Full Text
HIGH COURT OF DELHI
Date of order : 28th March, 2023
INDUPAL KAUR SEHGAL ..... Plaintiff
Through: Dr.R.S. Sasan, Advocate
Through: Mr.Sachin Chopra, Mr.Kamal Bansal, Ms.Astha Gupta and
Mr.Rahul Sharma, Advocates for 1 and 2 Ms.Sonali Jain, Advocate for D-3
CHANDRA DHARI SINGH, J (Oral)
I.A. No. 17404/2022 (under Order VI Rule 17 of Code of Civil
Procedure, 1908)
JUDGMENT
1. The instant application has been filed on behalf of the applicant/plaintiff under Order VI Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as the “CPC”) seeking the following reliefs: “a. A decree of partition be passed in favour of the plaintiff and against the defendant thereby declaring that the plaintiff and the defendants have 1/4th share each in the suit property i.e. property no. A-389, Defence Colony, New Delhi; b. A decree of possession of be passed in favour of the plaintiff and against the defendant thereby directing that the suit property i.e. property no. A-389, Defence Colony, New Delhi be partitioned by metes and bounds and the vacant and peaceful possession of the l/4th share in the suit property be given to the plaintiff; Or in the alternatively if the suit property cannot be divided amongst the plaintiff and defendants by metes and bounds, the same may be put to sale through an officer appointed by the court and l/4th share of the plaintiff be given to the plaintiff as per the decree; c. A decree of rendition of accounts be passed in favour of the plaintiff and against the defendant thereby directing that the defendant no. 1 & 2 to account for the rental income for the last 3 years from the 2 shops and first floor of the suit property and deposit the same either in the Hon'ble Court or to the plaintiffs account; or/and Direct the defendant no. 1 & 2 be to deposit the l/4th of the share of the rental income which they are pocketing currently i.e. after the filing of the present suit either in the Hon'ble Court or to the plaintiffs account; d. A decree of declaration be passed in favour of the plaintiff and against the defendants thereby declaring that the order/ judgment passed in suit no. 75/76 titled as Devindcr Pal Singh Rckhi & Ors vs Prehlad Singh Rckhi & Ors dated 28.05.1976 and decree passed in the said suit as nullity and a sham document being an act of fraud been played by the defendant no. 1 & 2 in collusion with the father of the parties on the grounds mentioned in the plaint; e. A decree of permanent injunction may be passed in favour of the plaintiff and against the defendants thereby directing the defendants not to alienate, sell, create any encumbrance, part with possession, or create any third party interest in the suit property i.e. property no. A-389, Defence Colony, New Delhi in respect of the share of the plaintiff. f. Any other relief, which this Hon'ble Court deems fit and proper under the facts and circumstances of the case, may kindly be passed in favour of the plaintiff, in the interest of justice.” SUBMISSIONS (Submissions on behalf of applicant/plaintiff)
2. Learned counsel appearing on behalf of the applicant/plaintiff submitted that the defendants No. 1 and 2 have raised a number of preliminary objections in their written statement, in addition to providing scant information about the litigation that their father, Late Sh. Prehlad Singh Rekhi, filed or was involved in, including the consent decree dated 28th May, 1976, in accordance with which the defendants Nos. 1 and 2 claim ownership of the first floor and second floor of the suit property. It is further submitted that the defendants No. 1 and 2 disclosed the purchase of two properties by the late father of the parties, i.e., Sh. Prehlad Singh Rekhi, in the names of the plaintiff and defendant No. 3, one at Shahdara and the other at Sangam Vihar, and it is further alleged that the applicant and defendant No. 3 have received their share of the suit property. All of these details and documentation have been purposefully and willfully withheld from the plaintiff by defendants No. 1 and 2.
3. It is submitted on behalf of the applicant/plaintiff that the applicant's father, Late Sh. Prehlad Singh Rekhi, had shared a home with defendant No. 1, and upon his passing, defendants Nos. 1 and 2 have control, ownership and custody of all papers relating to either real estate or legal procedures. It is further submitted that the aforementioned defendants have wrongly submitted documents that appear to rob the applicant of her share and suppressed records that reveal the entire story.
4. It is submitted on behalf of the applicant/plaintiff that by hiding the Shahdara related documents and the suit property, the defendants Nos. 1 and 2 are giving insufficient notice to the court and attempting to mislead it in order to usurp the suit property. It is further submitted that the clean ocean of justice is tainted by the events that have occurred in the aforementioned situation, raising major doubts that there is more going on than meets the eye. The applicant additionally asserts that she is attempting to find information about the legal disputes between the Shahdara and the suit property and that she reserves the right to file the relevant documents as soon as she does.
