Delhi District Court
Anju Bhasin vs M/S Gimret And Co on 16 October, 2012
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IN THE COURT OF DIG VINAY SINGH, ADJ (CENTRAL) 04,
TIS HAZARI COURTS, DELHI
CS NO.437/08/98
Anju Bhasin ..... Plaintiff.
Vs.
M/s Gimret and Co. ..... Defendant.
16.10.2012
ORDER
1. An application under Order 6 Rule 17 CPC, filed by the plaintiff, seeking amendment in the plaint and another application under Order 22 CPC, filed by Sh. S.K. Batra, are subject matter of this Order.
2. Briefly stated, the present suit is filed by the plaintiff seeking possession of and recovery of mesne profits in respect of plot No. 403, Tolstoy House, Tolstoy Marg, Connaught Place, New Delhi. This property was let out in the year 1976 under a lease deed on a monthly rent of Rs.2, 381.25 plus maintenance and other charges. As per plaintiff, it was provided in the lease deed that 15% rent can be increased after every three years. The property was leased to M/s Gimret and Co., who was in occupation of this premises. M/s Gimret and Co was a partnership firm. Premises was let out to the partnership firm through Mr. Dwarka Nath Batra one of the partner.
CS. No.437/08 Anju Bhasin Vs. Gimret & Co. dtd 16.10.2012. Page No.1 of 12 h.l.
-2-The suit was filed against the partnership firm, through its partners. We need not go into other details of this plaint being not required for considering the present application under Order 6 Rule 17 CPC.
3. In this application the plaintiff seeks a formal amendment to the effect that instead of partnership firm M/s Gimret and Co., now its proprietor Dr. S.K. Batra be impleaded as a defendant. It is claimed that after filing of the suit the plaintiff came to know from the opposite party that Sh. Dwarka Nath Batra has expired and since it was a partnership firm of two partners only, therefore it stood dissolved upon the death of one partner. The second partner was Dr. S.K. Batra and now M/s Gimret and Co. is a proprietorship firm of Dr. S.K. Batra. Consequently the plaintiff wants to amend the description of the defendant in Para 2 of the plaint.
4. The defendant opposes this application on the ground that it is barred by limitation; the plaintiff was well aware of death of Dwarka Nath Batra even before filing of the suit but deliberately did not admit this fact as after the death of Dwarka Nath, rent is being paid by Dr. S.K. Batra as proprietor of M/s Gimret and Co.; no statutory notice as required under Section 106 of Transfer of Property Act was served on Dr. S. K Batra; the suit as filed was against a non- existence firm and therefore, a nullity; the plaintiff is seeking to add time barred relief; amendment would change the basic nature of CS. No.437/08 Anju Bhasin Vs. Gimret & Co. dtd 16.10.2012. Page No.2 of 12 h.l.
-3-the suit and the character of the suit; a new cause of action is sought to be added. It is also argued that earlier the plaintiff filed an application under Order 12 Rule 6 CPC and when all these objections were raised as to the non-existence of the partnership firm, the present application for amendment was filed on 25.09.2009.
5. Both the sides have been heard on this application and both the sides have filed large number of judgments in support of their claims. The plaintiff has relied upon following cases in support of her application:
Sobhag Narain Mathur Vs. Pragya Agarwal and Ors., 2008 (106) DRJ 355.
Mahendra Singh Gehlot Vs. Gopal Arora & Ors., RLW 2008 (4) Raj.3681.
