Full Text
HIGH COURT OF DELHI
JUDGMENT
SMT MEENAL ARORA .....Plaintiff
Through: Mr Neeraj Yadav, Advocate.
Through: Mr Sameer Srivastava and Ms Yashika Varshney, Advocates.
1. The present application has been preferred by the petitioner seeking amendment of the plaint. I.A. 6038/2023 (by the plaintiff under Order VI Rule 17 read with Section 151 CPC)
2. Originally, the suit was instituted by the plaintiff seeking partition, permanent and mandatory injunction, as well as, rendition of accounts.
3. The case of the plaintiff is premised on the fact that the plaintiff and the defendant are real sister and brother respectively. The dispute is with regard to immovable, as well as, moveable estate left behind by their father Late Shri S. P. Uppal, who expired on 19.11.2021.
4. It is the case of the plaintiff and so contended by learned counsel for the plaintiff that Late Shri S. P. Uppal has left behind the Will dated 16.06.2011 and by virtue of the said Will Late Shri S. P. Uppal had bequeathed the entire immovable property being House No.13, situated at State Bank Nagar, Paschim Vihar, New Delhi admeasuring 187 sq. yards. (hereinafter ‘suit property’) in favour of his wife viz. Late Smt. Usha Uppal and in the event she pre-deceased him, in favour of the plaintiff to the extent of 35% share and to the extent of remaining 65%, in favour of the defendant.
5. Learned counsel for the plaintiff submits that the said Will is silent insofar as moveable properties are concerned, therefore, the plaintiff is entitled to 50% share in the moveable assets.
6. He further submits that the present application seeking amendment of the plaint is necessitated as the defendant in the written statement filed on 04.05.2022 has set up another registered Will dated 26.12.2016 allegedly executed by their Late father, claiming that by virtue of said Will the entire suit property has been bequeathed in favour of the defendant. He submits that insofar as moveable assets are concerned, the said Will is also silent as to its devolution.
7. Learned counsel submits that by way of amendment, the plaintiff is seeking to challenge the subsequent registered Will set up by the defendant and, accordingly, a prayer seeking declaration of the said Will as null and void is sought to be inserted.
8. He further submits that apart from the prayer which is sought to be amended, certain factual foundation is also sought to be laid down by inserting paragraphs 17A to 17M, as well as, paragraph 18 amending the cause of action.
9. It is his submission that the suit is at the stage of completion of pleadings and the amendment being sought has become imperative for the reason that the alleged subsequent Will dated 26.12.2016 has seen light of the day for the first time only when the same was disclosed by the defendant by filing the written statement. Therefore, he urges the Court to allow the present application.
10. In support of his submission, the learned counsel for the plaintiff has placed reliance on the decision of the High Court of Orissa in Sk. Zahural Islam vs. Tanweer Jahan Begum and Others., AIR 2000 Ori 140, as well as on decision of this Court in Sanjay Bhargava vs. Seema Bhargava, (2014) 212 DLT 632.
11. Per contra, the learned counsel for the defendant submits that the prayer which is sought to be inserted by way of an amendment will change the entire nature of the suit, as well as, the claim now being sought is also barred by limitation. In support of his contention, learned counsel for the defendant has placed reliance on the decision of Hon’ble Supreme Court in Basavaraj vs. Indira & Ors., (2024) 3 SCC 705, more particularly, on paras 13 and 14 thereof which reads thus:
12. I have heard the learned counsel for the plaintiff, as well as, the learned counsel for the defendant and have perused the material on record.
13. It is not in dispute that the subsequent Will dated 26.12.2016 has been set up by the defendant for the first time in his written statement dated 04.05.2022. It is the case of the plaintiff that the existence of the said Will was not known to the plaintiff prior to the filing of the written statement. It is on record that the written statement was filed on 04.05.2022 and the present application being IA No. 6038/2023 under Order VI Rule 17 CPC came to be filed on 27.03.2023. Prima facie, the claim of declaration qua the subsequent Will is within the period of limitation of three years if counted from the date when the factum of existence of the subsequent Will came to light for the very first time on filing of the written statement by the defendant.
14. Insofar as the contention that the amendment, if allowed, will change the nature of suit, suffice it to note that though by way of amendment new relief in the form of declaration is being sought to be added but the subject matter of the suit remains essentially the same. This is for the reason that the controversy surrounding the parties shall remain same inasmuch as what is to be determined is whether the plaintiff will have a share in the suit property on the basis of Will dated 16.06.2011 propounded by him which will entitle him to claim partition, or the defendant will be entitled to the entire suit property of their deceased father on the basis of a subsequent Will dated 26.12.2016 set up by him in the written statement.
15. I am of the view that in light of the stand taken by the defendant in the written statement that there exists another Will and by virtue of the same, the entire suit property has been bequeathed to him, the original relief sought by the plaintiff has become inappropriate, especially when the subsequent Will set up by the defendant, oust the plaintiff from inheriting the suit property. Thus, it has become imperative for the plaintiff to challenge the subsequent Will which came to his knowledge only after filing of the written statement.
16. It is also apposite to note here that the instant suit is at the initial stage and no prejudice will be caused to the defendant if the plaint is allowed to be amended. Moreover, it has also not been explained by the learned counsel for the defendant as to what prejudice will be caused to him if the amendment is allowed at the initial stage of the suit.
