Delhi High Court
Smt Rama Goel vs Mr. Moti Gupta on 10 February, 2015
Author: Manmohan Singh
Bench: Manmohan Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment pronounced on : 10th February, 2015
+ CS (OS) No.2008/2009 & I.A. No. 667/2013, I.A. No. 668/2013
& I.A. No. 669/2013.
SMT RAMA GOEL .....Plaintiff
Through Mr. Udayan Jain, Adv. with Mr. Nalin
Kumar Jain, Adv.
versus
MR. MOTI GUPTA .....Defendant
Through Mr. Alok Sinha, Adv.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. By way of this order I propose to decide the following applications :
i) I.A. No.667/2013 (Order 6 Rule 17 read with Section 151 CPC) for amendment of the plaint to bring on record the subsequent events which have taken place post commencement of the trial and to seek additional reliefs of damages and compensation.
ii) I.A. No.668/2013 (Order 7 Rule 14(3) read with Section 151 CPC) for taking on record the additional documents which have come into existence subsequent to the commencement of the trial.CS (OS) No.2008/2009 Page 1 of 18
iii) I.A. No. 669/2013 for admitting the additional documents on record and permitting the re-examination of plaintiff to prove them.
2. It is stated in the application being I.A. No.667/2013 that the present application is the second application for amendment of the plaint of the suit to bring on record the subsequent events which have taken place post commencement of the trial of the suit. The first application for amendment was dismissed by this Court on 20th November, 2012 on the grounds that the plaintiff had sought extensive amendments and has failed to disclose the dates on which the subsequent events had come to her knowledge, the dates of application and delivery of the certified copies and also on account of plaintiff not filing the certified copies on record of the case. The F.A.O No. 608/2012 filed by the plaintiff was dismissed as withdrawn on the submissions of the counsel of the plaintiff that fresh applications shall be filed by her before this Court to bring on record the facts and documents which are germane and have arisen subsequent to the framing of the issues.
3. The present suit is for declaration, permanent injunction and restoration of possession of property at A-48, 2nd Floor, Gujranwala CGHS, Vikaspuri, New Delhi-18. The defendant No.1 by way of registered Agreement to Sell and GPA transferred the suit property in favour of defendant No.2. The registration of the documents dated 22nd December, 2008 has been cancelled subsequent to the commencement of trial by way of order of Sub-Registrar-II dated 9th March, 2012 finally confirmed when proceedings in show-cause CS (OS) No.2008/2009 Page 2 of 18 notice for recall of the said order have been closed on 17th December, 2012.
4. It is stated that after the dismissal of the first application there are events which have changed the conspectus of the case, even otherwise the present application is being filed limited to the two events which have arisen subsequent to the commencement of trial along with application for bringing on record those relevant documents supported by the subsequent facts and for additional of relief towards mesne-profits and damages. It is further stated that these events and documents are germane to the issue and will be of assistance in settling the controversy between the parties and it will be important to bring on record the facts along with supporting documents to show how plaintiff was a victim of a fraud and plaintiff's suit deserves to be decreed in favour of the plaintiff.
5. The entire chain of events relating to the subsequent facts post commencement of the trial are mentioned in para 4 of the application and under the aforesaid chain of circumstances the plaintiff had not delayed in filing the amendment application for bringing on record the subsequent events which had seen the light of the day after the commencement of trial of the suit. Throughout the trial of the suit, the plaintiff had never sought any adjournment in the case nor had she obstructed the recording of the evidence of her witness.
6. It is further stated that the plaintiff, NRI at Dubai is a housewife and is handicapped in the prosecution of her case on account of her frequent travelling and is completely dependent on the advise of counsel engaged by her.
CS (OS) No.2008/2009 Page 3 of 187. The defendants after manipulation of the registration of Agreement to Sell and GPA dated 22nd December, 2008 had criminally trespassed in the plaintiff's flat and illegally usurped all the household effects kept in the flat. Therefore, the plaintiff in addition to the grant of relief of possession is also entitled to seek the relief of grant of mesne profits and damages for illegal use and occupation of her flat and usurpation of the household goods kept in the flat against the defendants.
