Suresh Malhotra v. R K Malhotra & Ors.

1. This application is filed under Order 6 Rule 17 CPC seeking amendment of the plaint.

2. The present suit is filed seeking a decree of declaration in favour of the plaintiff and against the defendant declaring the plaintiff to be the owner of 1/4th share in the suit properties of Rajinder Nagar and Vasant Kunj. A decree of partition is also sought.

3. The case of the plaintiff is that the father-late Sh.N.L.Malhotra had purchased these two properties in Vasant Kunj and Old Rajinder Nagar. The father passed away intestate on 11.02.2008. the plaintiff and defendant No.1 are the sons of late Sh.N.L.Malhotra, defendant No.3 was the wife of late 2018:DHC:7092 Sh.N.L.Malhotra and defendant No.4 is the daughter of late Sh.N.L.Malhotra.

4. The defendants have in the written statement stated that late Sh.N.L.Malhotra left behind a Will dated 12.06.1997 whereby he had bequeathed the property in Rajinder Nagar to his wife, i.e. defendant No.3. Subsequently, defendant No.3 had gifted the said property vide Gift Deed dated 09.06.2016 to defendant No.2 who is the wife of defendant No.1. Regarding the Vasant Kunj Property, it has been pleaded that the said property was willed by late Sh.N.L.Malhotra vide Will dated 12.06.1997. It is further pleaded that during the lift time of Sh.N.L.Malhotra only the Conveyance Deed from DDA was executed for the said properties in favour of defendant No.2 on 27.03.1998.

5. By the present application, in view of the said averments made by the defendants, the plaintiff seeks to amend the plaint whereby he seeks to challenge the legality and validity of the Will dated 12.06.1997 of late Sh.N.L.Malhotra, Gift Deed dated 09.06.2016 and Conveyance Deed dated 27.03.1998. Other consequential reliefs are sought to be added.

6. Learned counsel appearing for the defendants have opposed the present application. They point out that the plaintiff had knowledge of the Will dated 12.06.1997 at the time of the filing of the plaint as there is a reference of the same in the plaint. It is also submitted that the Conveyance Deed regarding the Vasant Kunj Property was executed way back in 1998 and now, the plaintiff has woken up belatedly to try and challenge the same.

7. Learned counsel for the plaintiff has stated that the plaintiff was not aware about either the Will or the Gift Deed or the Conveyance Deed and has got knowledge of these documents and details thereof only after filing of the suit and hence, the need for amendment.

8. It is settled law that the merits of the contentions which are sought to be raised in an application for amendment are not to be gone into at the time of adjudication of an application for amendment of the pleadings. The rule of amendment is essentially a rule of justice, equity and good conscience. The court while considering the application for amendment should not go into the authenticity or falsity of the case in the amendment.

9. Reference in this context may be had to the judgement of the Supreme Court in Rajesh Kumar Aggarwal and Ors. vs. K.K. Modi and Ors. AIR 2006 SC 1647. “13. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case.”

10. Reference may also be had to the judgment of the Supreme Court in the case of Revajeetu Builders and Developers vs. Narayanaswamy and Sons & Ors, (2009) 10 SCC 84. The Supreme Court held as follows:- “63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.”

11. Hence, the proposed amendments which are now sought in the said application are bona fide.

12. Accordingly, the application is allowed subject to payment of cost of Rs.20,000/-. The amended plaint is taken on record. The defendants may file written statement to the amendment plaint within four weeks from today.

JAYANT NATH, J. NOVEMBER 01, 2018