Full Text
HIGH COURT OF DELHI
Date of Decision: 2nd September, 2019
M/S ROOP SAREES & ANR. ..... Petitioners
Through: Mr. Manish Vashisht, Mr. Sameer Vashisht & Mr. Manashwy Jha, Advocates (M-9013980691)
Through: Mr. N.P. Singh, Advocate (M- 9891110678)
M/S ROOP SAREES & ANR. ..... Petitioners
Through: Mr. Manish Vashisht, Mr. Sameer Vashisht & Mr. Manashwy Jha, Advocates.
Through: Mr. N.P. Singh, Advocate.
JUDGMENT
1. The caveat is discharged as the Caveator has appeared. CM APPL. 39249/2019 (for exemption) in CM(M) 1292/2019 CM APPL. 39264/2019 (for exemption) in CM(M) 1293/2019
2. Allowed, subject to all just exceptions. Applications are disposed of. CM (M) 1292/2019 & CM APPL. 39248/2019 CM (M) 1293/2019 & CM APPL. 39263/2019
3. The present petitions have been filed challenging the order dated 16th 2019:DHC:4283 July, 2019 by which the ld. ADJ has allowed the application under Order VI Rule 17 CPC. The ld. ADJ’s order arises out of a remand order passed by this Court on 8th March, 2019 to decide the application under Order VI Rule 17 afresh. The said order reads as under: “CM APPL. 10915/2019 The matter is fixed for 04.04.2019 and is taken up today on CM APPL. 10915/2019 filed on behalf of the respondents seeking a vacation of the interim order dated 26.11.2018 vide which the hearing of the final arguments in the suit before the learned Trial Court was kept in abeyance. It is considered thus appropriate to take up the petition itself for hearing. The petitioner assails the impugned order dated 04.07.2018 of the learned Trial Court of the ADJ-14, Central, THC, Delhi, in CS DJ No. 613947 of 16, which reads to the effect: - “CS DJ No.: 613947 of 16 04-07-2018 Present: None for the parties. I considered the application of the plaintiff under Order VI Rule 17 of CPC for amendment of the plaint. Considering submissions of Id. Counsel for the parties, the amendment application is allowed in the interest of justice. Amended plaint be filed accordingly with advance copy to the opposite party. Case is adjourned for filing of WS to the amended plaint, if any, and for PE for 28-08-2018. ADJ-14, Central, THC, Delhi/04-07-2018” Inter alia, through the petition, it has been submitted that the stated order is a wholly nonspeaking order and does not give any reason in relation to the aspect as to why the application under Order VI Rule 17 of the CPC filed by the respondents seeking amendment of the plaint at the stage of the final arguments was allowed. The same is apparent from the impugned order dated 04.07.2018 itself that after considering submissions of the learned counsel for the parties, the amendment application was allowed in the interest of justice. Learned counsel for the respondents has however submitted that the additional issues were framed on 18.10.2018 by the learned Trial Court and that there has thus been a merger of the order dated 04.07.2018 which can thus not be assailed in view of the framing of the additional issue. However, the mere framing of the same does not detract from the aspect that the impugned order dated 04.07.2018 does not show any adjudication on the merits or demerits of the prayer that had been made. The impugned order dated 04.07.2018 of the learned Trial Court and the consequential order dated 18.10.2018 both in CS DJ No.: 613947 of 16 as was pending before the learned Trial Court of the ADJ-14, Central, THC, Delhi are thus set aside with the directions to the learned Trial Court to adjudicate the application under Order VI Rule 17 of the CPC filed by the respondents on 23.02.2018 by speaking order after giving opportunity to both sides to make submissions. The petition and its accompanying application are disposed of. The earlier date of hearing i.e. 04.04.2019 stands cancelled”
4. The crux of the dispute between the parties is that the Plaintiffs/Respondents (hereinafter „Plaintiffs‟) had filed a suit seeking eviction and ejectment of the Petitioners/Defendants (hereinafter „Defendants‟) from the suit property, being Municipal No. 10188 and 10193, 3, Arya Samaj Road, Karol Bagh, New Delhi – 110005, as also recovery of mesne profits and damages. In the said suit, the Plaintiffs had prayed for certain reliefs. The matter proceeded to evidence and at the stage of final arguments, the Plaintiffs moved an application under Order VI Rule 17 CPC seeking to add a relief in the suit. This application was opposed by the Defendants but has now been permitted by the impugned order.