8. By way of this application the plaintiff seeks addition of paras 4,7,9 as well as in the prayer clause, details of which are mentioned in para 9 of the application.
9. By way of second application i.e. I.A. No.668/2013, the liberty is sought to take on record the documents as the same are to go to the root of the controversy between the parties.
10. The said documents are public record and it is submitted that these are important for the trial of the case. Following are the documents which plaintiff craves leave to place on record :
i. Order of Sub-Registrar-II dated 9th March, 2012 with cancelled copies of Agreement of Sale and GPA dated 22nd December, 2008.
ii. Charge sheet dated 4th May, 2012.
iii. Copy of letter of Sub-Registrar-II dated 24th November,
2012.
iv. Copy of letter of Sub-Registrar-II dated 17th December,
2012.
11. It is prayed that no prejudice would cause to the defendants in case the same are allowed to be taken on record.CS (OS) No.2008/2009 Page 4 of 18
12. First, I shall take up the application No.667/2013 filed by the plaintiff for amendment of the plaint.
13. The following new paras be added after para 3 of the plaint:
4-A. That on the pending representations of the plaintiff, the Sub-
Registrar-II, Janakpuri, Delhi on the orders of Chief Minister & Secretary (Revenue) NCT of Delhi had conducted enquiry and found the execution and registration of the Agreement to Sell and GPA dated 22nd December, 2008 executed by defendant No. 1 in favour of defendant No.2 to be based on fraud, concealment of material facts and in violation of law. With the approval of the Registrar, West and lGR/Divisional Commissioner, Delhi Sub-Registrar-II vide its order dated 9th March, 2012 has cancelled the registration of aforesaid two documents and endorsement of the order has been made in the relevant records.
4-B. That on the representations of the plaintiff the SDM, Patel Nagar on the orders of Secretary (Revenue) on 17th November, 2011 had directed SHO, Janakpuri to register an F.I.R. against the defendants in the matter of fraud, cheating, violation of Benami Transactions (Prohibition) Act and angle of money laundering. SHO, Janakpuri on 20th November, 2011 had registered F.I.R. No. 391 of 2011 under Section 420/4681471134 IPC against the defendants. Investigating Officer after investigation has filed the charge sheet against the defendants in the case on 4th May, 2012 in the Court of A.C.M.M., Tis Hazari Courts, Delhi which after taking cognizance in the matter has proceeded with trial.CS (OS) No.2008/2009 Page 5 of 18
4-C.That the defendant No.1 and defendant No.2 after manipulating the fraudulent registration of agreement of sale & GPA dated 22nd December, 2008 in respect of disputed flat had some time onIafter 14th October, 2009 have broke open the lock of her flat, usurpedIstolen all the household effects of the plaintiff and thereafter are continuing in illegal occupation of the same.
4-D. The defendant No. 1 and defendant No.2 are continuing in illegal possession of the property of the plaintiff and have also usurpedIstolen all her household effects kept in the flat and detailed below worth about Rs. 2,25,000.00 (Rupees Two Lac and Twenty Five Thousand Only). Plaintiff since then is deprived of use and occupation of her flat and she is suffering from continuous losses on account of her dispossession from the flat at the hands of the defendants. Plaintiff is legally entitled to recover from the defendants' mesne profits for illegal use and occupation at the rate of Rs.20,000.00 per month which is the minimum rental value of the flat since 14th October, 2009 till pendency of the suit and in future till actual eviction of the defendants from her flat and handing of actual physical possession to the plaintiff. Further the plaintiff is entitled to recover from the defendants the cost of the household effects valuing Rs.2,25,000.00 ( Rupees Two Lac and Twenty Five Thousand Only) detailed below:-
Details of the Plaintiff's House hold articles Amount in Rs.
