Full Text
HIGH COURT OF DELHI
Date of Decision: 24th March, 2023
SURENDRA LAL MAHENDRA ..... Plaintiff
Through: Mr.Saurabh D. Karan Singh, Adv.
Through: Mr.Bhagat Singh, Adv. for D-1.
JUDGMENT
1. This application has been filed by the plaintiff seeking to amend the plaint by adding a challenge to the Conveyance Deed dated 03.06.2013 executed by the Delhi Development Authority (in short, ‘DDA’) in favour of the defendant no.1 as a sole proprietor of the Industrial Plastics Company (which the plaintiff claims was the sole proprietorship of the father of the parties), conveying the industrial plot bearing no. C- 256, Rewari Lane, Industrial Area, Phase II, New Delhi - 110064 in favour of the defendant no.1.
2. The plaintiff claims that the execution of the Conveyance Deed came to the knowledge of the plaintiff only on the written statement being filed by the defendant no.1.
3. The learned counsel for the plaintiff submits that, in fact, the DDA by its letter dated 06.08.2010 addressed to the defendant no.2, had stated as under: “Sub: Mutation of lease deed rights in r/o Industrial plot No. C-256, Rewari Line lndl. Area Ph-II, New Delhi. Dear Sir/Madam. Keeping in view the claims and the counter claims and also the disputes amongst the legal heirs of the deceased lessee namely, Sh. H.L. Mahendra, who expired intestate on 17/1/82, I am directed to advise you to get a declaratory decision from a court of competent jurisdiction regarding mutation of the plot in question. The mutation of the leasehold rights of the above mentioned plot will be carried out in accordance with the said declaratory decision of the court.”
4. He submits that the plaintiff was, therefore, of the belief that the property still stands in the name of the father of the parties, late Sh. H.L. Mahendra. It is only with the written statement that the plaintiff learnt that the defendant no.1 has got a Conveyance Deed executed for the suit property in favour of the Industrial Plastics Company claiming it to be the sole proprietorship of the defendant no.1, thereby necessitating a challenge to the Conveyance Deed in form of an amendment to the Plaint.
5. On the other hand, the learned counsel for the defendant no.1 draws my attention to paragraph 13 of the Plaint, which reads as under:
6. He submits that the plaintiff has not filed any document in support of the above assertion. In fact, it was the categorical case of the plaintiff himself that the suit property still stands in the name of the father of the parties in the Revenue Record. The plaintiff cannot now improve upon his case.
7. He further submits that the letter dated 06.08.2010, which forms the basis of the present application, was not filed by the plaintiff along with the plaint. The plaintiff without seeking leave of this Court cannot rely upon the same. He must file an application under Order VII Rule 14 of the Code of Civil Procedure, 1908 showing sufficient cause for the said document to be taken on record.
8. I have considered the submissions made by the learned counsels for the parties.
9. The suit is at the initial stage with the issues yet to be framed. The plaintiff has averred that he was not in the knowledge of the execution of the Conveyance Deed in favour of the Industrial Plastics Company with the defendant no.1 claiming to be its proprietor. The plaintiff in the plaint has alleged that the Industrial Plastics Company is the sole proprietorship of the father of the parties. Therefore, by the present amendment, the plaintiff, in my opinion, is not seeking to change the nature of the suit.
10. As noted hereinabove, the suit is at the initial stage. For bringing about a full and final adjudication of all the disputes between the parties, in my opinion, it would be in the interest of justice that the plaintiff is allowed to amend the plaint.
11. The submission of the leaned counsel for the defendant no.1 that the plaintiff has not placed on record any document in support of his assertion in paragraph 13 of the Plaint, which has been reproduced hereinabove, in my view would not disentitle the plaintiff to seek an amendment. The merit of this assertion is to be considered at the time of parties leading their respective evidence. I may, however, note that the learned counsel for the plaintiff has drawn my attention to the verification of the plaint which states that the contents of the paragraph 13 thereof are based on the belief of the plaintiff.
12. The submissions of the learned counsel for the defendant no.1 that the plaintiff cannot rely upon the letter dated 06.08.2010, also does not impress me inasmuch as the said letter was addressed to the defendant no.2. In any case, as noted hereinabove, the suit is at the initial stage and this document is relevant to the dispute raised in the Suit and for a proper adjudication thereof.
13. Accordingly, on an oral prayer made by the learned counsel for the plaintiff, the said document is taken on record.
14. In view of the above, the plaintiff is allowed to amend the plaint.
15. The present application is allowed. The Amended Plaint is taken on record.
16. However, it is made clear that all the defenses of the defendant no.1 shall remain open. I.A. 7232/2020
17. This application has been filed by the plaintiff under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908, praying for an interim relief restraining the defendant no.1(A) and 1(B) from alienating, encumbering, or dealing with the suit property, that is, industrial plot bearing no. C- 256, Rewari Lane, Industrial Area, Phase II, New Delhi – 110064, in any manner without the leave of this Court.
