Sh. Giriraj v. Sh. Rishipal and Anr.

16. It is submitted that the petitioner has no locus standi to file the suit for partition as the partition had already taken long place time ago in the year 1978, vide a compromise deed dated 27th August 1978.

17. It is submitted that the respondents had filed their written statement and also an application under Order VII Rule 11 of the CPC, wherein they had stated that in the year 1978, a Civil Suit bearing No. 187/1978, titled Ram Swarup and Ors. V. Lal Chand and Ors., was filed and the said suit was settled vide compromise decree dated 10th

18. It is also submitted that since the compromise was entered into by the father of the petitioner with his brothers, the petitioner had no right in the Suit Property in view of the said compromise. There is no cause of action in favour of the petitioner to proceed with the suit seeking partition.

19. It is submitted that the Court below has rightly rejected the application under Order VI Rule 17 of the CPC, filed by the petitioner in view of the compromise decree dated 10th October 1978, passed in the Civil Suit bearing No. 187/1978, wherein, the consent decree was passed. Hence, before this Court the petitioner has no ground to challenge the impugned order.

20. In view of the foregoing submissions, it is submitted that this Court upholds the impugned order dated 28th September 2022, passed by the learned ADJ, Saket Court, South-East District, New Delhi, in Civil Suit bearing No. 570/2016, thereby, dismissing the present petition.

21. Heard the learned counsel appearing on behalf of the parties and perused the record.

22. Keeping in view the arguments advanced by the parties, the following issue has been framed for adjudication by this Court: Whether there is any error on the part of the learned Trial Court in passing the impugned order, thereby, rejecting the application of the petitioner under Order VI Rule 17 of the CPC?

23. Before discussing the settled law, it is necessary to discuss the facts of the present petition.

24. The petitioner had filed a Civil Suit bearing No. 570/2016, before the learned Trial Court for partition and permanent injunction of the Suit Property. In the said suit, the respondents had filed their written statement and also an application under Order VII Rule 11 of the CPC. The ground taken by the respondent for dismissal of the plaint filed by the petitioner was that partition had already been taken place in the year 1978, in accordance with a compromise deed dated 27th August 1978, executed between the petitioner‟s father and the respondents‟ fathers. It has been contended to the effect by the respondents that the said compromise deed was recorded and given effect to by the Sub-Judge in Civil Suit bearing No. 187/1978, vide consent decree dated 10th

25. The petitioner thereafter had filed an application under Order VI Rule 17 of the CPC, thereby, seeking amendment to the plaint filed by him. In the said application the petitioner had sought deletion of the prayer seeking partition of the property bearing No. 134, as the same has been purchased by the petitioner and further sought challenge to the compromise deed dated 27th August 1978, and the consent decree dated 10th October 1978, stating that the same is illegal and based upon fraud as the father of the petitioner never participated in any such settlement or compromise. He further alleged that no civil suit was filed by the petitioner‟s father and that someone had impersonated his father for the sole purpose of benefitting with regard to the property in lis.

26. The learned Trial Court dismissed the application of the petitioner under Order VI Rule 17 of the CPC, vide order dated 28th September 2022, and observed as follows: “10. Father of plaintiff-Sh. Rati Ram had died much prior to the filing of the present suit which was filed in the year 2015. The plaintiff has filed the present suit on the basis of inheritance stating that it is an ancestral property. However, defendants have filed certified copy of the said suit in the court. th Vide decree dt 10.10.1978, which was entered into between the father of the parties, that suit was compromised and properties were divided interse. A party who alleges a fact, must prove it. It is the duty of the Court to give sanctity of the judgment passed by other Courts of this country. Till the time the father of plaintiff was alive, he never raised any issue with respect to the suit property. It is the claim of the plaintiff that he was not aware about the Said compromise, which was entered into between his father and his brothers. However, only a bare statement is not Sufficient for this court to disbelieve the Statement/compromise decree which was entered into between the parties on 10.10.1978.

11. It is mentioned in the application u/o 6 Rule 17 GPC that their father never appeared before the said court and it seems that some other person may have impersonated him and may have signed on his behalf. This contention of plaintiff does not inspire any confidence. Needless to say the fact that compromise was arrived at between the parties before the said court, is further fortified by the fact that a compromise decree was also acted upon by the parties.

12. The parties are already in possession of their respective shares in accordance with the compromise decree dt 10.10.1978. None of the brothers who were party to it (LR of one brother was party) ever challenged it during their lifetime. Now their descendants challenged it thereby saying that their fathers/grandfathers never signed it. Mere bare averments are not sufficient to re-open the settled disputes, especially/settled in Courts. It is not stated by plaintiff what proof he has to substantiate his claim except bare oral averment. If such compromises are permitted to be re-opened on the basis of such baseless oral averments of descendants of the parties, there shall be no end to litigation. This compromise was never challenged by father of plaintiff during his life time. He acted upon it and parties took possession of their respective shares in accordance with the compromise of 1978 as well.

