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HIGH COURT OF DELHI
ASHOK KUMAR & ORS. ..... Plaintiffs
Through: Mr. Rajiv Raheja, Advocate (Ph. 9811826000, e-mail: rrajive@gmail.com).
Through: Mr. Sandeep Sharma, Advocate for D-3.
JUDGMENT
1. This application has been filed on behalf of the plaintiffs with prayer for returning back the written statement filed by the defendant No.3 and calling upon the defendant No.3 to file fresh written statement.
2. It is the case of the plaintiffs that the present suit was filed for declaration and permanent injunction initially before ld. District Judge, Delhi. The defendants herein had filed their respective written 2022:DHC:3211 statements. Subsequently vide order dated 17.05.2003, ld. ADJ had framed issues, including Preliminary Issue no.1 which read as under: “Whether the present suit is barred by the provisions of the Delhi Land Reforms Act, as alleged in the written statement? OPD”
3. The suit of the plaintiffs was dismissed vide order dated 17.05.2003. Against the said order, the plaintiffs filed appeal before this Court, being RFA (C) No. 621/2003. By order dated 05.03.2012, the appeal filed by the present plaintiffs was allowed by this Court, and the present suit of the plaintiffs was sent back for trial on the remaining issues.
4. Subsequently, the plaintiffs sought amendment of the plaint for seeking relief of possession, as the said relief had not been claimed by the plaintiffs initially. The said amendment was allowed and the plaintiffs were allowed to file amended plaint. Since on the relief of possession, the jurisdictional value of the suit crossed Rs.[2] crores upon amendment, the present suit was transferred to this Court.
5. Upon filing of the amended plaint, amended written statement was filed on behalf of the defendant No.3. However, as per the plaintiffs, the defendant No.3 has introduced additional and new facts in the amended written statement, which is contrary to law. Thus, it is prayed that the written statement so filed on behalf of defendant No.3 should be returned back. It is contended on behalf of the plaintiffs that the amended written statement ought to have been limited only to the amended portion of the plaint. However, an entirely different and new written statement filed on behalf of defendant No.3 is contrary to law.
6. On the other hand ld. Counsel for defendant No.3 has opposed the present application and has contended that the amended reply is in consonance with the earlier reply and that the amended written statement was filed pursuant to the amended plaint filed on behalf of the plaintiffs and thus relevant facts have been brought forth in the amended written statement.
7. I have heard the ld. Counsels for the parties and have also perused the written statement filed on behalf of defendant No.3.
8. At the outset, it would be fruitful to refer to provisions of Order VI Rule 7 and Order VI Rule 16 CPC, which are reproduced as below: “7. Departure.—No pleading shall, except by way of amendment raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.”...... “16. Striking out pleadings.—The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading— (a) which may be unnecessary, scandalous, frivolous or vexatious, or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or
(c) which is otherwise an abuse of the process of the
9. With respect to provisions of Order VI Rule 16 CPC, Hon’ble Supreme Court in the case of Abdul Razak and Others Vs. Mangesh Rajaram Wagle and Others, reported as (2010) 2 SCC 432, has held as follows: “17. Normally, a court cannot direct or dictate the parties as to what should be their pleading and how they should prepare their pleadings. If the parties do not violate any statutory provision, they have the freedom to make appropriate averments and raise arguable issues. The court can strike off the pleadings only if it is satisfied that the same are unnecessary, scandalous, frivolous or vexatious or tend to prejudice, embarrass or delay the fair trial of the suit or the court is satisfied that suit is an abuse of the process of the court. Since striking off the pleadings has serious adverse impact on the rights of the party concerned, the power to do so has to be exercised with great care and circumspection.”