1. Two Wooden Double Beds with beddings 30,000.00
2. Two Steel Almirah 10,000.00
3. Sofa Set with central table and two side tables 30,000.00 CS (OS) No.2008/2009 Page 6 of 18
4. Two coolers 10,000.00
5. One Colour T.V. 15,000.00
6. One Fridge 5,000.00
7. Dining Table & 6 chairs 30,000.00
8. Bookshelves with books 10,000.00
9. Kitchen utensils, gas stove, gas cylinder, microwave oven, mixi, toaster etc. 40,000.00
9. Two electric Geysers 5,000.00
10. Clothes of the family 20,000.00
11. Important family documents & Miscellaneous items 20,000.00
-----------------
Total Rs. 2,25,000.00
-----------------
B. That the following be added two lines before end of para 7 after the word ' in her favour':
"That the cause of action arose some time on or after 14th October, 2009 when defendants trespassed into the property of the plaintiff."
C. That at the end of para 9 of the plaint the following be added :
"the suit is valued at Rs. 7,20,000/- for recovery of mesne profits for the unlawful use and occupation of the flat by the defendant No. 1 and 2 from 9th November, 2009 till 8th November, 2012, and the requisite Court fees is accordingly paid by the plaintiff and the suit is further valued at Rs.2,25,000.00 (Rupees Two Lac and Twenty Five Thousand Only) the value of house hold effects of the plaintiff illegally usurped and stolen by the defendants and the requisite Court fees is accordingly paid by the plaintiff. The plaintiff shall pay the requisite court fee on the future mesne profits granted by the Court in execution."
D. In the existing prayer the new prayer clause (d-1) and (d-2) be incorporated :
(d-1) Pass a decree of recovery for a sum of Rs.
7,20,000.00 (Rupees Seven Lac and Twenty Thousand Only) against the defendant No.1 and CS (OS) No.2008/2009 Page 7 of 18 Defendant No.2 for recovery of mesne profits for illegal use and occupation of the flat for the period from 9th November, 2009 till 8th November, 2012 along with mesne profits at the rate of Rs. 20,000.00 along with interest at the rate of 18% under the peculiar facts and circumstances of the case. This Court may further be pleased to pass a decree for mesne profits for the illegal use and occupation of the suit premises during the pendency of the suit and till the delivery of possession of the flat after actual physical eviction of the defendant No.1 and defendant No.2 or their legal heirs, agents, representatives and survivors at the rate of Rs. 20,000/- or any higher incremental amount as this Court deem fit and necessary along with interest at the rate of 18% per month.
(d-2) Pass a decree for a sum of Rs. 2,25,000.00 (Rupees Two Lac and Twenty Five Thousand Only) with interest @ 18% per annum during the pendency of the suit till its recovery be passed against defendant No.1 and defendant No.2 as damages for illegal usurpingI theft of the house hold effects of the Plaintiff kept in her flat.
14. The prayers in both applications are opposed by the counsel for the defendants mainly on the ground that the amendment is sought after commencement of trial, thus, under the provisions of Order 6 Rule 17 CPC, the amendment cannot be allowed and defendants sought to be taken on record, can be placed on record as the plaintiff CS (OS) No.2008/2009 Page 8 of 18 was aware about these documents, these ought to have been filed before the admission/denial of documents. The details of events and the subsequent facts post commencement of the trial are submitted as under which are mentioned in the application for amendment of plaint :
i. On 19th January, 2012 issues were framed in the suit. ii. Plaintiff on 18th February, 2012 filed her affidavit of evidence.
iii. Plaintiff on 27th February, 2012 filed affidavit of evidence of her husband Jai Bhagwan in the suit. Plaintiff's cross examination started and adjourned to 24th March, 2012 and 16th April, 2012.