13. There is no ground/basis to allow this application u/o 6 Rule 17 CPC. The same is hereby dismissed.”

27. The learned Trial Court while dismissing the application of the petitioner under Order VI Rule 17 of the CPC, held that father of the petitioner died much prior to the filing of the present suit. The ground raised by the petitioner in his suit was with regard to the Suit Property being an ancestral property and the petitioner having right of inheritance over it. However, the respondents have relied upon a decree dated 10th October 1978, in Civil Suit bearing No. 187/1978. The said decree dated 10th October 1978, as entered into between the father of the parties and in pursuance to the same, the suit was settled and the properties mentioned in the said deed were divided inter se.

28. The learned Trial Court observed that the onus of proving the compromise deed as invalid lies upon the petitioner and it is the duty of the Court to give sanctity to the judgment passed by the other Courts. It was observed by the Court below that the father of the petitioner in his lifetime never raised any objection with regard to the abovementioned compromise deed. The petitioner‟s claim that he was unaware of the existence of any such deed is not sustainable. Such bare statement cannot be sustained in a suit without any sufficient material on record.

29. The learned Trial Court further declined to entertain the contention of the petitioner, whereby, it was alleged by the petitioner that his father neither appeared before the Court nor did he participate in any such compromise. This contention of the petitioner did not inspire the confidence of the learned Trial Court due to the fact that compromise deed dated 27th August 1978, had already been acted upon by the parties giving effect to the partition of the Suit Property.

30. It was observed by the learned Court below that the parties are already in possession of their respective shares in accordance with the said compromise decree dated 10th October 1978. The same was never challenged by any of the parties and challenge to the same by the descendants of the deceased signatories to the deed, at this point of time, is not sufficient to re-open the settled disputes, especially the one settled in the Court. Further, due to the absence of any substantial proof in regard to the challenge to the deed dated 27th August 1978, the learned Trial Court dismissed the petitioner‟s application under Order VI Rule 17 of the CPC.

31. Before proceeding to test the validity of the impugned order, it would be appropriate to refer to the nature, scope and object of the law settled by the Courts. It is necessary to reproduce the relevant provision of law under which the application filed by the petitioner was dismissed by the learned Trial Court and is under challenge before this Court. The same is mentioned herein: “Order VI – Pleadings generally [17. Amendment of pleadings. – The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

32. Order VI Rule 17 of the CPC, declares that the Court may, at any stage of the proceedings allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also provides that such amendment should be necessary for the purpose of determining the real questions of controversy between the parties. The aforesaid power of the Court however is subject to a rider put by proviso to Order VI Rule 17 of the CPC, which provides that no application for amendment should be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter for which amendment is sought, before the commencement of the trial. In Salem Advocate Bar Association, Tamil Nadu V. Union of India & Ors., (2005) 6 SCC 344, the Hon‟ble Supreme Court has held that the object of adding the proviso is to prevent frivolous applications which are filed to delay the trial.

33. The purpose of Order VI Rule 17 of the CPC, is that all the substantial facts and necessary particulars must be stated in the pleadings. The object of the rule states that the Court should evaluate all the merits of the matter presented before it and therefore, consider permitting any required amendments to accurately determine the primary issue in dispute between the parties in question.

34. Ultimately, the purpose of the Courts is to administer justice between the parties involved, rather than to inflict punishment upon them. The Courts are empowered to allow amendments or modifications to the pleadings, in order to serve the broad objective of ensuring comprehensive adjudication for all the parties. The provision of Order VI Rule 17 of the CPC serves the purpose of advancing the objectives of justice rather than defeating them.

35. The Hon‟ble Supreme Court in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, 1957 SCR 595, discussed the tests laid down for allowing amendment of a plaint. It observed as follows:

(iii) Usha Devi v. Rijwan Ahamd [(2008) 3 SCC 717: (2008) 1

SCC (Civ) 922], at para 13: (SCC p. 722)

(iv) Rajesh Kumar Aggarwal v. K.K. Modi [(2006) 4 SCC 385], at paras 15 & 16: (SCC pp. 392-93)

(v) Revajeetu Builders and Developers v. Narayanaswamy and

Sons [(2009) 10 SCC 84: (2009) 4 SCC (Civ) 37], at para 63: (SCC p. 102)

38. The test before this Court is to determine whether the amendment as sought by the petitioner before the learned Trial Court was necessary to determine the real issue in controversy between the parties. If the answer to the same is in negative, then whether the prayer for amendment deserves to be rejected for any reason needs to be considered.