10. Similarly with respect to Order VI Rule 16, in the case of Ajay Arjun Singh Vs. Sharadendu Tiwari and Others, reported as (2016) 15 SCC 219, Hon’ble Supreme Court held as follows: “4......It authorises the court to order that any matter in any pleading before it be struck out on the grounds specified under clauses (a), (b) and (c). Each one of them is a distinct ground. For example, clause (a) authorises the court to strike out the pleadings which may be (i) unnecessary, (ii) scandalous, (iii) frivolous,
(iv) vexatious. If a pleading or part of it is to be struck out on the ground that it is unnecessary, the test to be applied is whether the allegation contained in that pleading is relevant and essential to grant the relief sought. Allegations which are unconnected with the relief sought in the proceeding fall under this category. Similarly, if a pleading is to be struck out on the ground that it is scandalous, the court must first record its satisfaction that the pleading is scandalous in the legal sense and then enquire whether such scandalous allegation is called for or necessary having regard to the nature of the relief sought in the proceeding. The authority of the court under clause (c) is much wider. Obviously, such authority must be exercised with circumspection and on the basis of some rational principles. The very purpose of the Rule is to ensure that parties to a legal proceeding are entitled ex debito justitiae to have the case against them presented in an intelligible form so that they may not be embarrassed in meeting the case.”
11. Similarly Order VI Rule 7 of CPC provides that no pleading, except by way of amendment, shall raise any new ground of claim or contain any allegation of fact, which is inconsistent with the previous pleadings of the parties pleading the same.
12. On the aspect of Order VI Rule 7 CPC, reference may be made to the judgment in the case of Rukhsana Sultana Vs. Mohinder Kaur, reported as 1983 Rajdhani Law Reporter 776, wherein it was held as follows: “8...... However, I find it difficult to go further and subscribe to the view that the additional W/s to be filed to the amended plaint must confine to the amendments made in the plaint i.e. the defendant can have his say only with respect to the matter introduced by amendment and no further. In my view, there is no warrant for such a conclusion having regard to the plain language of R. 7 O. 6 which simply prohibits a party from raising any new ground of claim or making any allegation of fact inconsistent with the previous pleadings of the party in his subsequent pleadings. It nowhere says that a party called upon to file additional W/s must confine its answer to the amended portion of the opponent’s pleadings. Hence, a defendant will be entitled to take up any new plea and even aver new facts in his additional written statement so long as they do not constitute a new ground of claim or are not incompatible with his earlier pleadings and there is no infraction of R. 7 O. 6. For instance, he may bring forth additional facts to explain or amplify the stand already taken in the original W/s. The Court will, of course, ignore the additional W/s if it contains a new ground of claim or allegation of fact which is inconsistent with his previous pleadings.”
13. Considering the law as enunciated with respect to striking out the pleadings, the facts of the present case are considered.
14. It is seen from the record that the present suit was filed initially in the year 2001 for declaration and permanent injunction only. The plaintiffs did not seek relief of possession of the suit property, though they were not in possession of the suit property at the time of filing of the suit. Subsequently, after more than 12 years of filing of the suit, the plaintiffs in the year 2014 filed an application for amendment of the plaint under Order VI Rule 17 CPC to seek relief of possession also. The said application of the plaintiffs for amendment was allowed and the defendant No.3 herein was allowed to file written statement to the amended plaint.
15. This Court has considered the submission made on behalf of defendant no. 3 that the reply to the amended plaint consisted of facts, which were necessary to be brought forth since the plaintiffs had amended the plaint thereby adding the relief of possession also, which was not there earlier. Thus, ld. Counsel for the defendant No.3 submitted that the defendant No.3 filed an amended written statement explaining the entire set of transactions that took place between the plaintiffs and the defendants. It was submitted on behalf of defendant No. 3 that the said facts were not mentioned in the earlier written statement, as the relief of possession was not sought by the plaintiffs earlier.
16. I am in agreement with the submissions made on behalf of defendant No.3. Since there was amendment to the plaint and additional relief of possession was included, incorporation of relevant facts was necessary to bring forth the correct picture before this Court.
17. I have perused the earlier written statement dated 18.02.2003 filed on behalf of defendant Nos. 3 and 4 as well as the written statement dated 12.11.2018 filed on behalf of defendant No.3 to the amended plaint.
