Alka Garg v. Sanjay Karir & Anr

1. This is an application filed by the plaintiff u/O VI R 17 CPC read with Section 151 CPC for amendment of the plaint.

2. It is the case of the plaintiff that she had instituted the present suit for partition, rendition of account and permanent injunction. The defendants have filed a written statement on or about May 29, 2015 and have disclosed for the first time that the plaintiff and her mother had allegedly executed a Relinquishment Deed relinquishing their right in the suit property in their favour. It is her case that prior to the filing of the written statement, the plaintiff was not aware of the said Relinquishment Deed, which the plaintiff categorically state, is as a result of fraud, undue 2016:DHC:718 influence and misrepresentation. It is also her case that upon inspection of the Court record, she has come to know that the defendants have filed a purported Memorandum of Family Settlement dated April 25, 2007, which records an oral family settlement. The said document is a false document and has been manufactured to give support to the alleged Relinquishment Deed, which is itself a result of fraud, undue influence and misrepresentation. By way of amendment, the plaintiff intends to substitute and replace the title of the suit to be a suit for partition, cancellation, declaration, rendition of accounts and permanent injunction. She intends to incorporate paras 9A to 9O after para 9. She intends to add the word ‘blank’ in the third line of paragraph 22 between the words ‘on’ and ‘paper’ and the word ‘black’ be deleted and add one paragraphs after paragraph 20 making a corresponding amendment to the paragraph 23 relating to valuation of the suit. Similarly, paragraphs ‘E’ to ‘J’ have been added to the prayer clause. Amended suit has also been filed along with the said application.

3. The defendants have filed their reply to the application u/O VI R 17 CPC, wherein they have opposed the amendment on the ground that the plaintiff is trying to make up a new case, there is no cause of action for the plaintiff to file the present suit. They also state, that the plaintiff is well aware of the Relinquishment Deed dated June 15, 2007 as the plaintiff had executed the said Relinquishment Deed before the concerned Subrest of the paragraphs of the application.

4. Mr. Vikas Dhawan would submit that the defendants have got signed certain blank papers from the plaintiff on the pretext that the same are to get the suit property mutated in the name of the legal heirs, for electricity, water connection etc. He would state, that she had come to know about the Relinquishment Deed dated June 15, 2007 and the Memorandum of Family Settlement dated April 25, 2007 only in May, 2015, on the filing of the written statement/documents by the defendants. He would take support of section 17(1)(a) read with Article 59 of the Limitation Act, section 31 of the Specific Relief Act to contend that a registered document can be challenged and for that, the date of knowledge would be relevant for the purpose of limitation. He would rely upon the judgment of the Division Bench of this Court in the case of Siri Bhagwan vs. M/s V.B.M Estates Pvt Ltd & Anr. RFA (OS) 62/2015 decided on September 11, 2015, (2006) 5 SCC 638 Ramesh B. Desai and others vs. Bipin Vadilal Mehta and others, (2006) 4 SCC 385 Rajesh Kumar Aggarwal and others vs. K.K. Modi and others.

5. On the other hand, Mr. A.V. Shukla, learned counsel for the defendants would reiterate the stand taken by the defendants in their reply. He states, the challenge to the Relinquishment Deed dated June 15, 2007 is an afterthought. According to him, knowing well the plaintiff having not challenged the Relinquishment Deed, cannot now challenge the same after such a long period of time. He also states, that the Relinquishment Deed is a registered document, which has been signed by the plaintiff and a validly executed document.

6. Having heard the learned counsel for the parties, the initial suit filed by the plaintiff was a suit for partition, permanent injunction and rendition of accounts. In the written statement filed by the defendants, they have taken a stand that the plaintiff has no locus standi to file the present suit as she had already executed Relinquishment Deed dated June 15, 2007 and having no right, title, interest in the suit premises, the same was liable to be dismissed with cost. They also pleaded, suit is barred by limitation and need to be dismissed. I note, that the plaintiff had made no reference to the Relinquishment Deed in her pliant, a stand has been taken in the application for amendment that the plaintiff got knowledge about the Relinquishment Deed dated June 15, 2007 and the family settlement dated April 25, 2007 on the filing of the written statement. No doubt, the Relinquishment Deed is a registered document but it is the case of the plaintiff in the application for amendment by incorporating certain paragraphs stating that the defendants had obtained signatures on several papers, which were either blank or as it now transpires, some of them have been typed and correspondingly she has pleaded fraud, undue influence and misrepresentation in that regard. A judgment of the Division Bench in Siri Bhagwan (supra) supports the case of the plaintiff, inasmuch as in the said case, Siri Bhagwan, the appellant had filed a suit CS(OS) 2670/2014 before this Court in the year 2014 inter-alia seeking the cancellation of registered sale deed dated November 13, 2006, declaring him as owner of 2/9th share in land bearing Khasra No.852 (4-