39. In Vijay Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897, a Coordinate Bench of this Court observed effect of the decision of the Court in an application under the said provision. It observed as follows:

40. In light of the abovementioned judgments, it is clear that the purpose and object of the provision is to either allow a party to alter or amend his pleadings in such a manner and on such terms as may be just. The amendment being sought by a party under the provision must not be claimed as a matter of right. It is a duty of the Court to not adopt a hyper technical approach while deciding any such application. The same was also observed in State of M.P. v. Union of India (Supra).

41. The substantive material, that the petitioner was required to prove, to entitle him to the relief sought with regard to the challenge to the compromise deed was nowhere stated in its application under Order VI Rule 17 of the CPC. Due to the same reason, the learned Trial Court rightly dismissed the petitioner‟s application.

42. The relief which were sought by the petitioner in his application before the learned Trial Court was determined to be an already dealt and adjudicated issue in Civil Suit bearing No. 187/1978, between the fathers of the parties. The compromise deed dated 27th August 1978, was never challenged until the respondents placed their reliance on it. The challenge to the said deed needs to be substantiated with a solid evidence as the same is a part of an already concluded judicial proceeding.

43. In light of the tests laid down by the Hon‟ble Supreme Court, this Court is of the view that the main dispute between the parties is with regard to the partition of the Suit Property and that the petitioner had sought amendment to his plaint so that he can challenge the said compromise deed which according to the respondents had already given effect to the partition of the Suit Property.

44. This Court while following the tests laid down by the Hon‟ble Supreme Court in a catena of judgments founds that the amendments being sought by the petitioner are not per se necessary as, even without the said amendments, the petitioner will still be entitled to claim the relief of partition in regard to the said property. On the other hand, if the amendment being sought is allowed, the same would place the respondents at disadvantage.

45. Since the learned Trial Court has dealt with the issue in accordance with the law. This Court is of the view that there is no infirmity in the impugned order of the learned Trial Court.

46. At this juncture, this Court deems it appropriate to discuss the scope of revisional powers of the High Court. The Hon‟ble Supreme Court has detailed the scope of such powers of the High Court under Section 115 of the CPC, in the matter of D.L.F. Housing & Construction Co. (P) Ltd. v. Sarup Singh, (1969) 3 SCC 807, wherein it was observed as under:

47. In view of the aforementioned judgment, it becomes evident that this Court has limited powers which can be exercised under Section 115 of the CPC. It is also prudent to apply the ratio observed in the judgments of the Hon‟ble Supreme Court, by way of which, this Court finds that not every order of the learned Trial Court can be regarded as an order that can be put under the ambit of revisional jurisdiction of the High Court.

48. Furthermore, as per the judgment of the Hon‟ble Supreme Court in Baldevdas Shivlal v. Filmistan Distributors (India) (P) Ltd., (1969) 2 SCC 201, the scope of Section 115 of the CPC only includes questions of errors of jurisdiction, the irregular exercise, or non-exercise of it, or the illegal assumption of it. The mere fact that the decision of the Trial Court is erroneous due to a question of fact or of law does not amount to illegality or material irregularity. It embarks a peculiar kind of limitation that needs to be followed in its true letter and spirit. The High Court shall not interfere merely, because the Court below has wrongly decided a particular application in a suit being not maintainable.

49. Since, the petitioner is unable to make out his case wherein it is shown that the learned Trial Court has not exercised its jurisdiction in accordance with the law. Therefore, this Court is of the view that no case of revision as defined under Section 115 of the CPC is made out as, no such cause exists wherein the learned Trial Court has either acted illegally or with material irregularity in the exercise of its jurisdiction.

50. Accordingly, the issue framed has been decided.

51. On perusal of the findings of the learned Trial Court, this Court is of the view that there is nothing in the impugned order which suggests that there is any error of jurisdiction or irregularity in exercise of the jurisdiction of the Court below which goes to the root of the matter and invites the intervention of this Court under Section 115 of the CPC.

52. Therefore, this Court is of the view that the learned Trial Court has not committed any error of law that can be the subject matter in the instant revision petition.

53. In view of the above discussion of facts and law, this Court finds no error in the impugned order 28th September 2022, passed by the learned ADJ, Saket Court, South-East District, New Delhi, in Civil Suit bearing NO. 570/2016.

54. Based on the aforementioned arguments, this revision petition is accordingly dismissed.

55. Pending applications, if any, also stand dismissed.

56. The order be uploaded on the website forthwith.