Delhi High Court
Preetinder Singh Thapar vs Shri Hardeep Singh Thapar & Ors. on 4 November, 2015
Author: Manmohan Singh
Bench: Manmohan Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment pronounced on 4th November, 2015
+ I.A. No.5595/2013 in CS (OS) No.1146/2007
PREETINDER SINGH THAPAR ..... Plaintiff
Through Mr.Akshay Makhija, Adv. with
Ms.Sanjugeeta Moktan &
Mr.Siddharth Thakur, Advs.
versus
SHRI HARDEEP SINGH THAPAR & ORS. ..... Defendants
Through Mr.Varun Goswami, Adv. for
D-4.
None for other defendants.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. By way of this order, I propose to decide the abovementioned application filed on behalf of plaintiff under Order VI Rule 17 read with Section 151 CPC, for amendment of the plaint. The prayer is strongly opposed by the defendant No.4.
2. The plaintiff has filed the present suit seeking declaration, pre- emption of sale, cancellation of sale deed and permanent injunction which is pending adjudication before this Court.
3. The issues have been framed in the present suit vide order dated 1st May, 2012. The trial is yet to commence. In the meanwhile, the plaintiff has filed the present application. The plaintiff is seeking permission to amend his plaint to the effect of seeking a declaration that the partition deed dated 17th November, 2000 is a false and fabricated document, and as such, null & void and is liable to be cancelled. The defendant No.4 is the main contesting defendant who is CS (OS) No.1146/2007 Page 1 of 8 alleging title on the basis of sale deed dated 23rd April, 2007 for which the plaintiff has already sought the relief of cancellation.
In the said sale deed, it is alleged that there was an oral partition between the plaintiff and defendants No.1 and 2 with respect to the property bearing A-78, Malviya Nagar, New Delhi (hereinafter referred to as the 'suit property') and as such, the claim of defendant No.4 is based on oral partition.
4. It is contended by the plaintiff that during the pendency of the present suit, defendant No.4 has filed certain documents including the alleged partition deed dated 17th November, 2000. The defendant No.4 also filed a Deed of Assignment dated 28th July, 2010 whereby Kotak Mahindra Bank assigned their debt to defendant No.4.
5. Admittedly, the plaintiff had earlier sought an amendment to the plaint whereby in para 10 it was added in the pleadings that the alleged partition deed dated 17th November, 2000 is a forged and fabricated document; however, no relief for seeking declaration and cancellation with respect to the said partition deed dated 17 th November, 2000 was sought on account of the fact that the claim of defendant No.4 was based on an oral partition.
6. It is submitted on behalf of the plaintiff that while dismissing the application of the plaintiff under Order XXXIX Rule 2A CPC (I.A. No.12271/12) by order dated 5th February, 2013, it was observed by the Court that the plaintiff has chosen not to seek any declaration with respect to the registered partition deed dated 17th November, 2000. Therefore, in view of the said reason the plaintiff has now filed the present application for amendment of plaint to include a relief of declaration and cancellation with respect to the partition deed dated 17th November, 2000. The proposed amendment to the plaint are as follows :-
CS (OS) No.1146/2007 Page 2 of 8i) "14A. The defendant No.4 illegally got assigned the debt of defendant No.1 to himself from Kotek Mahindra Bank Ltd. vide Deed of Assignment dated 28th July, 2009. The said assignment has been held to be illegal by the Debts Recovery Tribunal, Delhi, vide its order dated 10th May, 2010. "
ii) Para 19 is sought to be amended as under:
"19. That the valuation of the suit for declaration is fixed at Rs.200/- and requisite court fee has been paid. The valuation of the suit for the purposes of permanent injunction is fixed at Rs. 130/- and requisite court fees has been fixed. The valuation of the suit for cancellation of sale deeds and possession is fixed at Rs.21 lakhs being the market value of the suit property. Ad-valorem court fees has been paid on the same. The valuation of the suit property for pre-emption of the sale deed dated 16th January, 2003 is fixed at Rs.5 lakhs as consideration reflected therein and court fee has been paid thereon. The valuation of the suit for the relief of declaration and cancellation of partition deed dated 17th November, 2000 is fixed at Rs.200/- and the requisite court fee has been paid thereon."
iii) In the Prayer Clause, the plaintiff seeks to add prayer (f):
"(f) pass a decree of declaration declaring the partition deed dated 17th November, 2000 as forged, fabricated, null & void and cancel the said partition deed."
