Delhi District Court
Sh. S. Manohar Singh vs Delhi Development Authority on 17 April, 2015
Page 1 of 8
IN THE COURT OF MS. NAVITA KUMARI BAGHA, ADJ01 (SOUTH),
SAKET COURTS, NEW DELHI
CS No. 150/13
Unique Case ID No. 02406C0221382012
Sh. S. Manohar Singh
S/o Sardar Sadhu Singh
R/o E166, Greater Kailash PartII,
New Delhi110048.
............ Plaintiff
Vs.
Delhi Development Authority
Through ViceChairman
Horticulture Division,
Laxmi Nagar, Delhi.
............ Defendant
Suit for Recovery of Rs.10,00,000/ on Account of Damages
ORDER:
1. Vide this order, I shall dispose of the application of plaintiff filed U/O. 6 R.17 CPC on 05.01.2015 for amendment of Plaint.
2. The brief facts of the suit as narrated in the Plaint are as follows:
"Plaintiff is a senior citizen who is a reputed person of the society with a highest status and defendant is a government agency engaged in the work of land allotment and development and other related matters. The plaintiff had purchased a land bearing Khasra No. 535/1, Kilokari from one Ram Narayan on 10.08.1992 and CS No. 150/13 S. Manohar Singh Vs. Delhi Development Authority Page 2 of 8 thereafter he had constructed two rooms and boundary wall on the said land. The defendant, with malafide intention to dispossess the plaintiff from the abovesaid land, got lodged a false and frivolous complaint to the police on 26.01.1996 against the plaintiff through one Surender Singh, employee of defendant and on the basis of said complaint, an FIR No.85/96 P.S. Srinivaspuri was registered against plaintiff U/Sec.447/34 IPC. The plaintiff had suffered tremendously due to said criminal case as he had to spend 16 good years of his life in undergoing the trial of said criminal case and has also suffered humiliation due to the defamation caused to his reputation. As the plaintiff was the rightful owner of the abovesaid land, so he was acquitted of the said criminal case and it was held by the Court that no offence of trespass was made out against him. Hence, he filed the present suit for recovery of damages on account of humiliation and harassment suffered by him."
3. In the Written Statement filed by defendant, the defendant had raised interalia preliminary objection that the suit was not maintainable due to nonservice of statutory notice U/Sec.53B of Delhi Development Act, 1957 prior to filing of the suit. Therefore, issue regarding the maintainability of the present suit was framed along with other issues vide order dated 23.01.2013. After the CS No. 150/13 S. Manohar Singh Vs. Delhi Development Authority Page 3 of 8 framing of the issues and fixation of the matter for plaintiff's evidence, the plaintiff filed his affidavit in evidence on 20.07.2013. Vide order dated 26.10.2013, the Ld. Predecessor Court fixed the matter for arguments on the issue no.2 i.e. "Whether the suit is barred U/Sec.53B of the DD Act?", being purely a legal issue. Thus, when the matter was fixed for arguments on this issue, the present application U/O.6 R.17 CPC was moved by the plaintiff.
4. In this application, the plaintiff has stated that at the time of tendering evidence, he came to know that inadvertently the letter dated 06.07.2012 written to the ViceChairman, DDA, claiming damages of Rs.10,00,000/, was not filed in the Court. He has further stated that he wants to add para no.28A, 28B, 28C & 29A in the Plaint for making mention about the said letter which should be treated as notice U/Sec.53B of Delhi Development Act.
5. No written reply was filed to the plaintiff's application U/O.6 R.17 CPC, though it was stated by the counsel for defendant that she was ready to straightway argue on the application without filing any written reply.
6. I have heard the arguments on this application from counsel Sh.
Rakesh Kakkar for plaintiff and counsel Ms. Promila Kapoor for defendant and perused the record.
CS No. 150/13 S. Manohar Singh Vs. Delhi Development Authority Page 4 of 8
7. The counsel for plaintiff has argued that the Court should adopt liberal approach while dealing with amendment application. Though, it is settled law that liberal approach should be adopted while dealing with amendment application but it is also settled law that the amendment can be allowed only if the conditions precedent, mentioned in the proviso to O.6 R.17 CPC, are met with. By reason of Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to O.6 R.17 CPC, which reads as under: "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."
