Sh Dadaso Jagtap and Anr. v. Smt Satwant Kaur Sarna and Ors.

1. This Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908[1] is preferred by the petitioners, who are proposed defendant no. 3 & 4, in a suit instituted by the respondent No.1/plaintiff bearing CS DJ No. 11307/2016 titled as ‘Satwant Kaur v. Ramesh Bhardwaj & Ors.’, thereby assailing the impugned order dated 24.11.2021 passed by the learned Additional District Judge-02, Central District, Delhi[2], whereby the application under Order VI Rule 17 of the CPC filed by the respondent No. 1/plaintiff, was allowed. 1 CPC Trial Court

2. Having heard the learned counsels for the parties and upon perusal of the record, this Court unhesitatingly finds that the impugned order cannot be sustained in law.

3. Shorn of unnecessary details, the case of the respondent NO. 1/plaintiff is that she had filed a criminal complaint under Section 138 of the Negotiable Instrument Act, 18813, against the petitioners/defendants, who were unable to make the payments. However, an agreement dated 16.09.2008 was executed, wherein defendant no. 14 agreed to sell portion of the property in question comprising of ground floor and mezzanine floor to her.

4. Accordingly, while she agreed to give up her claim insofar as the second floor of the property was concerned, she allowed the defendant no. 1 to occupy the same for some time. To this effect, an agreement dated 08.02.2011 was executed between the parties. Eventually, after several parleys, a sale deed dated 14.03.2011 was executed & registered, and the possession of the ground floor as well as mezzanine floor besides second floor was given to her.

5. The grievance of the respondent No. 1/plaintiff was that in August 2013, she came to know that defendant no.1/Ramesh Bhardwaj, had illegally and without her consent sold the entire second floor and third floor with roof rights up to sky to defendant No.2 on 04.10.2011 by means of registered sale deed dated 04.10.2011. Accordingly, she filed a suit seeking relief of possession in her favour with regard to the second-floor portion with roof rights up to the sky, NI Act Sh. Ramesh Bhardwaj in CS DJ No. 11307/2016 damages for wrongful use and occupation of the property by the defendants, and interest, etc.

6. It appears that defendant No.1/Ramesh Bhardwaj and other defendants contested the matter and denied respondent No. 1/plaintiff assertion’s that she was sold anything beyond the ground floor and mezzanine floor, and in this respect, inter alia, relied on sale documents dated 01.11.2010. The said reply filed by the defendants in the suit triggered this application under Order VI Rule 17 of the CPC, whereby substantial amendments are sought so as to plead, in particular, that the sentence ‘first floor with terrace rights over and above’ in the GPA[5] deed dated 01.11.2010 in favour of defendant No.5/Goraknath Patil, should be deleted and replaced with the correct words ‘first floor with terrace rights over and above’. An additional relief vide 19(f) by way of the proposed amendment is sought for rectification of the GPA dated 01.11.2010.

7. It is pertinent to mention here that in the main plaint, the respondent No. 1/plaintiff has sought reliefs only against defendant No. 1 namely Ramesh Bhardwaj, and defendant No.2, agitating that the sale deed dated 04.10.2011 is not binding upon her. However, it appears that defendant No.2 has sold the second-floor portion to defendant No. 5/Goraknath Patil by means of an agreement to sell dated 01.11.2010. It also appears that in the agreement to sell and other documents dated 01.11.2010, it is recorded that the respondent No. 1/plaintiff has agreed to sell the first floor with terrace rights over and above to defendant No.5, which is claimed to be false.

8. In short, apart from the aforesaid amendment, the petitioners seek to implead defendants No. 3 and 4, who are now in use and occupation of the built-up portion of the first floor.