Surender Kumar Sharma Vs. Makhan Singh, MANU/SC/674/2009 Revajeetu Builders and Developers Vs. Narayanaswamy and Sons, MANU/SC/1724/2009 Gaganmal Ramchand Vs. The Hongkong & Shanghai Banking Corporation, AIR 1950 Bom 345 Wasudhir Foundation Vs. C.Lal & Sons, 45 (1991) DLT 556. Suraj Bhan Anil Kumar & Anr. Vs. Molu Ram Kapoor Chand, 1991 VI AD (Delhi) 640. L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., AIR 1957 SC 357. The Singer Company Ltd. Vs. Chetan Machine Tools & Ors., 159 (2009) DLT 135 Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, AIR 1969 SC 1267. Bharat Petroleum Corporation Ltd. Vs. Precious Finance Investment Pvt. Ltd., 2006 (6) ALLMR 771,
CS. No.437/08 Anju Bhasin Vs. Gimret & Co. dtd 16.10.2012. Page No.3 of 12 h.l.-4-
Puran Ram Vs. Bhaguram and Anr, AIR 2008 SC 1960, Sampath Kumar Vs. Ayyakannu & Anr., AIR 2002 SC 3369 Pradeep Anup Trust Vs. Sh.A.K.Burman 75 (1998) DLT 314
6. The law laid down in the above mentioned judgments is to the effect; that even after a plaint is covered under Order 7 Rule 11 CPC for rejection still amendment application can be allowed in favour of the plaintiff; at the stage of consideration of amendment application the merits of the case are not be gone into, as it would be a matter of trial; all those amendments which are necessary for complete and fair adjudication of the case must be allowed; amendments which do not take away an admission or right created in favour of other party should be liberally allowed; mere delay is no ground of rejection of amendment application unless it is coupled with malafides; formal amendments as to the mis- description of parties and other similar formal amendments must be allowed; technicalities cannot be allowed to defeat the ends of justice; for the delay caused the opposite party can be duly compensated; delay alone cannot be a ground for rejection of amendment and amendments before commencement of trial should be liberally allowed and; that a trial commences only when the affidavit-in-evidence of a witness is formally tendered and the witness is examined in the Court.
7. In the case of Revajeetu Builders (Supra), it was held that the rule of beyond limitation, however, is not universal one and CS. No.437/08 Anju Bhasin Vs. Gimret & Co. dtd 16.10.2012. Page No.4 of 12 h.l.
-5-under certain circumstances, such amendment may be allowed by the court notwithstanding the law of limitation. It was also held in that case that amendment seeking to correct the defect in the pleading should be allowed when the quality and quantity of relief sought remains the same, since it does not introduce a new case against the defendant.
8. The plaintiff has also relied upon the cases of Bharat Petroleum Corporation Ltd. Vs. Precious Finance Investment Pvt. Ltd., 2006 (6)ALLMR 771, Badrinarayan Bansilal Somani Vs. Vinod Kumar K. Shah, 2003 (3) Bom CR 231 and Anant Gopal Sheorey Vs. The State of Bombay, 1958 Cri LJ 1429, to put across the point that proviso of O. 6 R. 17 CPC would not apply to the pleadings which were filed prior to 01.07.2002.
9. Similarly the plaintiff has also laid stress on the judgment in case of Puran Ram Vs. Bhaguram and Anr, AIR 2008 SC 1960, wherein it was observed that Court may, in its discretion, allow the application for amendment of the plaintiff even where the relief sought to be added by amendment is allegedly barred by limitation. Same is the observation of Hon'ble Supreme Court in the case of Pankaja and Anr. Vs. Yellappa (dead) by LRs and others, AIR 2004 SC 4102. In the case Puran Ram(Supra), it was also observed that since the name in which an action was instituted was merely a mis-description in the original plaint, no question of limitation arises; on amendment the plaint must be deemed to have CS. No.437/08 Anju Bhasin Vs. Gimret & Co. dtd 16.10.2012. Page No.5 of 12 h.l.
-6-been instituted in the name of the real plaintiff on the date on which it was originally instituted. In the case of Sardar Hari Bachan Singh Vs. Maj. Harbhajan Singh, (1975) 77 P.L.R. 21, Hon'ble Supreme Court observed that it is well settled that however, negligent or careless may have been the first omission and however, late the proposed amendment, the amendment should be allowed if it can be made without injustice to other side.