Regarding the proviso to O.6 R.17 CPC, it has been held by the Hon'ble Supreme Court of India in Vidyabai & Ors. Vs. Padmalatha & Anr., AIR 2009 SC 1433, "It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial." Thus it is mandatory for the party seeking amendment to satisfy the precondition that in spite of due diligence, it could not raise the CS No. 150/13 S. Manohar Singh Vs. Delhi Development Authority Page 5 of 8 matter before commencement of the trial. The present application has been moved after the commencement of the trial as the application was moved when issues were already framed and affidavit of evidence filed by PW/plaintiff. It is held by the Hon'ble Apex Court in Vidyabai & Ors. Vs. Padmalatha & Anr. (Supra) that the trial is deemed to commence when after framing of issues, the witness files an affidavit in lieu of examinationinchief. Here, in the present case also, the witness/plaintiff had filed the affidavit of evidence when the application for amendment was moved. But despite moving the application after the commencement of trial, neither the plaintiff has pleaded nor satisfied the condition that in spite of due diligence, the matter could not be raised before the commencement of trial. It is pertinent to mention here that not even a single word is uttered in the entire application as to why it is moved at belated stage. It is not out of place to mention here that at the time of filing of present suit, the plaintiff had moved an application U/Sec.151 CPC for seeking exemption for not sending legal notice to defendant as required under Sec.80(2) CPC and Sec.53B of Delhi Development Act wherein he had specifically stated that he had not sent the required notice. When defendant filed its Written Statement, it took specific objection regarding suit being not maintainable due to nonissuance of statutory notice under Sec.53B Delhi Development Act and vide order dated CS No. 150/13 S. Manohar Singh Vs. Delhi Development Authority Page 6 of 8 23.01.2013, issues were framed which included the issue "whether the suit is barred U/Sec.53B of the DDA Act". But despite this, neither in the Replication nor in the affidavit of evidence, the plaintiff anywhere stated that he had issued such notice. Rather he had admitted that he had not issued the same. Now all of a sudden, he has come with present application, stating that he had issued letter/notice dated 06.07.2012 to the ViceChairman, DDA which is totally contradictory to his earlier stand. The counsel for defendant has vehemently argued that neither such notice was ever issued by the plaintiff nor received by the defendant and that the alleged notice is a forged document. I find force in her contention as neither in the Plaint nor in the Replication nor even in the affidavit of evidence, there is any mention of said notice. Rather it had been specifically admitted by the plaintiff in his application U/Sec.151 CPC for exemption from sending such notice that no such notice was issued by him. Moreover, it is also not mentioned in the present application that where this notice was lying that it could not be filed earlier. Even if it is presumed for the sake of arguments that this letter was not traceable earlier (though it is not pleaded so by the plaintiff), yet there was no bar regarding mentioning about it in the Plaint or Replication or evidence ! No explanation is given by the plaintiff in this regard. It is nowhere pleaded that the said notice could not be brought on record or no mention could be made about CS No. 150/13 S. Manohar Singh Vs. Delhi Development Authority Page 7 of 8 it before the commencement of trial despite exercise of due diligence. It has been held by the Hon'ble Apex Court in Vidyabai & Ors. Vs. Padmalatha & Anr. (Supra) that the proviso appended to O.6 R.17 CPC restricts the power of the Court as it puts an embargo on exercise of its jurisdiction which is limited in a case of this nature. It is further held that unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment. It is not the case of the plaintiff that the facts which he wants to incorporate by way of amendment, were not within his knowledge prior to commencement of the trial or that he is an illiterate person who signed the Plaint, Replication or Affidavit of evidence without knowing their contents. In Vidyabai & Ors. Vs. Padmalatha & Anr. (Supra), the defendants had moved application for amendment of their Written Statement by stating that the materials and information necessary for drafting proper Written Statement was not within their knowledge. But the same was dismissed by the Trial Court by holding that from the facts and circumstances of the case, it could not be said that they were not having knowledge of the same. Though the rules regarding amendment of Written Statement are more liberal than the amendment of Plaint, yet the Hon'ble Supreme Court, in the above case, had upheld the order of the Trial Court and held that the respondents/defendants had not been able to fulfill the precondition CS No. 150/13 S. Manohar Singh Vs. Delhi Development Authority Page 8 of 8 that in spite of due diligence they could not have raised the matter before the commencement of trial. In the present case also, as held earlier, the plaintiff has failed to satisfy the abovesaid precondition of proviso to O.6 R.17 CPC and hence not entitled to seek amendment in the Plaint. Accordingly, the application of the plaintiff U/O.6 R.17 CPC is dismissed.
(Announced in open Court on 17.04.2015) (Navita Kumari Bagha) ADJ01, South District, Saket Courts, New Delhi CS No. 150/13 S. Manohar Singh Vs. Delhi Development Authority Page 9 of 8 CS No. 150/13 S. Manohar Singh Vs. Delhi Development Authority 17.04.2015 Present: None.
Vide separate order, plaintiff's application U/O.6 R.17 CPC is dismissed.
Put up on 02.07.2015 for arguments on preliminary issue.
(Navita Kumari Bagha) ADJ01 (South), New Delhi.
17.04.2015 CS No. 150/13 S. Manohar Singh Vs. Delhi Development Authority