18. In the written statement dated 18.02.2003, on behalf of defendant Nos. 3 & 4, the following submissions have been made:
19. On the other hand in the written statement dated 12.11.2018 to the amended plaint, the defendant No.3 has stated additional facts as follows: “ADDITIONAL FACTS:
1. That Mr. Ved Prakash is father of Plaintiff No. 1 and 3 (Shri Ashok Kumar & Shri Amit Ratawal), brother of Plaintiff No. 2 (Shri Devender Kumar) and real uncle of Plaintiff No.4 (Shri Sumit Ratawal).
2. The said Ratawal family, was having a partnership in the name of Godha Ram & Sons. In year 1982 said Sh. Ved Prakash as a partner of the Firm purchased agricultural land measuring 33 bigha and 7 biswa (i.e. 07 bighas 13 biswas bearing khasra no.69/7 Min(4-04) and 69/14 Min (3-09) situated in Village Nizampur, Delhi, land measuring 12 bighas 17 biswas bearing khasra no.69/6 (4-08) 69/7 (0-04) 69/14 Min (0-14'), 69/15 Min(l-16) 70/10/2 (2-15) 70/11/1(3-0) in village Nizampur, Delhi, and land measuring 12 bighas 17 biswas, bearing Khasra No.69/14 Min (0-13) 69/15 min (3-00) 79/16(4-12) 69/17(4-08), and 69/26(0-04) in the revenue estate of village Nizampur, Delhi in his name and the agricultural land measuring 6 bighas and 18 biswas, Mustatil No.23 killa no.9 (2-2) 12 (4-16) situated in village Nizampur, Rasidpur, Tehsil and District Delhi in the name of his one son. Shri Ashok Kumar (hereinafter referred as suit land). The said land was purchased by Sh. Ved Prakash etc. to run their brickklin (Bhatta) business but due to change in circumstances they could not start brickklin from the land so the said land was of no use for Ratawal Family and was lying almost idle/vacant.
3. That all the Plaintiffs and Defendant No.4 husband of answering Defendant were very well known to each other being neighbours. Further the Defendant No. 2 Sh. ShivRaj Singh, Sh. V.R. Dhuria, Defendant No. 4 and Sh. Ved Prakash Ratawal were very good friends. Worth mentioning, the defendant no. 2 Sh. Shiv Raj Singh was man of means and sources. The said Sh. Ved Prakash used to take loan from him for the purpose of running his business. The Defendant No. 2 Shiv Raj Singh had extended loan to Sh. Ved Prakash and his family a number of times.
4. That Sh. Shiv Raj was also owner of a Lal Dora Plot in village Nizam Pur. Both Sh. Ved Prakash and Sh. Sandeep Dhuria S/o Sh. Y.R. Dhuria with their other partner intended to a run factory, so they started Milan Ice factory from their plot as well as of Sh. Shiv Raj plot in Nizam Pur Village. It is worth mentioning that to finance the said Ice Factory Defendant No. 3 Ms. Kamla Dhuria and Defendant No. 4 Sh. Y.R. Dhuria mortgaged their property with The Vaish Co- Operative Adarsh Bank Ltd. to get the loan. But unfortunately the said Ice factory could not earn profits and hence was closed. Due to the loss in ice factory and also because of the bad financial position etc. the said Sh.Ved Prakash Ratawal and his family could not return back the loan amount taken by them from the Shiv Raj Singh. However, said Sh. Shivraj kept on requesting the Sh. Ved Prakash and family to return the amount taken by them. On one of such occasion, in the year 1997, Sh. Ved Prakash made an offer to Sh. Shiv Raj Singh to purchase the suit land at a consideration amount of Rs. 4,00,000/-, since Sh. Ved Prakash and family was not in position to repay the loan amount. Initially Sh. Shiv Raj Singh was not interested to purchase the land but on repeated request of the Sh. Ved Prakash Ratawal, he got ready.