iv. On the pending representations of the plaintiff, the Sub-
Registrar-II, Janakpuri, Delhi on the orders of Chief Minister & Secretary (Revenue) NCT of Delhi had conducted enquiry and found the execution and registration of the Agreement to Sell and GPA dated 22nd December, 2008 executed by defendant No. 1 in favour of defendant No.2 to be based on fraud and concealment of material facts. With the approval of the Registrar, West and lGR/Divisional Commissioner, Delhi, the Sub-Registrar-II vide its order dated 9th March, 2012 has cancelled the registration of aforesaid two documents. Plaintiff had received the copy of the order dated 9th March, 2012 from the office of SR-II on 12th March, 2012 and had given the same to her counsel, who had advised her to wait till her cross examination is complete.CS (OS) No.2008/2009 Page 9 of 18
v. On 28th March, 2012 defendant No.2 had moved application before SR-II for recall of order dated 9th March, 2012. On the application of defendant No.2 SR-II started making inquiry thus a cloud of uncertainty was created over order dated 9th March, 2012.
vi. On 16th April, 2012 the cross-examination of PW-1 was concluded. Plaintiff's counsel in view of the inquiry conducted by SR-II on the above mentioned protest letter of defendant No.2 had advised her to wait till the uncertainty on the order dated 9th March, 2012 is over. vii. On the orders of Secretary (Revenue) SDM, Patel Nagar, Delhi on 20th November, 2011 had lodged FIR No. 391 of 2011 P.S. Janakpuri under Section 420/468/471/34 IPC against defendant No.1 and 2. After investigation of the case IO on 4th May, 2012 filed charge sheet in the Court of Smt. Ravinder Bedi, ACMM. Learned Magistrate took cognizance of the charge sheet and proceeded further with the trial of the case. Plaintiff had applied for the copy of the charge sheet which was delivered to her on 8th May, 2012. Plaintiff had handed over the same to her counsel for appropriate action.
viii. It is stated by the plaintiff that she asked her counsel to bring on record the subsequent events in the suit, who had advised her to let matter of cancellation of the disputed documents by the SR-II be finalized and the cross examination of PW-2 to be completed and thereafter he will CS (OS) No.2008/2009 Page 10 of 18 take steps to bring the facts of subsequent events on record of the suit.
ix. On 4th May, 2012 the Cross Examination of the husband of appellant as PW-2 commenced and same was deferred for 6th July, 2012.
x. On 6th July, 2012 the record of the Suit No.2008 of 2009 was misplaced in the Record Room of the Court and could not be traced till 1st October, 2012.
xi. On 12th July, 2012 Sub-Registrar-II under the influence of the defendants illegally issued a notice to the plaintiff to show cause why criminal prosecution may not be initiated against her for concealment of the pending civil suits and stay orders passed therein and why order dated 9th March, 2012 be not recalled.
xii. Plaintiff had challenged the show cause notice dated 12th July, 2012 issued by Sub-Registrar-II, Janak Puri before Delhi High Court in W.P.(C) No. 4545 of 2012. This Court vide its order dated 31st July, 2012 has been pleased to direct modification of show-cause notice to the extent that it threatened the victim of a fraud with prosecution and gave liberty for a fresh show-cause notice without threat of prosecution in case required to do so.
xiii. On 9th August, 2012 the SR-II after deleting the threat of prosecution of the appellant issued a fresh show-cause notice why the order dated 9th March, 2012 may not be recalled.CS (OS) No.2008/2009 Page 11 of 18
xiv. On 29th August, 2012 the plaintiff had filed her reply giving reasons why the show-cause notice is wrong and liable to be dropped against her.
xv. Since no action was taken on above show-cause notice after plaintiff filed her reply before the SR-II, the plaintiff in order to seek clarity on order dated 9th March, 2012 had on 31st August, 2012 applied for certified copies of Agreement to Sell and G.P.A dated 22nd December, 2008 where the endorsement of cancellation order dated 9th March, 2012 has been made. But SR-II under the influence of the defendants did not issue the certified copies of the documents.
xvi. On 1st September, 2012 the then counsel of the plaintiff filed the order dated 9th March, 2012 and the certified copy of Charge-Sheet dated 4th March, 2012 in CS (OS) No.1916/2009.
xvii. On 1st October, 2012 Court record of Suit No. 2008/09 could be traced and the cross-examination of PW -2 was resumed.