7. In reply, the main objection is that the relief sought by the plaintiff in his application is time-barred claim as a fresh suit for the said relief would not be maintainable being barred by limitation. Hence, the prayer made in the application cannot be allowed. Further, in the amended plaint filed in September, 2009 the plaintiff was having CS (OS) No.1146/2007 Page 3 of 8 knowledge qua the partition deed dated 17th November,2000 and still the plaintiff did not choose to seek its cancellation or declaration till filing of the present application on 2nd April, 2013. The plaintiff is now trying to include the time barred relief which should not be as the amendment would cause prejudice to the case of the defendant No.4 who has acquired valuable right by virtue of not challenging the documents in question.
8. The counsel for the defendant No.4 has referred the following decisions in support of his submission:-
1. Revajeetu Builders and Developers v.
Narayanaswamy and Sons & Ors., 2009 (10) SCC 84
2. Hardesh Ores Pvt. Ltd v. Hede and Company, 2007 (5) SCC 614
3. Vijendra Kumar Goel v. Kusum Bhuwania, 1997 (11)SCC 457
4. Muni Lal v. Oriental Fire & General Insurance Co. Ltd and Ors., 1996 (1) SCC 90
5. Radkhika Devi v. Bajrangi Singh & Ors., AIR 1996 SC 2358
6. K.Raheja Constructions Ltd. v. Alliance Ministries & Ors., AIR 1995 SC 1768
7. Raj Kumari Garg v. S.M. Ezaz & Ors., (190) 2012 DLT 741
8. Davender Lal Mehta v. Dharmender Mehta & Anr., (160) 2009 DLT 22
9. There is no dispute with regard to the proposition laid down in the judgments referred on behalf of the defendant No.4. Therefore, it is to be examined as to whether these judgments have any bearing to the facts of the present case or not.CS (OS) No.1146/2007 Page 4 of 8
10. Rules of Limitation are meant to see that parties do not resort to dilatory tactics, but to seek their remedy promptly. It is a policy of Limitation Acts that those who sleep upon their claims should not be assisted by the Courts and equal policy behind those acts, in that there shall an end of litigation and protection shall be offered against stale demands. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct.
11. In the present case, the plaintiff has made the specific statement in para 10 of the plaint with respect to the partition deed already in existence being forged and fabricated. Para 10 reads as under:-
"10. That it is apparent from the lease and conveyance deed and absence of partition, that the property remained joint and undivided belonging to plaintiff, defendant No.1 and 2 respectively having undivided share. An interest of late Captain (Dr.)K.S. Thapar in A-78, Malviya Nagar, New Delhi-16, who died intestate devolved upon plaintiff, defendant No.1 and 2, who are heirs specified in class-I of the schedule to Hindu Succession Act and plaintiff being another heir has preferential right to acquire the interest of defendant No.1, who proposed to transfer his interest in the property to defendant No.3, who further transferred to defendant No.4. In view of not giving preference and notice to plaintiff under Section 22 of the Hindu Succession Act and clandestine alleged sale, is null and void and not binding on the plaintiff and the plaintiff has right to pre- empt to sale by paying Rs.5 lakhs to defendant No.1.''
12. The decisions referred by the leaned counsel for the defendant No.4 would have been directly applicable if such averments were not pleaded in para 10 of the plaint.
