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This Order Of Mine Shall Decide The ... vs Ram Asra Mal & Ors on 13 April, 2015

IN THE COURT OF SH. PRANJAL ANEJA, LD. CIVIL JUDGE-06/
                                  CENTRAL
                      TIS HAZARI COURTS, DELHI
Suit. No. 696/14                                                13.04.2015
        SHAKUNTLA DEVI & ANR. V. RAM ASRA MAL & ORS.
                                       ORDER

1. This order of mine shall decide the application u/o VI Rule 17 CPC dt. 20.09.14 filed on behalf of the plaintiffs.

2. It is stated in the present application that the disputed portion i.e. described as 'roof over phatak' is an open space and the controversy regarding factum of its physical possession by either party cannot be completely adjudicated without adjudicating the issue of title and which would be possible only when the parties are allowed to litigate upon the relief of declaration as well. It is further stated that in earlier proceedings between the parties u/s 145 Cr. P.C. before Special Executive Magistrate, the disputed property by an order passed by it, stands sealed and it has been ordered that the parties to get their title decided from a competent Court of law. That plaint can be amended at any stage and PWs are under examination and testimony of DWs has not yet begun. Further stated that amendment would not change the nature and character of the suit.

Shakuntla Devi & Anr. V. Ram Asra Mal & Ors. On 13th April, 2015

3. In reply, it is stated that no specific set of proposed amendments have been averred in the application which even does not specify as to what the plaintiff is seeking. That the application is also time barred as much as a suit for declaration, if ever, could have been filed as far back as 1990 or at least within a period of three years from the filing of the present suit after WS was filed but no such amendment was sought from the year 2001 to 2014. That similar two applications in a similar suit pending between the same parties were dismissed. It is prayed that the present application be dismissed.

4. I have heard the arguments and perused the record.

5. The relevant provision i.e. Order VI rule 17 CPC, as applicable, needs to be reproduced as under for the sake of convenience:-

"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."

Shakuntla Devi & Anr. V. Ram Asra Mal & Ors. On 13th April, 2015

6. The proviso to this Rule 17 assumes much importance since the present suit is running in trial. Rather the plaintiffs, in the present application, have made one of the ground to be that the defendants have disputed the factum of possession of the suit property and therefore it has become necessary to seek the relief of declaration as well. It is therefore that the plaintiffs have to satisfy why they did not raise this issue of amendment for a long time after the filing of WS in the year 1998. The limitation for seeking declaration is three years and the plaintiffs, having not moved any amendment when the cause of action arose in the year 1998 i.e. when WS was filed, now cannot be allowed to amend the plaint as nothing has been shown as to despite due diligence why they could not move for amendment earlier. .

7. Another ground taken in the application is that the disputed property stands sealed by Special Executive Magistrate in proceedings u/s 145 Cr. P.C. in which it has been observed that parties would get their title decided from a competent Court. Although the date of this order of section 145 Cr.P.C. is not disclosed in the present application but the same is revealed from order dt. 10.10.13 passed by Sh. Shirish Aggarwal, Ld. Civil Judge-1 (Central), Delhi in CS No. 07/92 titled as "Shakuntla Devi & Anr. V. Ram Asre Mal" i.e. a suit between the same parties for the same suit property. The date of such order passed by Special Suit. No. 696/14 Page No. 3 of 5 Shakuntla Devi & Anr. V. Ram Asra Mal & Ors. On 13th April, 2015 Executive Magistrate is 08.05.2000. Even from this date the plaintiffs did not bother to move any amendment application despite relying heavily on this order.

8. There is no proposed amended plaint filed along with the present application. Even perusal of the present application shows that the same is vague in nature as the plaintiffs have not even disclosed what amendments are proposed to be carried out and in which paras of the existing plaint they are to be incorporated. It is simply stated that plaintiffs by way of this amendment want to seek the relief of declaration as well. Even the proposed relief of declaration is also not framed in the present application.

9. The above discussion with all the noted circumstances together point out that plaintiffs have taken another half hearted attempt to amend their suit after the plaintiffs have lost in a similar amendment application moved in the other suit detailed above wherein also it has been observed that the amendment application has been moved after the expiry of limitation period and without any justification.

10. Plaintiffs have absolutely failed to disclose any reason for not moving amendment earlier at the commencement of trial in spite of due diligence.

Shakuntla Devi & Anr. V. Ram Asra Mal & Ors. On 13th April, 2015

11. In view of the above discussion, the application is dismissed with a cost of Rs. 4,000/- (Rupees Four Thousand only) out of which Rs. 2,000/- (Rupees Two Thousand only) to be paid to the opposite party and Rs. 2,000/- (Rupees Two Thousand only) to be deposited with Prime Minister's National Relief Fund.

     Announced in open Court                         (PRANJAL ANEJA)
            on 13.04.2015                      CIVIL JUDGE-06, CENTRAL
                                                   THC/DELHI/13.04.2015




Suit. No. 696/14                                         Page No. 5 of 5
Shakuntla Devi & Anr. V. Ram Asra Mal & Ors.             On 13th April, 2015