10. The plaintiff has also relied upon the case of Khaja Begum Vs. Gulam Moiuddin & Ors. AIR 1976 AP 65 wherein it was held that even where a suit is instituted against a dead person for recovery of debt, subsequent attempt to bring legal representatives on record would be maintainable and it cannot be questioned on the ground that the suit itself was not maintainable against dead person.
11. In the case of Gulzari Lal Grover Vs. VII Additional District Judge & Ors. MANU/UP/0319/2009, it was held that even if one of the partner was dead, at the time when the suit was filed against the firm and its two partners, it cannot be said that the suit was in nullity in the eyes of law merely because one of the partners was dead before the institution of suit. It was held that at the best the suit instituted could be held to be defective or not properly instituted which can be cured U/s 153 of CPC or Under Order 1 Rule 10 CPC or Under Order 22 Rule 4 CPC.
CS. No.437/08 Anju Bhasin Vs. Gimret & Co. dtd 16.10.2012. Page No.6 of 12 h.l.
-7-12. The case of Sh.Ram Prasad Vs. State Bank of Bikaner & Ors. AIR 1972 Allahabad 456; Md. Zamiruddin & Ors. Vs. Mrs. Fatima Ahmad & Ors. AIR 1978 Patna 153 and the case of Kuttappa Vs. Katrikolli Somiah ILR 1991 Karnatak 3985 are all distinguishable on the facts.
13. On the other hand the defendant has relied upon the following four cases:
Mukesh Kumar Jain Vs. Ashok Shukla, 2006 IX AD (Delhi)
629. Union of India Vs. Ganga Datta and Ors., AIR 1971 Delhi
65.
Pratap Chand Mehta Vs. Smt. Krishna Devi Mehta, AIR 1988 Delhi 267.
Jagatjit Ind. Corp. Vs. Union of India, 1974 Rajdhani Law Reporter 286.
14. The counsel for the defendant has argued that the four judgments relied upon by him in support of his application under Order 22 Rule 4 CPC, dis-entitles the plaintiff from amendment. In the case of Mukesh Kumar Jain Vs. Ashok Shukla, 2006 IX AD (Delhi) 629, relied upon by the defendant it was held that where the substitution of the legal representative was barred by limitation and the suit has been filed against a dead person, it cannot be CS. No.437/08 Anju Bhasin Vs. Gimret & Co. dtd 16.10.2012. Page No.7 of 12 h.l.
-8-allowed in terms of Article 35 of the Limitation Act r/w Order 22 Rule 4 CPC.
15. In the case of Union of India Vs. Ganga Datta and Ors., AIR 1971 Delhi 65, it was held that delay was not specifically explained for substitution of legal representative after the death of the respondent of that case. The Revision Petition in that case was filed against a dead person and it was dismissed.
16. The case of Pratap Chand Mehta Vs. Smt. Krishna Devi Mehta, AIR 1988 Delhi 267, holds that a suit filed against the dead defendant is a nullity and the case of Jagatjit Ind. Corp. Vs. Union of India, 1974 Rajdhani Law Reporter 286, holds that after all the partners of a firm died even legal representative of one of the partners cannot continue with the proceedings and LRs of all of them must be brought on record.
17. In the present case, it is an admitted case of Dr. S.K. Batra that he was one of the partner of M/s Gimret and Company which was inducted as a tenant. It is also an admitted case that after death of one of the two partners i.e. his father and after automatic dissolution of partnership firm he succeeded to M/s Gimret and Company, which is now his Proprietorship concern. It is also an admitted position that he has been paying rent as proprietor of M/s Gimret and Company to the plaintiff.
CS. No.437/08 Anju Bhasin Vs. Gimret & Co. dtd 16.10.2012. Page No.8 of 12 h.l.