17. It is a trite law as noted by the Hon’ble Supreme Court in Laxmi & Co. vs. Dr Anant R. Deshpande & Anr., AIR 1973 SC 171 that where subsequent to the institution of the suit events happen which give the plaintiff a new cause of action for the relief claimed or the right to a new or additional relief, he will, as a general rule, be allowed to amend the plaint by moulding it in an appropriate manner.
18. I am also supported in my view by the decision of this Court in Sanjay Bhargava (supra) wherein a Coordinate Bench of this Court while dealing with somewhat similar situation wherein the amendment was sought to challenge three documents which had come to the knowledge of the plaintiff therein subsequent to the filing of the written statement has held as under:
considered while deciding the application for amendment. Thus, the same is liable to be allowed if a valid case for amendment is made out in order to decide the real dispute between the parties. It is not denied by the defendant that the separate suit for cancellation of documents is maintainable in law. The plaintiff claims that he is not signatory to the said documents. The plaintiff has made a specific statement that he was not aware about the said documents otherwise, he would have mentioned the same in the plaint and sought the same additional relief which is now sought to be incorporated by virtue of amendment. Therefore, considering the overall facts and circumstances in the present case and in order to avoid multiplicity of the proceedings and to save the time of Court and costs of the parties, the prayer made in the application is allowed, subject to the cost of Rs.10,000/- which shall be paid by the plaintiff to the defendants within two weeks. Amended written statement be filed within four weeks. Replication, if any, be filed within two weeks thereafter”
19. It is also settled law that while considering the application for amendment, the courts have very wide discretion in the matter of amendment of pleadings and one of the conditions which must be satisfied before amendment can be allowed by the court is whether such amendment is necessary for determination of the real question in controversy.
20. In the present case, I am satisfied that the amendment sought by the plaintiff is necessary for determination of the real question in controversy inasmuch as the dispute in the present suit is with regard to the inheritance of the estate left behind by the late father of the parties and the same can be determined by examining the two Wills – one set up by the plaintiff in the plaint and another propounded by the defendant in his written statement. Hence, a prayer sought to be inserted in the amended plaint to the effect that the Will dated 26.12.2016 set up by the defendant be declared as null and void and no nest in law, will surely not change the nature of the suit but would rather, avoid multiplicity of the proceedings.
21. At this point, reference may advantageously be made to a decision of Coordinate Bench of this Court in Beena Sharma & Anr. vs. Sarla Paul & Ors.2016 SCC OnLine Del 1481, wherein this court when confronted with the question as to whether amendment can be allowed to seek declaration that the Will discovered subsequent to the filing of the written statement by the defendants therein is null and void, held as under:
a challenge to the Will and the gift deed at the time of filing of the plaint, provided the same were in her possession. The amendments sought would not change the nature of case as they relate to the same cause of action relating to the suit property. It needs to be determined in the trial, whether the Will is false and forged or genuine. That apart, the plea of limitation as urged by Mr. Yadav also needs to be decided in the trial being a question of fact given the nature of the pleadings.
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23. There is no dispute on the proposition of law laid down by the Supreme Court. What is important is, whether in the facts, the application under Order 6 Rule 17 CPC is justified. As I have held above, the same is justified.” (emphasis supplied)
22. Insofar as the decision relied upon by the learned counsel for the defendant in Basavaraj (supra) is concerned, the same does not lay down any straitjacket proposition as sought to be contended by the learned counsel for the defendant that relief of declaration cannot be allowed to be inserted by way of an amendment in a suit in which original relief sought is for partition. Even otherwise, in the aforesaid case, the Hon’ble Supreme Court has inter alia noted that it was not even the pleaded case of the respondent nos.[1] and 2 therein before the Trial Court in the application for amendment that despite due diligence the relief prayed for by way of amendment could not be sought and what was pleaded was an oversight. The court further observed that oversight cannot be accepted as a ground to allow any amendment in the pleadings at the fag end of the trial especially when the facts were within the knowledge of respondent nos.[1] and 2. Whereas, in the present case, the fact situation is completely different as the instant case is at preliminary stage and the factum of existence of the subsequent Will undisputedly came to light only after the filing of written statement by the defendant.
23. In view of the aforesaid discussion, this Court is of the view that the instant application deserves to be allowed. Ordered accordingly.
24. The application is disposed of.
25. The amended plaint which is filed along with the I.A. 6038/2023 is taken on record.
26. Defendant may file reply to the amended plaint within a period of four weeks. Rejoinder thereto, if any, be filed within a period of four weeks thereafter.
27. List before the learned Joint Registrar for completion of pleadings, admission/denial of documents and marking of exhibits on 13.09.2024, the date already fixed.
28. List before Court on 14.10.2024. I.A. 15959/2021 (by the plaintiff under Order XXXIX Rule 1 and 2 read with Section 151 CPC) I.A. 3929/2022 (by the defendant under Order XXXIX Rule 4 read with Section 151 CPC)
29. List for hearing on 14.10.2024. I.A. 6040/2023 (by the plaintiff under Order XII Rule 6 read with Section 151 CPC) VIKAS MAHAJAN, J JULY 26, 2024