I have heard counsel for the parties and also perused the pleadings. The basic facts are not in dispute that the plaintiff has filed the present suit for partition, perpetual injunction and declaration. It is also not in dispute that as per the plaint, late Sh.Bakshi Ram Bajaj, father of the parties was the sole and exclusive owner of the suit property bearing no.6/50, WEA, Karol Bagh, Delhi. In fact the plaintiff has also placed on record the documents of title in the exclusive name of late Bakshi Ram Bajaj. After the plaintiff came across certain documents as stated by him in his application, the plaintiff filed an application under Order 7 Rule 14 CPC to bring the documents on record, the said application was dismissed by this court on 20.05.2010. During hearing of the said application, defendants had raised an argument that the documents sought to be produced by the plaintiff is only with a view to fill up the lacunae in the evidence. A stand was also taken by the defendant that the documents sought to be proved is totally contrary to the stand of the plaintiff in the plaint, wherein it was stated that late Bakshi Ram Bajaj was the absolute and exclusive owner of the property. The court had agreed with the arguments raised by learned counsel for the defendant that the plaintiff was trying to deviate from the original case. The operative portion of the order dated 20.05.2010 reads as under:
“6. I find myself in agreement with the contention of the learned counsel for the defendants that the plaintiffs’ by filing these documents are trying to deviate from their original case altogether which is that the suit property was individual property and not the HUF property. The original claim of the plaintiffs is that Bakshi Ram Bajaj was the exclusive and absolute owner of the suit property while as in the application an impression is sought to be created that the documents which are sought to be provided will show as if the suit property was owned by Bakshi Ram Bajaj and Sons (HUF). Therefore, this stand altogether seems to be for introduction of a new case by the plaintiff at this belated stage which cannot be permitted to be done. In addition to this the case is also listed for final hearing and it is only on account of death of one of the plaintiffs that steps have to be taken to bring his LRs on record and they have been brought on record. I feel that the case which was admittedly filed in the year 1997 is ripe for decision which cannot be put on the reverse gear by allowing the application of the plaintiffs. The application of the plaintiffs is totally without any merit and the same is accordingly dismissed.”
10. I find that what the plaintiff could not achieve directly he is now seeking to achieve indirectly by filing the present application for amendment of the plaint. Admittedly, order dated 20.05.2010 rejecting the application of the plaintiff under Order 7 Rule 14 CPC has attained finality and no appeal has been filed. I also find that the pleadings and evidence in this matter are complete and the matter is ripe for the final decision and is listed in the category of finals. The court cannot lose track of the fact that what really led to the amendment to Order 6 Rule 17 CPC is the fact that clever litigants were taking advantage of the language of the provision, as per which an application for amendment could be filed at any stage. With a view to discourage such litigants from taking undue advantage of the law, the legislature in its wisdom amended the provision. The present case is yet another example of how at the fag end of the case, the plaintiff has made the present application, seeking amendment of the plaint. In the case of Sumesh Singh (Supra), the Supreme Court has observed as under:
“9. It is true that ordinarily, an amendment of pleadings should not be allowed by reason whereof a party to the suit would resile from the admission made by him in the same proceedings at an earlier stage. This aspect of the matter has been considered in Gautam Sarup v. Leela Jetly and Ors. (2008)7SCC85 wherein it was held: “28. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other.”
Applying the settled law to the facts of this case, I am of the view that the plaintiff seeks to introduce by an amendment an entirely new case which would deprive the defendant of a right which has accrued in his favour due to lapse of time. The plaintiff had earlier filed an application under Order 7 Rule 14 CPC to bring the same very documents on record, which application was dismissed on 20.05.2010 holding that the plaintiff seeks to introduce a new case at a belated stage.
11. While it is trite law that delay alone cannot be a ground for rejection of an application for amendment of the pleadings, I find the plaintiff wishes to take a diametrically opposite stand as on the one hand in the plaint it has been stated that the suit property was a self-acquired property of late Bakshi Ram Bajaj. In paragraph 1 of the plaint, the plaintiff has clearly stated that Sh.Bakshi Ram Bajaj had purchased this property in a sum of Rs.73,000/- and is the absolute and exclusive owner of the property and it was purchased by him in the year 1962 against registration No.5075 entered in volume No.877 book No.4 registered with the office of Sublate Sh.Bakshi Ram Bajaj dated 29.06.1962 was also filed by the plaintiff and an averment was also made that he was paying ground rent at regular intervals to the DDA in whom the land vests. At this stage to allow the plaintiff to amend the plaint and to take a plea that this was not the self-acquired property of the late Sh.Bakshi Ram Bajaj but the property belonged to the partnership of which the plaintiff was a partner; is a stand which is absolutely contrary to the stand taken by the plaintiff in the plaint and would in fact amount to resiling from the admission made in the plaint. The plaintiff cannot be permitted to do so. While the purpose and the aim of the court is to shorten the litigation and to preserve/safeguard the rights of both the parties, but the court must also take into consideration that the amendment should not work non-obstante the rights of the defendant, and this would be the case if the present amendment is allowed. It is settled by catena of decisions of the Supreme Court, that rule of amendment is essentially the rule of justice and conscious and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. Taking into consideration the facts of this case and having also regard to the fact that the earlier application under Order 7 Rule 14 CPC was dismissed and that order has attained finality, I find the present application without any merit and the same is dismissed, leaving the parties to bear their own costs. G.S.SISTANI,J SEPTEMBER 21, 2011 ssn
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