Delhi District Court
Dharmarth Trust Mandir vs State on 1 March, 2011
IN THE COURT OF SHRI VIMAL KUMAR YADAV: ADDL. DISTRICT JUDGE
II (NORTH): DELHI
CS No.02/10
Dharmarth Trust Mandir
Shri Laxmi Narainji Maharaj ... Petitioner
Versus
State ... Respondent
ORDER
The petitioner has sought amendment in the pleadings by way of application under disposal under Order 6 Rule 17 CPC seeking that the plaintiff may be permitted to incorporate the plea to the effect that the plaintiff may be permitted to sell the property in question in piecemeal as and when possible, to the tenants or to the prospective buyers in the interest and for the betterment of the trust. The proposed amendment is specifically mentioned in para 3 of the application wherein proposed para 15(a) is sought to be inserted in the plaint. There is no contest to the application as none has come forward to contest the claim of the plaintiff inasmuch as it is the state alone which has been impleaded as defendant.
It is submitted by the counsel for the plaintiff that the benefit and betterment of the trust, is if paramount importance and as trust is unable to maintain its properties from the meager rent income, which it is getting, therefore, the suit initially in which the present application has been moved, seeking permission to sell some of the properties so that the other CS02/10 1 properties of the trust could be maintained in a proper manner. The primary reason being insufficiency of fund with the trust to maintain and run the activities of the Trust so much so that the expenses of the Trust are more than the income being generated by the Trust. Counsel for the plaintiff in order to buttress his arguments relied upon certain judgments that is Ramchandra Vs. Rajendra Shrikrishna Deshmukh & others AIR 2007 SC 2577, Andhra Bank Vs. ABN Amro Bank AIR 2007 SC 2511, Jeevan Kumar Mehan Vs. Praveen Verma 176 (2011) DLT 185, Gurdial Singh Vs. Raj Kumar Aneja (2002) SCC 445, Jai Jai Ram Manohar Lal Vs. National Building Material Supply AIR 1969 SC 1267 and L. Narayan Reddy Vs. P. Narayan Reddy AIR 2005 Madras 66. It is asserted that notwithstanding the fact that one of the witnesses has been examined, still in exceptional circumstances, even the amended Order 6 rule 17 CPC does not prohibits the amendment which may be carried out in the pleadings.
A party who is seeking amendment should be able to reflect that the proposed amendments are necessary for the purpose of adjudicating upon the real controversy in question between the parties and inspite of due diligence the party was not able to raise those issues touching the amendment prior to the commencement of the trial. In the instant case, since there is no contest and the defendant has been proceeded exparte, therefore, in strict sense the trial has not begun as issues have not been framed. Nevertheless, the recording of the evidence has been commenced CS02/10 2 which, in fact, is akin to the commencement of the trial. The plaintiff has to show that the proposed amendment is necessary and despite due diligence the plaintiff was not able to incorporate the fact before the commencement of the trial, if not at the outset. In the absence of any contest, there appears no controversy. The contention that earlier this fact was not incorporated since there was A buyer who intended to purchase the entire property but now he has backed out. Now, the prospective buyers are available in fact are the tenants who are already occupying parts of the property. A sale certificate would be required each time to sell the property, which may in turn result into complications, if the property is sold in piecemeal, therefore, the proposed amendment is necessary in order to facilitate the ultimate purpose.
Counsel for the plaintiff has not been able to show or place on record the initial agreement, which when asked from the counsel for the plaintiff and one of the trustees, following up the case stated that there was no formal written agreement rather it was orally agreed by some one to purchase the entire property, therefore, the plaintiff is not in a position to substantiate the contention.
Nevertheless presuming that what has been contended is correct then what emerges on record is that the plaintiff is trying to have a blanket order or liberty in his hand to sell the property at the Will of the Trust (trustees) in piecemeal and that is why the proposed amendment has been CS02/10 3 sought. Since it has nothing to do with the controversy, therefore, it does not appears to be convincing plea on which the amendment should be allowed. On the other hand, if the interest of the trust is considered to be of paramount importance and the facts narrated by the plaintiff in the plaint are considered to be true, then it appears that the plaintiff should be given an opportunity to have the pleadings the way it want inasmuch as it will have to be proved that such relief can be given, then only this amendment would be of some consequence. Even otherwise, the basic case again is that the plaintiff ultimately seeks the permission to sell the properties of the Trust. It is in one go or in piecemeal is the only issue raised through the application. If it is ultimately found that the Trust need to be given the permission to sell some of the properties, then why cannot it be in piecemeal.
The other side of the coin is that the situation like one narrated by the plaintiff is there, then of course the plaintiff Trust would again be burdened with more financial constraints to seek permission every time it gets a buyer from the court, the possibility cannot be ruled out that by the time the permission is granted the buyer may have backed out. Thus keeping in view this aspect, the proposed amendment seems to have some strength. As such the application moved on behalf of the plaintiff is allowed being maintainable. As such the amended plaint may be filed accordingly.
Announced in open court (VIMAL KUMAR YADAV)
on 01.03.2011 Addl. District JudgeII (North)
Delhi
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