5. That, in Year 1997, Sh. Ved Prakash received consideration amount of Rs. 4,00,000/- from Shiv Raj Singh, after all settlements and adjustments. Further said Sh. Ved Prakash also handed over original Sale Deeds pertaining to suit land. Sh. Ved Prakash also told Shivraj Singh after some time he will convince his family and will get sale deed of the suit land executed in his favour. Worth mentioning that Sh. Ved Prakash also handed over the peaceful vacant possession of the suit land to Sh. Shiv Raj Singh. As both were friends and further possession of the land and original title /sale deed of the suit land was given to Sh. Shivraj Singh so he acceded to the demand of Sh. Ved Prakash.
6. That after taking possession of the suit land the Defendant No. 4, Sh. Shiv Raj Singh renovated the suit land to give it shape of a farm house and named it Shiv Raj Farms.
7. That with passage of time the intention of the said Sh. Ved Prakash Ratawal became ill and malfide. He tried to escape from his contractual and legal obligation of transferring, the suit land / property in favour of Sh. Shiv Raj Singh. The said fact is also evident from the fact that in year 1998, the said Sh. Ved Prakash without any reason and consideration, transferred the suit land which was in his name, in favour of his brother Defendant No. 2, i.e., Sh. Devender Kumar (agricultural land measuring 07 bighas 13 biswas bearing khasra no.69/7 Min(4-04) and 69/14 Min (3-09) situated in village Nizampur, Delhi), his son Defendant No. 3 i.e. Sh. Amit Ratawal (land measuring 12 bighas 17 biswas bearing khasra no.69/6 (4-08) 69/7 (0-04) 69/14 Min (0-14'), 69/15 Min(l-16) 70/10/2 (2-15) 70/11/1(3-0) in village Nizampur, Delhi) and his nephew Defendant No. 4 i.e. Sh. Sumit Ratawal (land measuring 12 bighas 17 biswas, bearing Khasra No.69/14 Min (0-13) 69/15 min (3-00) 79/16(4-12) 69/17(4-08) and 69/26(0-04) in the Revenue Estate of Village Nizampur, Delhi). These sale deeds were sham transactions shown to be executed by Sh. Ved Prakash. With the ulterior motive of frustrating the earlier valid contract / agreement which Sh. Ved Prakash entered with Defendant no.2 Sh. Shiv Raj Singh, the said Sh. Ved Prakash executed these sale deed, unlawfully in order to escape from his legal and contractual obligation.
8. That when the said fact came into the knowledge of Sh. Shiv Raj Singh, he contacted Sh. Ved Prakash and enquired about the matter, Sh. Ved Prakash told Sh. Shiv Raj that there is problem in his family so to settle the matter he had transferred the suit land in favour of the family members, he requested to Sh. Shiv Raj Singh to give him some time, he also assured Sh. Shiv Raj Singh that he will get the sale deed of the suit land in his favour by the family members. On such assurance of the said Sh. Ved Prakash, Sh. Shivraj got ready to wait for some more time.
9. That later, on persistent efforts and request by Sh. Shiv Raj Singh, Sh. Ved Praksh told him that his bother Devender Kumar, nephew Sumit Ratawal and sons Ashok Kumar and Amit Ratawal will execute a GPA in favour of any person constituting him to be their Power of attorney to execute sale deed in your favour. As Sh. Ved Prakash was not very forth coming to execute the Sale Deed, so he got ready for the execution of the GPA and asked Sh. Ved Praksh to get the GPA executed by his bother Devender Kumar, nephew Sumit Ratawal and sons Asok Kumar and Amit Ratawal in favour of his wife Ms. Munni Devi Defendant no.l, in respect of the suit land. After some time i.e. on 15th April 1999 Sh. Ved Prakash Ratawal handed over the duly executed GPA, constituting Ms. Munni Devi their GPA, in respect of the suit land, duly signed and executed by his bother Devender Kumar, nephew Sumit Ratawal and sons Ashok Kumar and Amit Ratawal.