18. It is the case of the plaintiff that the suit property was owned by late Sh. H.L. Mahendra, the father of the plaintiff and the defendant nos.[2] to 6; the father-in-law of the defendant no.1(A); and the grandfather of the defendant no.1(B). The deceased was using the suit property for running the operation of the Industrial Plastics Company, his sole proprietorship concern, wherein the plaintiff along with the defendant nos.[2] to 6 were also assisting financially and even otherwise in its business. The plaintiff migrated to United States of America in 1976. Unfortunately, the deceased died on 17.01.1982. The present suit has been filed seeking partition of the suit property claiming that he died intestate.
19. The defendant no.1(A) and 1(B), on the other hand, claim exclusive ownership of the suit property. In support, reliance has been placed on the Conveyance Deed dated 03.06.2013 executed by the DDA in favour of the Industrial Plastics Company, with the defendant no.1, late B.L. Mahendra as its sole proprietor.
20. The learned counsel for the defendant no. 1(A) and 1(B) submits that an order of injunction against the true owner cannot be passed. He further submits that it is only by a separate order passed today that the plaintiff has been allowed to challenge the Conveyance Deed. The Conveyance Deed having been executed way back on 03.06.2013, the plaintiff is not entitled to any interim relief. He submits that, in any view, as the Doctrine of lis pendens would apply, the plaintiff would stand adequately protected and, therefore, the defendant no. 1(A) and 1(B) should not be restrained from dealing in the suit property.
21. On the other hand, the learned counsel for the plaintiff, placing reliance on the various letters allegedly addressed by the deceased to the plaintiff, submits that the deceased was, in fact, the sole proprietor of the Industrial Plastics Company and, therefore, the true owner of the suit property. He submits that the defendant no. 1 was, in fact, a minor at the time of establishment of the Industrial Plastics Company. He submits that the defendant no.1, clandestinely claiming himself to be the proprietor of the Industrial Plastics Company, got a Conveyance Deed executed in his favour from the DDA without the knowledge or consent of the plaintiff and other legal heirs. The plaintiff and the other legal heirs of the deceased came to know of the execution of the Conveyance Deed only on the written statement being filed by the defendant no.1(A) and 1(B).
22. He further submits that no reliance can be placed on the Conveyance Deed also for the fact that the DDA by its letter dated 06.08.2010 had clearly stated that in view of the disputes on succession to the property, they would act only once a declaratory decree is obtained from a Court of Law. It is not known as to how the DDA later executed the Conveyance Deed in favour of the defendant no.1 as the sole proprietor of the Industrial Plastics Company.
23. He submits that the defendant no.1(A) and 1(B) have already been allowed to lease out the suit property vide order dated 20.11.2020, therefore, the balance of convenience will demand that the said interim order continues during the pendency of the present suit, as the suit property itself cannot be allowed to dissipate.
24. I have considered the submissions made by the learned counsels for the parties.
25. The plaintiff has asserted that the suit property was in the name of the Industrial Plastics Company, which was the sole proprietorship concern of the deceased. The plaintiff has also filed on record certain letters written by the deceased to the plaintiff, which prima facie support the case set up by the plaintiff. The plaintiff has also placed on record the letter dated 06.08.2010 by which the DDA informed the defendant no.2 that further mutation of the suit property would take place only upon a declaratory decree being obtained by the legal heirs of the deceased.
26. On the other hand, the defendant no.1(A) and 1(B), apart from placing on record the Conveyance Deed in favour of the Industrial Plastics Company, with the defendant no.1 claiming to be its sole proprietor, have not placed any other document on record to substantiate their claim that the suit property belonged to the defendant no.1 or that the Industrial Plastic Company was a sole proprietorship of the defendant no.1. I may herein note that the learned counsel for the plaintiff has asserted that when the Industrial Plastics Company was formed, the defendant no.1 was in fact a minor.
27. In view of the above, in my opinion, the plaintiff has been able to make out a good prima facie case in his favour. The balance of convenience is also in favour of the plaintiff and against the defendant no. 1(A) and 1(B). The plaintiff is likely to suffer grave irreparable injury in case the ad-interim orders are not confirmed. The property in dispute cannot be allowed to be dissipated during the pendency of the suit. In these facts, the Doctrine of lis pendens would not be adequate to safeguard the interest of the legal heirs of the deceased.
28. In view of the above, the ad interim order dated 02.09.2020, as modified on 20.11.2020, shall operate during the pendency of the present suit.
29. The application is disposed of in the above terms.
30. In view of the application I.A.8689/2021 being allowed and the Amended Plaint being taken on record, the defendant no.1(A) and 1(B) shall be entitled to file their Written Statement to the Amended Plaint within a period of four weeks from today.
31. Replication to the Written Statement be filed within a period of four weeks thereafter.
32. List on 10th July, 2023 before the learned Joint Registrar (Judicial). NAVIN CHAWLA, J MARCH 24, 2023