xviii. Since the office of Sub-Registrar-II, inspite of the repeated request of the plaintiff had declined to inform the status of the cancellation order dated 9th March, 2012 and failed to issue the certified copies of the documents therefore on 3rd October, 2012 the plaintiff applied under Right to Information to get certified copies along with details about the date of endorsement on documents, which were cancelled, vide order dated 9th March, 2012.CS (OS) No.2008/2009 Page 12 of 18
xix. On 31st October, 2012 the Cross-Examination of PW-2 was concluded.
xx. It is stated in the application that it was only on 4th November, 2012 the plaintiff had received the RTI reply dated 2nd November, 2012 to questions under Right to Information application dated 3rd October, 2012 along with certified copy of the agreement of sale dated 22nd December, 2008 with copy of order dated 9th March, 2012 pasted on it. But copy of GPA dated 22nd December, 2012 was not supplied.
xxi. On 5th November, 2012 the plaintiff wrote to the office of SR-II regarding why copy of GPA is necessary to be supplied to her.
xxii. On 6th November, 2012 the plaintiff had changed her counsel in the Suit who filed their Vakalatnama and inspected the suit file and all the facts relating to the fraud played by the defendants had come to the knowledge of the plaintiff. Thereafter plaintiff was advised to file the amendment application in the suit to bring all the subsequent relevant facts relating to the exposure of fraud of respondents by the Revenue authorities & police on record in accordance with the statutory requirements of Order 6 Rule 4 of C.P.C. without any further delay. xxiii. Plaintiff on 9th November, 2012 had filed first amendment application to bring on record complete fraud as per Order 6 Rule 4 CPC and the facts which had come to the light subsequent to the commencement of trial. Further, in order CS (OS) No.2008/2009 Page 13 of 18 to avoid multiplicity of litigation the amendment application also prayed for an additional relief's of the grant of mesne profits and damages for illegal use and occupation of the suit property and for usurpation of the household effects by the defendants which were kept in the flat, said relief is within the limitation period.
xxiv. On 20th November, 2012 this Court had dismissed the amendment application.
xxv. Office of SR-II on 24th November, 2012 replied to the plaintiff confirming that the GPA and Agreement to Sell dated 22nd December, 2008 stands cancelled in the books of the Registrar. Further, the office of SR-II supplied the certified copy of the cancelled GPA dated 22nd December, 2008. xxvi. On 26th November, 2012 plaintiff had filed application for amendment to bring the subsequent facts on record in Suit No.1916/2009 where this Court has been pleased to issue notice.
xxvii. On 17th December, 2012 the plaintiff filed the appeal challenging order dated 20th November, 2012 before the Division Bench. Plaintiff's F.A.O. No. 608 of 12 was dismissed as withdrawn on the submissions that she will make fresh applications for taking on record facts and documents which are germane and have arisen subsequent to the framing of the issues.
xxviii. After the filing of the appeal the plaintiff has received a letter dated 17th December, 2012 from the office of SR-II informing her that her reply to show cause notice has been CS (OS) No.2008/2009 Page 14 of 18 found to be satisfactory and no further action is being taken on the same on the show cause notice dated 9th August, 2012. Thus the uncertainty on 9th March, 2012 has come to an end and the said order has become final.
15. It is pertinent to mention that the plaintiff has filed along with application all annexures details of which are mentioned in para 13 above as annexure 1 to 14.
16. The following decisions are relevant for the purpose of deciding the application for amendment of plaint :
a) In the case of Rajesh Kumar Aggarwal v. K.K. Modi, (2006) 4 SCC 385 : (para 16, 17, 19, 20) it was held :
"Test that governs issues of amendment is "real controversy" test.
Merits of proposed amendment - Not to be gone into at the stage of allowing amendment."
b) In the case of Saif-ul-Islam Company, L.P vs. Roshan Lal Arora & Another , 2003 AIHC 2966 Delhi High Court, (paras 12 to 15) it was held -
"Amendments are necessary for the purpose of determining real questions in controversy - do not change the nature of the suit and would not cause any prejudice to the defendants if the same are allowed."