5. It is submitted on behalf of the applicant/plaintiff that the defendants No. 1 and 2 in this case deceived the Court in order to obtain the orders and judgement of 28th May, 1976. It is further submitted that the aforementioned order/judgment of 28th May, 1976 is being challenged in an effort to deny the plaintiff her legal right to her share, it is necessary for the applicant to amend the plaint and request this Court's indulgence at this stage to uphold the interests of justice. The defendants No. 1 and 2 did not provide an explanation for why they remained silent for so long and did not comply with the aforementioned decree or judgement of 28th May, 1976.
6. It is submitted on behalf of the applicant/plaintiff that the plaintiff was the real sister of the defendants Nos. 1 and 2, who not only attempted to disparage her married life but also acted in opposition to her legitimate interests by deceiving this Court in order to get the order or judgement of 28th May, 1976. Even if the plaintiff has demonstrated patience and restraint by refusing to become involved in any issue, the aforementioned defendants are still attempting to cause trouble by behaving in a way that goes above and beyond what is considered acceptable in society. Even if it is a fictitious document, the order or judgement dated 28th May, 1976, violates the applicant's or plaintiff's rights and must be fully decided upon, which is why the current application has been made.
7. It is submitted on behalf of the applicant/plaintiff that regarding the Shahdara property, it is claimed that the plaintiff made the purported purchase of Municipal No. 1/799-800 (the eastern section of the structure known as the Rehman Building) GT Road, Shahdara, Delhi, in 1972 when she was around 11 years old. It is further submitted that the plaintiff never received any information about who owned the aforementioned property from the plaintiff's late father. The plaintiff, however, could recollect that her late father as well as defendants nos. 1 and 2, used to attend court proceedings with respect to issues involving a property in Shahdara. Ultimately, the lawsuit was unsuccessful. Despite the fact that the defendants No. 1 and 2 are in possession of all the documents related to the litigation involving the Shahdara property, they have suppressed them and have not come with clean hands before this Court, allowing the plaintiff to obtain the report from the newspaper "Times of India" dated 5th December, 2005 only after great effort.
8. It is submitted on behalf of the applicant/plaintiff that the plaintiff has further learned through the documents filed by the defendants no. 1 and 2 that the plaintiff's father, acquired a 200-square-yard benami property out of Khasra no. 16/9 in Sangam Vihar, New Delhi, in the plaintiff's name. The plaintiff is unaware of the subject. Nonetheless, it is argued that neither the aforementioned transaction conveys ownership to the plaintiff nor does the plaintiff possess the aforementioned transaction. Evidently, the deceased father of the plaintiff, acquired assets in his own name and in the name of the third defendant.
9. It is submitted on behalf of the applicant/plaintiff that by way of the instant application, the applicant seeks to restrain her arguments only with respect to judgment/order dated 28th May, 1976 and seeks to amend the paragraph 16 of the her pleadings as follows: “16A. That there were six tenants at the ground floor of the suit property and they were not vacating the tenanted premises, therefore, to oust the tenants from the ground floor of the suit property, Late Sh. Prehlad Singh Rekhi in connivance with the defendant no. 1 & 2 filed a suit for permanent injunction, suit NO. 75/76titled as “Davinder Pal Singh Rekhi & Ors vs Prehlad Singh Rekhi & Ors”. It is noteworthy that Late Smt. Mohinder Kaur Rekhi, the mother of the parties to the present suit was impleaded as defendant no. 2. 16B. That though the defendant no. 1 & 2 filed only the photocopy of the order/judgment dated 28.05.1976 but intentionally and deliberately withheld the pleadings of the said suit no. 75/76, decree-sheet and the compromise deed on the basis of which the order/ judgment dated 28.05.1976 was passed. It is pertinent to mention here that the defendant no. 1 & 2 misrepresented the Hon'ble Court by pleading that the suit property which was allotted to Late Sh. Prehlad Singh Rekhi in the year 1960 a Naib Subedar (Retd.) by the Ministry of Rehabilitation on lease of 99 years as a Joint Hindu Family Property. 16C. That from the bare perusal of the order/judgment dated 28.05.1976, It is apparently clear that suit was filed in a preplanned manner. The defendant no.l & 2 herein managed to get a decree for partition in a suit for permanent injunction by paying the court fee of Rs. 13/-. It is purely a misuse of the process of law wherein the authority of the institution is being undermined by playing fraud upon the Hon'ble Court. It is not out of place to mention here that in the year 1976, the defendant no. 1 was aged about 20 years and defendant no. 2 was 17 years, a minor. Both the defendants were students and dependent upon Late Sh. Prehlad Singh Rekhi, their father. 