-9-18. In Rajesh Kumar Aggarwal & Ors. Vs. K.K. Modi and Ors. JT 2006 (3) SC 607, it was observed:-
"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........... "
19. In South Konkan Distilleries v. Prabhakar Gajanan Naik AIR 2009 SC 1177 It was observed;
"It is well settled that the Court must be extremely liberal in granting the prayer for amendment, if the Court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment shall suffer irreparable loss and injury. It is also equally well settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the Court to allow an amendment if it is of the view that allowing of an amendment shall really subserve ultimate cause of justice and avoid further litigation."' CS. No.437/08 Anju Bhasin Vs. Gimret & Co. dtd 16.10.2012. Page No.9 of 12 h.l.
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20. In L. J. Leach and Co. Ltd. and Anr. vs. M/s. Jardine Skinner and Co. [AIR 1957 SC 357], at paragraph 16 of the said decision it was observed as follows :-
"It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interest of justice." Also see T.N. Alloy Foundry Co. Ltd. vs. T.N. Electricity Board and Ors. [(2004) 3 SCC 392]
21. Again in Vineet Kumar vs. Mangal Sain Wadhera [AIR 1985 SC 817] Court held that if a prayer for amendment merely adds to facts already on record, the amendment would be allowed even after statutory period of limitation.
22. Trial in the present case has not yet commenced. Evidence of the plaintiff has not been tendered by way of affidavit on oath. It was held in the case of Sobagh Narain Mathur Vs. Pragya Aggarwal & Ors. 2008 (106) DRJ 355, by Hon'ble Delhi High Court that when, although the affidavit of plaintiff is filed but the witness was yet to be examined, the delay in seeking amendment cannot be fatal. In the present case also, the witnesses of the plaintiff have not yet been formally examined and in these CS. No.437/08 Anju Bhasin Vs. Gimret & Co. dtd 16.10.2012. Page No.10 of 12 h.l.
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circumstances, the amendment application cannot be rejected. The amendment sought by the plaintiff is formal in nature as the suit was instituted against M/s Gimret and Company which though became nonexistence at the time when the plaint was instituted but admittedly it is this very M/s Gimret and Company which is paying rent through Dr.S.K.Batra as his proprietor. Allowing amendment of the plaint would also curb multiplicity of the litigation between the parties. Amendment is not trying to take away any admission in favour of the defendant. Neither is it introducing a new cause of action nor is it changing nature of the suit which shall remain the same. Therefore, in my considered view, the amendment application ought to be allowed.
23. The amendment application is allowed. Let the plaintiff file amended plaint.
24. Turning the application under Order 22 Rule 4 CPC filed by the defendant. The defendant seeks dismissal of the suit on the ground that the partnership firm against which the suit was filed was not in existence at the time when the suit was instituted. The four judgments relied upon by the defendant as mentioned above does not help the case of the defendant as they are distinguishable on the facts of the case. In the present case after the amendment application has been allowed. At the most, in the present case the suit can be said to be not properly instituted as the partnership firm CS. No.437/08 Anju Bhasin Vs. Gimret & Co. dtd 16.10.2012. Page No.11 of 12 h.l.
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stood dissolved on the date when the suit was filed. It is a technical defect which can be corrected. It has been repeatedly held by Hon'ble Supreme Court and Hon'ble High Court that mere technicalities cannot be allowed to come in the way of dispensing justice. It is an admitted case of S.K.Batra that after death of his father, Gimret & Company, which was earlier a partnership firm became his sole proprietorship concern. It is also his admitted case that he is paying rent as proprietor of Gimret & Company. No prejudice is going to be cause to the defendant if the suit is allowed to be continued. The amended plaint would be deemed to have been instituted from the date of original plaint. The application under Order 22 Rule 4 CPC filed by the defendant thus does not survive and is liable to be dismissed.
Announced In the Open Court on 16th Day of October, 2012.
DIG VINAY SINGH ADJ (Central) 04 Delhi CS. No.437/08 Anju Bhasin Vs. Gimret & Co. dtd 16.10.2012. Page No.12 of 12 h.l.