16) situated in the revenue estate of Village Rajokari, tehsil Vasant Vihar, New Delhi and restraining the defendants from dispossessing him from his undivided cultavatory possession of the suit property. It was the case of Siri Bhagwan that he was recorded co-owner in actual cultivatory possession of the 2/9th share of the suit property besides being the coowner of other lands bearing khasra Nos.1117 (1-18), 1118(3-8), 1119(5- 5), 1120(15-7) of Village Rajokari, Delhi. According to him, Pramod Aggarwal defendant No.2 in the suit offered to purchase the suit property on November 13, 2006 for a sum of Rs. One crore and paid a sum of Rs.30 lakhs as advance and the balance was to be paid within 12 months. Pramod Agarwal took Siri Bhagwan to the office of Sub-Registrar at Kapeshera, Delhi and tendered a cheque for a sum of Rs. 30 lakhs as earnest money and took thumb impression and signatures of Siri Bhagwan on some typed papers which he could not understand being not well versed in English language. Pramod Aggarwal represented that the said documents were deed of agreement to sell which were required to be registered. Though 12 months elapsed but Pramod Agarwal neither paid the balance amount nor turned up for execution and when Siri Bhagwan met him he was told that Pramod Agarwal did not have the balance amount and the same would be paid with 12% interest whenever the market recovered. Not hearing anything from Pramod Agarwal, Siri Bhagwan continued to enjoy his land as before November 13, 2006. In the first week of September 2013 Siri Bhagwan saw a notice regarding mutation of the suit property and upon enquiry from the Halqa Patwari it was revealed that defendant No.1 i.e. V.B.M. Estates Pvt.Ltd. had applied for mutation on the basis of a release deed dated November 13, 2006. Thus for the first time in September 2013 Siri Bhagwan came to know about release deed which was registered on November 13, 2006 wherein, Pramod Agarwal was shown as the authorised signatory of V.B.M.Estates. Siri Bhagwan appeared before the Tehsildar on September 10, 2013 when he did not give his consent to the mutation and got recorded his objection that he was in possession of suit property and was yet to receive the sum. He further stated that once the money transaction would be over, he would come to give his statement. Since balance amount was not paid by the defendants and they were trying to get the mutation recorded in the garb of the release deed which was stated to be a deed of agreement for sale to Siri Bhagwan, he filed the suit. The V.B.M. Estates and Pramod Agarwal, in their written statement took the pleas that the suit was without any cause of action, Siri Bhagwan had no locus standi to claim the relief, the suit was barred by limitation, suit for mere cancellation of the release deed and declaration of ownership without the relief of possession was not maintainable under Section 34 of the Specific Relief Act, the suit was barred under Section 185 of the Delhi Land Reforms Act, 1954. The defendant also took the plea that the execution of release deed has been admitted by Siri Bhagwan before the Tehsildar on September 10, 2013 during mutation proceedings. Hence now he cannot plead ignorance and go beyond the terms of the written document.

7. Suffice to state, the learned Single Judge dismissed the suit being barred by limitation, no cause of action accrue in favour of Siri Bhagwan and that the suit for declaration as owner of suit property was barred under Section 185 of the Delhi Land Reforms Act. The Division Bench, in para 9 noted that Siri Bhagwan was not well conversant with the English language. He was not aware of the contents of the documents and was informed that the same was deed of Agreement to Sell and the sale deed was to be executed on the balance payment of Rs.70 Lacs, cannot be brushed aside. The Division Bench in para 10 stated as under:- “10. It is well settled that the cause of action to sue accrues to a person only when fraud comes to his knowledge and as per Article 59 of the Limitation Act the period of limitation starts when the facts entitling the plaintiff to have the instrument cancelled first become known to him. In the present case the same would be September 10, 2013 when he appeared before the Tehsildar and became aware that the document dated November 13, 2006 was not a deed for agreement to sell but a release deed. In the plaint Siri Bhagwan pleaded that cause of action to file the suit arose in the first week of September 2013 when he learnt that V.B.M.Estates had applied for mutation on the basis of release deed dated November 13, 2006 and on subsequent events. The suit was thus wrongly dismissed by the learned Single Judge holding it to be barred by limitation.”

8. That apart, in the case reported as (2007) 5 SCC 614 Hardesh Ores Pvt. Ltd vs. HED and Company, the Supreme Court held that whether the plaint discloses a cause of action or not is essentially a question of fact and the test to be applied is whether averments made in the plaint if taken to be correct in their entirely, a decree would be passed. It was held that the averments in the plaint have to be read as a whole and it was not permissible to cull out a sentence or a passage and to read it out of context in isolation.

9. In Rajesh Kumar Aggarwal and others (supra), the Supreme Court considering facts wherein the appellant before the Supreme Court had filed an application u/O VI R 17 read with Section 151 CPC seeking leave of the Court to amend the plaint, which was allowed by the learned Single Judge vide order dated August 31, 1994, which was set aside on an appeal by the Division Bench, held as under:- “14. Order 6 Rule 17 of CPC reads thus: "17) Amendment of Pleadings - The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." This rule declares that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The proviso enacts that no application for amendment should be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter for which amendment is sought before the commencement of the trial.

15. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.

16. Order VI Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.

17. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.

18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court.

19. 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.”