16 D. That the suit was filed on 17.02.1976 and on 18.05.1976, the order/ judgment was passed. However, the defendant no. 1 & 2 did not act upon the said order/ judgment dated28.05.1976 till date as the suit property still stands in the name of the parents of the parties and even the House Tax is being paid on their name. 16 E. That the defendant no. 1 & 2 do not have the certified copies of the order/ judgment or the decree sheet. The acts of the defendant no. 1 & 2,who were the plaintiffs in the aforesaid suit are not only collusive but deceptive as fraud has been played upon the Hon'ble Court for procuring the said order/ judgment. Therefore, the order/judgment dated 28.05.1976 needs to be set aside and a decree of declaration be passed declaring the said order/ judgment, a sham document being an act of fraud and cohersive / strict action being taken against the defendant no. 1 & 2. 16 F. That Late Sh. Prehlad Singh Rekhi filed various litigations against the tenants for eviction of their tenancy which is apparent from the documents placed on record by the defendant no. 1 & 2 and in some of the litigations, the father of the plaintiff, Late Sh. Prehlad Singh Rekhi appeared in person and even the pleadings are hand written. All the documents pertaining to the litigations filed/defended by Late Sh. Prehlad Singh Rekhi were in his safe custody which are now in the custody and possession of the defendant no. 1 & 2.” (Submissions on behalf of the non-applicants/defendant Nos. 1 & 2)
10. Per contra, learned counsel appearing on behalf of the nonapplicants/defendants No. 1 & 2 submitted that the relief sought by the applicant vide the present application is barred by law as the same is hit by res judicata since, the suit property already stood partitioned vide decree dated 28th May, 1976.
11. It is submitted on behalf of the non-applicants/defendants no. 1 & 2 that the application under reply is subject to dismissal since the purported alterations as requested have no relevance to the current case and the plaint, if altered to include the alleged allegations, would constitute a divergence from the plaintiff's previous pleadings as included in her original plaint. In addition, the proposed modifications in the said paragraphs are superfluous, scandalous and vexatious. The plaintiff's request to include proposed revisions to the suit, which, even in the plaintiff's own estimation, would prejudice, embarrass and delay a fair hearing of the claim, is manifestly an abuse of court proceedings.
12. It is submitted on behalf of the non-applicants/defendants No. 1 & 2 that the proposed revisions aim to add new facts, pleadings, and prayers, so establishing an entirely new and incoherent case, as well as a new cause of action that is seemingly unnecessary to decide the fundamental issue in dispute, which relates to seeking division of the suit property. A review of the pleadings and documents submitted by the parties makes it clearly evident that the plaintiff was well aware of the facts that are now being attempted to be inserted by way of an amendment in a fundamentally fraudulent manner. The plaintiff intentionally and maliciously hid and withheld these facts from this Court. It is further submitted that the plaintiff, through the proposed amendments, is urgently attempting to strengthen her case after being presented with the genuine facts and documentation, which should not be allowed.
13. It is submitted on behalf of the non-applicants/defendants No. 1 & 2 that the plaintiff has been aware of the partition of the suit property, A- 389, Defence Colony, New Delhi-110024 measuring 28l.66 sq. yds., vide a Perpetual Lease Deed dated 21st November, 1960 duly registered on 28th November, 1960 before the Office of Sub-Registrar, New Delhi as Document No. 5761 in Additional Book No. I in Volume 598 on pages 63 to 65 since her marriage and was well persuaded. However, despite the same, the plaintiff has decided not to reveal that the entire suit property was partitioned in 1976 by a decree passed by this Court of Delhi, with the ground floor going to the plaintiff's parents, the first floor to Dr. DPS Rekhi, and the second floor to Kuldeep Singh Rekhi. The division was effected by court decree in 1976, since the finances of the joint family had been used to acquire Shahdara Property in 1972 in favour of the plaintiff and defendant No. 3 by that time. Moreover, while acting upon the aforementioned judicial partition of the suit property, the joint family funds were again utilised to purchase Sangam Vihar Property-1 in favour of defendant No. 3 and Sangam Vihar Property-2 in favour of the plaintiff. Thereafter, it was mutually agreed that the remaining ground floor of the suit property shall exclusively vest with the answering defendants, since all parties were given an equal share via immovable properties.