9. Ex facie, the proposed amendment being sought by the respondent No.1/plaintiff would change the entire nature and character of the subject matter before the learned Trial Court. At the cost of repetition, the initial reliefs were only against defendant Nos.[1] and 2, and now the respondent No. 1/plaintiff seeks to enlarge the scope of the suit by seeking reliefs in respect of sale documents executed by her dated 01.11.2010 in favour of defendant No.5/Goraknath Patil, which constitutes an entirely new cause of action.

10. At this juncture, it would be apposite to re-produce the reasons that prevailed in the mind of the learned Trial court in allowing the application, which go as under: “9. Reasons for order: 9.[1] The plaintiff herself is a party to the GPA dated 01.11.2010. It may be argued that she shall be presumed to have knowledge of the alleged fraud from the date of execution itself. However, if language of Section 26 of the Specific Performance Act is seen, it says that the parties or their representatives in interest (to the instrument) may sue /for rectification of the instrument. This implies that the parties to the instrument can also be misled or misguided or defraud regarding the contents of the documents which they signed/executed. 9.[2] In the present case, in view of the contentions of the parties, moot issue is whether the relief of rectification sought by the plaintiff, in the proposed amendment in plaint is barred by limitation. In this regard, the non-applicants/defendants no. 3 and 4 have argued that limitation would start from the date of instrument. On the other hand, Ld. Counsel for the plaintiff/applicant stated that knowledge about the said fraud came when the defendants (SIC) moved application under Order 7 rule 11 CPC. The General Power of Attorney application of defendants no. 3 and 4 under Order 7 rule 11 CPC (in the title of the application inadvertently Order 17 Rule 11 CPC is mentioned) was filed. In the said application in para no. 11 it is stated that the plaintiff has not sought any declaration with regard to the GPA set dated 01.11.2010. 9.[3] The knowledge of the applicant/plaintiff about the alleged fraud in the GPA set dated 01.11.2010 is a question of fact. The burden will be upon the plaintiff to prove that she got knowledge of the alleged fraud in the GPA set dated 01.11.2010 only upon the filing of the said application under Order 7 rule 11 CPC, Further. plaintiff will be required to prove that she filed the application for the amendment of the plaint within limitation period from the date of her alleged knowledge. Whether the relief of rectification is barred by limitation or not is a question which can be decided only after the parties have led their evidence on this point. 9.[4] In the plaint, the plaintiff has sought possession of the second floor of the suit property (i.e. floor constructed on the roof of the first floor of the suit property. ). In view of this, it is necessary to be decided whether in the GPA set dated 01.11.2010, the plaintiff actually sold the roof rights over the first floor of the suit property no. 94, DB block, Jawahar Nagar, Delhi. As such the proposed amendment is necessary for effective adjudication of the present suit.

10. In view of the above, the application of the plaintiff under Order 6 rule 17 CPC is allowed. The proposed amended plaint already filed by the plaintiff is taken on record.”

11. Unhesitatingly, the aforesaid reasons given by the learned Trial Court are absolutely flawed and cannot be sustained in law. At the cost of repetition, the cause of action espoused and the reliefs originally in the plaint are only directed against defendants No.1 and 2, with the substratum of the cause of action being that the defendant No.1 had no right over first floor portion and above. What now the respondent No.1/plaintiff seeks is rectification of the GPA dated 01.11.2010, which she executed in favor of defendant No.5/ Goraknath Patil. This would certainly impact the legal rights of the petitioners, who have now bought a portion of the property. The proposed amendment is, therefore, an entirely different cause of action.

12. For the foregoing reasons, the present revision petition is allowed, and the impugned order dated 24.11.2021 is hereby set aside. The learned Trial Court shall proceed with the suit as originally framed against defendants No. 1 and 2. The respondent No. 1/plaintiff shall be at liberty to institute appropriate proceedings in respect of her cause of action against other respondents/defendants in accordance with the law.

13. The present revision petition along with the pending application stands disposed of. Nothing contained herein shall tantamount to an expression of opinion on the merits of the case.

DHARMESH SHARMA, J. JULY 16, 2024