13. Counsel for the plaintiff has placed reliance on the decision of Supreme Court in A.K. Gupta and Sons Ltd. v. Damodar Valley CS (OS) No.1146/2007 Page 5 of 8 Corporation, AIR 1967 SC 96 wherein the Bench of three Judges held as under :
"It is not in dispute that at the date of the application for amendment, a suit for a money claim under the contract was barred. The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred; Weldon v. Neale, (1887) 19 QBD 394. But it is also well recognized that where the amendment does not constitute the addition of a new cause of action or more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation. See Charan Das V. Amir Khan 47 Ind App 255 (AIR 1921 PC 50) and L.J. Leach and Co Ltd. v. Jardine Skinner and C. 1957 SECURED CREDITOR 438 (AIR 1957 SC 357)
8. The principal reasons that had led to the rule last mentioned are first that the object of Courts and rules of procedure is to decide the rights of parties and not to punish them for their mistakes (Cropper v Smith. (1884) 26 Ch D700 (710-711) and secondly that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended (Kisandas Rupchand Vs. Rachappa Vithoba (1909) ILR 33 Bom 644 at p. 651, approved in Pirgonda Hongonda Patil Kalgonda Shidgonda, 1957 SCR 595 (603): (AIR 1957 SC 363 at p.
366).
10. "Now, how does the present case stand on these principles? Does the amendment introduce a new cause of action or a new case? We do not think it does. The suit was on the contract. It sought the interpretation of a clause in the contract only for a decision of the rights of the parties under it and for no other purpose. It was the contract which formed the cause of action on which the suit was based. The amendment seeks to introduce a claim based on the same cause of action that is the same contract. It introduces to new case of facts. Indeed the facts on which the money claim sought to be added is based are not in dispute. Even the amount of the claim now sought to be mode by amendment, was mentioned in the plaint in stating the valuation of the suit for the purpose of jurisdiction. The respondent had notice of it. It is quite clear CS (OS) No.1146/2007 Page 6 of 8 that the interpretation of the clause was sought only for quantifying the money claim. In the written statement the respondent specifically expressed its willingness to pay the appellant's legitimate dues which could only mean such amount as might be due according to the rates applicable on a proper interpretation of the clause. The respondent was fully aware that the ultimate object of the appellant in filing the suit was to obtain the payment of that amount. It was equally aware that the amount had not been specifically claimed in the suit because the respondent had led the appellant to believe that it would pay whatever the court legitimately found to be due. It in fact said in the written statement. If there was any case where the respondent was not entitled to the benefit of the law of limitation, the present is that one. The Respondent cannot legitimately claim that the amendment will prejudicially affect his right under the law for really he had no such right. It is a case in which the claim for money was in substance in the plaint from the beginning though it had not formally been made."
14. Counsel had also placed reliance upon the decision rendered by this Court in the case of Jitender Kaur v. Surinder Kaur & Ors., 184 (2011) DLT 661 and argued that the plaintiff in the present case is not setting up a new case on new cause of action; it was merely a mistake and the plaintiff cannot be penalized in view of technical objection raised by the other side. The issue raised by the plaintiff has to be determined after the trial. The suit cannot be thrown out at this stage without trial.
15. It is also settled law that as a general rule, the Court should not decline the amendments if fresh suit otherwise is maintainable which is not barred by limitation. In the present case the plaintiff has already challenged the documents in question by stating the partition deed being forged and fabricated. Thus, amendment cannot be declined. At this stage, conclusion cannot be drawn as to whether said averments are correct or incorrect. But if averments in the plaint are made, the CS (OS) No.1146/2007 Page 7 of 8 party has a right to lead evidence and to claim the relief which may or may not be correct.
16. Therefore, without expressing any opinion on merits, the prayer is allowed subject to the cost of Rs.20,000/- which shall be paid within two weeks from today. The defendant No.2 is at liberty to take the objection of limitation in the written statement, the same be filed within four weeks from today. Replication if any, be filed within two weeks thereafter.
17. List the matter before Joint Registrar on 18th January, 2016 for further proceedings.
(MANMOHAN SINGH) JUDGE NOVEMBER 04, 2015 CS (OS) No.1146/2007 Page 8 of 8