14. It is submitted on behalf non-applicants/defendants No. 1 & 2 that in accordance with the terms aforementioned, the parents of the parties purchased immovable properties in the names of their daughters, and as a result, the ground floor of the suit property was to be divided equally between the answering defendants and not the sisters who were given immovable properties that are Shahdara Property and Sangam Vihar Property-1 & Sangam Vihar Property-2. It is further submitted that these important facts and supporting documentation have been intentionally withheld by the plaintiff in an attempt to mislead and defraud this Court.
15. It is submitted on behalf of the non-applicant/defendants No. 1 & 2 that the instant application under reply seeks permission to amend the plaint, which should not be granted because the plaintiff had prior knowledge of the facts, which she is now seeking to introduce by way of amendment, and which she had intentionally concealed from this Court; the plaintiff had made certain admissions in the original suit, which she is now seeking to resile from in a fraudulent manner, and the plaintiff is seeking to introduce new and inconsistent facts and causes of action, which are not supported by the original plaint. Hence, the proposed revisions should not be accepted, and this application should be denied with costs. If the mala fide relief sought by the plaintiff is granted against the answering defendants, the answering defendants would suffer significant harm.
16. Heard the learned counsel for the parties and perused the record.
ANALYSIS
17. This Court in order to adjudicate upon the instant application finds it relevant to peruse the provision i.e. Order VI Rule 17 of the CPC, which is reproduced hereunder:
18. The Courts judge a matter based on its merits, or the facts, proof and evidence presented. If the merits of the case are not elaborated upon and disclosed entirely in the pleadings of a particular case, then the Court's ruling cannot be regarded complete justice since the merits were not fully described. It is also possible that the unmentioned merits were crucial to the outcome of the case. In light of this, the Courts are bestowed with the jurisdiction to authorise the amendment of pleadings. Thus, the notion of modifying pleadings introduced under Order VI Rule 17 of the CPC allows parties to modify/amend their pleadings at any point throughout the proceedings. The provision of this regulation states that after the trial has begun, no modification requests shall be accepted, unless the Court determines that, despite reasonable efforts, the party was unable to raise the issue before the trial began.
19. The purpose of the Courts is to try the matter on its merits and Order VI Rule 17 of the CPC is to give the Courts the authority to try the matter on its merits and to permit any revisions required for finding the true conflict. But, it should never result in an injustice to the opposing side.
20. The Courts exist to administer full and complete justice to the parties, which is only possible when the parties' true dispute is heard. Thus, they have the authority to approve revisions to pleadings. The objective is to discover the true dispute between the parties, not to penalise them for their faults or carelessness.
21. It is settled law that the grant of application for amendment is subject to certain conditions, firstly, when the nature of it is changed by allowing amendment, secondly, when the amendment introduces a new cause of action and intends to prejudice the opposing party and thirdly, when allowing amendment application defeats the statute of limitations. The said principles have been laid down by the Hon’ble Supreme Court in its judgement titled as Rajkumar Guruwara v. S.K. Sarwagi & Co. (P) Ltd. reported as (2008) 14 SCC 364.
22. Furthermore, the Hon’ble Supreme Court in its judgment titled as N.C. Bansal v. U.P. Financial Corporation reported as (2018) 2 SCC 347 in light of the Order VI Rule 17 held that the Courts should be liberal in allowing proposed amendments; (i) when the suit is still at the initial stage, that is, when the trial has not yet begun; (ii) when the proposed amendment would not change the nature of the cause of action; and (iii) when the application is not filed at a belated stage. Regarding the granted application under Order VII Rule 14, the following may be considered: (i) when the trial is at the preliminary stage and has not yet initiated; and (ii) where the application is not submitted until a later stage.
23. This Court finds force in the arguments of the nonapplicant/defendant No. 2 that the amendment sought by the plaintiff is misplaced since by way of the instant application, the applicant seeks to change the very nature of the instant suit. The same has been settled by the Hon’ble Supreme Court in its judgment titled as Asian Hotels (North) Ltd. v. Alok Kumar Lodha reported as (2022) 8 SCC 145. The relevant para of the said judgment is reproduced hereunder:
24. In view of the foregoing paragraphs and judgments cited above, this Court is of view that the instant application filed by the applicant/ plaintiff is nothing but a gross misuse of process of law and shall be dismissed.
25. Accordingly, the present application being devoid of any merit is dismissed. CS(OS) 53/2021 and I.A. No. 1150/2021 List before the Joint Registrar on 20th April, 2023. List before the Court on 25th September, 2023.