"Mere delay and latches in making the application for amendment is not a good ground for refusal of the amendments."
c) In the case of Suraj Prakash Bhasin v. Raj Rani Bhasin, (1981) 3 SCC 652 (para 5 to 8) it was held -
CS (OS) No.2008/2009 Page 15 of 18"The liberal principles which guide the exercise of discretion in allowing amendments are that multiplicity of proceedings should be avoided, that amendments do not totally altered the character of an action should be readily granted."
d) In the case of Reevajeetu Builders and Developers vs. Narayanaswamy & Sons & Ors., (2009) 10 SCC 84 (paras 58, 59, 63 and 64) it was held -
"Basic test which must govern for grant or refusal of amendments is whether such amendment is necessary for determination of real question in controversy or for proper and effective adjudication of the case."
e) In the case of Peepee Publisher & Distributors (P) Ltd vs. Dr. Neena Khanna & Anr., 2009 (110) DRJ 489 (paras 16 to 18) it was held -
"Courts cannot go into the truth or falsity or maintainability of the case in amendment. For complete and effective adjudication of the dispute between the parties amendment should be allowed."
f) In the case of Chet Ram Gupta v. Motian Devi Lamba, 148 (2008) DLT 473 (DB) (paras 10, 12, 14, 16, 17, 18) it was held -
"Amendments sought does not make out new case or new cause of action.
Fundamental facts stated by applicant continued to be same and in substance amendment does not introduce any new material facts.
Parties should not be made to suffer for want of proper drafting even when relevant facts are already before court in pleadings and basic structure of suit is not altered."CS (OS) No.2008/2009 Page 16 of 18
17. Under the above mentioned chain of circumstances and settled law, it appears to the Court that the plaintiff had not delayed in filing the amendment application for bringing on record the subsequent events which had seen the light of the day after the commencement of trial of the suit. It is settled proposition that the amendment application can even be allowed after commencement of trial. In the present case, the plaintiff has been able to satisfy the Court that the application has been made with bonafide and that the subsequent event could not have been raised before the commencement of trial.
18. Furthermore, the plaintiff, NRI at Dubai is a housewife and is handicapped in the prosecution of her case on account of her frequent travelling and is completely dependent on the advice of counsel engaged by her.
19. The plaintiff has filed the present suit for declaration, permanent injunction and restoration of possession against the defendants relating to her flat No. A-48, Gujranwala C.G.H.S. Ltd, Vikaspuri, Delhi.
20. It is the case of the plaintiff that the defendants after manipulation of the registration of agreement of sale & GPA dated 22nd December, 2008 had criminally trespassed in the plaintiffs flat and illegally usurped all the household effects kept in the flat. Therefore the plaintiff in addition to the grant of relief of possession is also entitled to seek the relief of grant of mesne profits and damages for illegal use and occupation of her flat and usurpation of the household goods kept in the flat against the defendants.
21. In view of the above mentioned facts and circumstances it is necessary to allow the amendment by placing the subsequent facts CS (OS) No.2008/2009 Page 17 of 18 which had come into existence post commencement of the trial of the suit as the plaintiff has satisfied this Court that the proviso of the provision would not come in the way of the plaintiff as the amendment is sought with due diligence and it is necessary to decide the real controversy between the parties. Thus, prayer in I.A. No. 667/2013 is allowed accordingly. The amended plaint is taken on record.
22. Consequently the prayer made in remaining applications i.e. I.A. No. 668/2013 and I.A. No. 669/2013 are allowed. The additional documents are taken on record with regard to re-examination of the plaintiff, the appropriate order be passed by Joint Registrar at the relevant time.
23. All applications are disposed of.
C.S. (OS) No. 2008/200924. The defendants are granted four weeks time to file the amended written statement and additional documents if any.
25. The matter be listed before Joint Registrar for admission/denial of additional documents on 9th March, 2015.
26. List the matter before Court on 11th May, 2015 for framing of additional issues, if any and for direction of remaining trial.
(MANMOHAN SINGH) JUDGE FEBRUARY 10, 2015 CS (OS) No.2008/2009 Page 18 of 18