10. That thereafter, on 24th December 1999 all the four Plaintiffs through their duly constituted attorney i.e. Ms. Munni Devi Defendant-No. 1, executed and got registered a Sale Deed in favour of the Defendant NO. 2 Sh. Shiv Raj Singh in respect of the suit land/property. Further on the basis of genuine, legal and valid documents the said Sh. Shiv Raj Singh got the suit land mutated on his name in revenue record.
11. That after some time Sh. Shiv Raj Singh was not interested to retain the suit land because of personal (sic) reason, so he offered the suit land to the Defendant No. 3 Ms. Kamla Dhuria at the consideration amount of Rs. 4,50,000/-. The Defendant No. 3 & 4 were interested to have a farm house in Delhi to live a peaceful life after retirement, so they got ready to purchase the suit land from Sh. Shiv Raj Singh. In pursuance thereof on 28th February 2001 the Defendant No. 3 made a payment of Rs. 4,50,000/- to Shiv Raj Singh and he executed and got registered a sale deed in favour of the Defendant No. 3 in respect of the suit land. He also handed over the original sale deeds of the suit land to the Defendant No.3.
12. That till that time rate of the suit land started increasing so the said Ratawal Family of plaintiffs, became greedy to extort money from the defendants. They concocted a story that the GPA executed by the plaintiffs in favour of Defendant No. 1 is forged one. The said allegation is absolutely false and is made just in order to usurp the property / suit land of the answering defendant illegally and to deprive her from her lawful right.
13. That the plaintiffs and their family members, particularly Sh. Ved Prakash lodged various false complaints against the defendants and also got this suit filed against the defendants with ill intent. The instant suit is nothing but bundle of lies, drafted, to snatch the suit land from the answering defendant unlawfully. The answering defendant purchased the suit land /property by virtue of valid and genuine Sale Deeds / Documents after paying the sale consideration to Defendant No. 2, who purchased the same from the Plaintiffs, through valid and genuine documents after paying the valuable consideration. Now the plaintiffs have no right, title and interest etc. over the suit land whatsoever.
14. That instant suit is nothing but misuse of process of law to black mail the answering Defendant. The entire conduct and acts of the Plaintiffs tantamount to commission of various criminal offences, the answering Defendant reserves her right to criminally prosecute them.”
20. Perusal of the aforesaid pleadings in the written statement dated 18.02.2003 and 12.11.2018, clearly show that the pleadings in both the written statements filed on behalf of defendant No.3 are not inconsistent with each other. In both the written statements, it has been stated that defendant No.3 is a bona fide purchaser and lawful owner in possession of the suit property. It is the case of the defendant No.3 in both the written statements that defendants are in actual possession of the suit property and that land is mutated in the name of defendants as Bhumidar and owner in the revenue records.
21. By way of the additional facts as stated in the written statement, the defendant No.3 has only given a narrative as regards the purchase of the suit property. Since it is the uniform and persistent case of the defendants that the suit property is under the ownership and possession of the defendants, the narrative as regards the various transactions pertaining to the said suit property, cannot be said to be inconsistent with the earlier pleadings. The basic case on behalf of the defendants has remained steady and uniform and the additional facts as given in the amended written statement cannot be said to be a departure from the earlier pleadings. Thus, it cannot be said that the defendant No.3 has made a departure in the subsequent pleadings in violation of the prohibition as contained in Order VI Rule 7 CPC.
22. Similarly, it cannot be said that the pleadings made in the amended written statement by the defendant No.3 is in any manner unnecessary, scandalous, frivolous or intended to delay the fair trial of the suit. There is no ground made out to strike out the pleadings in the amended written statement in terms of Order VI Rule 7 read with Order VI Rule 16 of CPC.
23. In view of the aforesaid discussion, I find no merit in the present application.
24. The present application is dismissed. MINI PUSHKARNA, J AUGUST 24th, 2022 au