5. Mr. Manish Vashisht, ld. Counsel submits that the addition of the relief in respect of arrears of rent is completely contrary to law as the same has been allowed post the trial of the suit and is hit by the proviso to Order VI Rule 17 CPC. He relies upon the following judgments: Ajendraprasadji N. Pandey & Anr. v. Swami Keshavprakeshdasji N. & Ors., (2006) 12 SCC 1 Jitender Agal v. Smt. Reena Kakar, 132 (2006) DLT 15
6. He submits that the relief of arrears of rent is completely barred by limitation and the plaint could not have been allowed to be amended to add a relief which is barred by limitation.
7. On the other hand, ld. counsel for the Plaintiffs submits that the pleadings were already there in the plaint in respect of arrears of rent. Only a relief was sought to be added. He relies upon the judgment in Pankaja & Anr. v. Yellapa (Dead) by LRs & Ors., (2004) 6 SCC 415.
8. This Court has perused the plaint, the application for amendment and the impugned order. It is relevant to point out that in the plaint, the Plaintiffs made the following averments:
9. A perusal of the above averments in the plaint clearly shows that the Plaintiffs had taken three pleas in the plaint: i) For ejection ii) For arrears of rent; and iii)For mesne profits
10. The manner in which the prayer has been structured clearly shows that while two of the reliefs were contained in the prayer clause, despite the quantification of the arrears of rent, in the earlier paragraphs in the Plaint, the same does not find a mention in the prayer clause. It was under these circumstances, that the ld. Trial Court has allowed the amendment to be made.
11. A perusal of the law on the subject makes it clear that in the judgment of Ajendraprasadji N. Pandey & Anr. v. Swami Keshavprakeshdasji N. & Ors. (supra), the Supreme Court observes the following regarding Order VI Rule 17 CPC:
12. A perusal of the above judgment clearly shows that in spite of due diligence, if the matter could not be raised before the commencement of trial, then the amendment can be allowed. In the present case, it cannot be said that the matter was not raised prior to the commencement of trial. A perusal of paragraphs 14 and 18 clearly shows that the question of arrears of rent has not only been quantified, but the monthly payment payable by the Plaintiffs has also been clearly mentioned. The Court fee too has accordingly been paid as per paragraph 18 of the valuation in the suit.
13. Under these circumstances, firstly, it cannot be held that the matter was not raised. Secondly, the proviso to Order VI Rule 17 would also not hit the present suit. The proviso would come into effect only if a completely new relief is being sought after the commencement of trial. This does not appear to be the case herein.
14. Insofar as the question of limitation is concerned, whether the arrears of rent are liable to be granted or not and if any portion of the arrears of rent is barred by limitation, is a question that has to be considered by the Trial Court at the time of final adjudication and not at this stage. The Trial Court shall consider whether in the prayer which has now been added i.e., arrears of rent for the period of May, 2005 to 15th June, 2008, any portion is barred by limitation and whether any portion is liable to be rejected or allowed.
15. Thus, the present petitions are being disposed of with the direction that the allowing of the amendment i.e., relief in respect of arrears of rent, should not be construed as an opinion on merits on the question of whether the same is barred by limitation or not. Since the arrears of rent had been raised before the Trial Court in the plaint itself, the application under Order VI Rule 17 CPC has been correctly allowed. The same is allowed, subject to payment of costs of Rs.25,000/-. The amount of Rs.7,500/- already paid shall be given credit for. The costs shall now be deposited by the Plaintiffs in the Prime Minister Relief Fund. The proof of the same shall be brought on record before the Trial Court prior to the hearing of the matter.
16. Accordingly, the petitions and all pending applications are disposed of in the above terms.
PRATHIBA M. SINGH JUDGE SEPTEMBER 02, 2019 Rahul