Delhi District Court
Suit No. : 184/08 vs Vijay Kumar on 3 August, 2013
IN THE COURT OF SH. SUMIT DASS, ADMINISTRATIVE CIVIL
JUDGE (NORTH WEST), ROHINI COURTS, DELHI
Suit No. : 184/08.
Arjun
S/o Sh. Mohan Lal
R/o H. No. C520B, Kh. No. 807/808
Aman Vihar, Kirari Suleman Nagar
Delhi110086 ...Plaintiff.
Versus
1. Vijay Kumar
S/o Sh. Prabhu Dayal
R/o C426, Near Radha
Krishna Mandir, Aman Vihar
Kirari Suleman Nagar
Delhi110086
2. Pappu Soni
S/o Sh. Chunna Lal
R/o C39, Aman Vihar
Kirari Suleman Nagar
Delhi86
3. Naresh Kumar
R/o D44, Sultanpuri
Delhi110086 ...Defendants.
Date of Institution : 22.12.2008. 184/08
Date of Arguments : 08.05.2013.
Date of Judgment : 03.08.2013.
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ORDER:
1. By means of this order I propose to dispose the plaintiff's application under order 6 rule 17 seeking amendment of plaint.
2. Shorn of unnecessary details, the case of the plaintiff is that he purchased the suit property (C520B, Khasra No. 807808, Aman Vihar, Kirari Suleman Nagar, Delhi) on 27.2.2008 and paid Rs.25,000/ as earnest to the defendant no.1 at got executed a 'Bayana Reciept' with the total consideration being Rs.2,45,000/. At that that time it was represented to the plaintiff that defendant no.2 who had signed the bayana receipt as a witness was an authorised agent of defendant no.1 and after receiving of balance amount would hand over possession to the plaintiff and necessary sale documents would be executed by the defendant no.1 in favour of the plaintiff. On 24.10.2008 the defendant no.2 executed an agreement as authorised agent of defendant no.1 in favour of plaintiff and his wife Smt.Shashi and received another amount of Rs. 1,60,000 and handed over vacant possession of the suit property to the plaintiff. The 2/18 balance of amount of Rs.60,000 was initially agreed to be paid at the time of executing the relevant documents, but were paid later the same day on assurance of defendant no.2 that documents would be executed in 12 days. However the said promise was not fulfilled despite repeated requests. Meanwhile attempts were made by the defendants 1 to 3 to dispossess the plaintiff, constraining the plaintiff to file the present suit.
3. Defendant no.1 entered appearance and filed a written statement on 23.01.2009. He contended that he is the owner of the property and entered into an agreement to sell cum earnest receipt on 27.2.2008 vide which he agreed to sell the suit property to the plaintiff on payment of earnest, with a stipulation that the plaintiff would pay the remaining Rs.2,20,000/ on or before 19.03.2008 and at that time only the plaintiff was allowed on humanitarian grounds to reside in the property as a licensee as he had no other suitable accommodation and his wife was pregnant, however the plaintiff did not honour his commitment and did not pay the balance consideration and as such his earnest money of Rs.25,000 was forfeited, and he was requested to vacate the premises. 3/18 The defendant no.1 then entered into an agreement to sell with one Mr.Kumesh Kumar on 28.03.2008 and executed all necessary documents of sale in his favour and handed over symbolic possession, who in turn further sold the property to Mr.Shamsuddin on 24.10.2008 and on the same day the property again exchanged hands, finally to one Smt.Poonam w/o Naresh Kumar (who was already the defendant no.3). The defendant completely denied that the defendant no.2, who he claims is a property dealer, was his agent or in any manner authorised to sell the property.
4. The plaintiff filed a replication reiterating the contents of his plaint stating that the subsequent sales of the property carried out in unexplained haste reflect that defendant is hand in glove with these people and wants to defeat his rights.
5. After the completion of pleadings the following issues came to be framed by my Ld.Predecessor on 03.12.09:
i) Whether the plaintiff is entitled for equitable relief of permanent injunction;
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ii) Whether the plaintiff is a licensee in the suit property;
iii) Whether the suit is not maintainable in view of the other preliminary objections ?
After the matter proceeded on to the stage of evidence, an application under O.6 R 17 came to be filed on 05.03.2011, however the same was withdrawn on 30.05.2012 and an amendment application was filed afresh on 19.07.2012, which is being adjudicated herein.
6. Let us see what is it that the plaintiff seeks to amend via his application for amendment. The plaintiff stated that he got to know that the suit property, subsequent to agreement in his favour, was sold further to one Mr.Kumesh Kumar, then to Shamsuddin and finally to Smt.Poonam only after the defendant took the stand in his written statement. He sought to make the aforesaid persons defendants to the suit. He also sought to add the relief of Specific Performance qua defendant no.1 seeking 5/18 performance of agreement to sell dated 24.10.2008, and also qua the proposed three defendants declaration as to the invalidity of their respective deeds.
This application was vehemently objected on these counts :
a) The relief of specific performance as being time barred and remedy always having been available with the plaintiff;
b) The relief of declaration having been made after considerable delay, and being an abuse of the process of law.
7. This being the factual scenario let us briefly discuss the law relating to amendment of pleadings.
Order 6 Rule 17. Amendment of Pleadings. the Court may at any stage at the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
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.
6/18 The general principle that can be culled out from the section is that courts at any stage of the proceedings may allow either party to alter or amend the pleadings in such manner and on such terms as may be just and all those amendments must be allowed which are imperative for determining the real question in controversy between the parties. The Hon'ble Supreme Court of India in Revajeetu Builders and Developers Vs. Narayanaswamy and Sons (2009) 10 SCC 84, after analysing a wide gamut of case law on amendment of pleadings, crystallised some basic principles to be kept in mind while allowing or rejecting the amendment application, these may profitably be referred to : (1) Whether the amendment sought is imperative for proper and effective adjudication of the case?
(2) Whether the application for amendment is bona fide or mala fide?
(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; 7/18 (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
8. Having discussed the law on the point Let us examine whether the two reliefs that the plaintiff seeks to include by way of proposed amendments deserve to be allowed. Let us first deal with the 1st Amendment i.e inclusion of relief of specific performance. Amendment qua relief of Specific Performance The Plaintiff by way of amendment endeavours to seek specific performance of agreement to sell dated 24.10.2008. As per Article 54 of the Limitation Act, 1963 Specific Performance of a contract can be sought within 3 years of date fixed for performance or if no date is fixed for performance of the contract then within 3 years of date of refusal or 8/18 knowledge of such refusal. In the present case the plaintiff has stated that he approached the defendant no.1 for execution of sale documents on 7.11.2008, again on 14.11.2008 but to no avail, infact on 15.11.2008 the defendants even tried to forcibly dispose him. Hence it can be fairly said that the plaintiff had notice that the defendant no.1 had no intentions to perform his part of the contract on the said date. The present amendment petition was moved on 19.07.2012, which is beyond a period of three years from the date of refusal or knowledge of refusal to perform the contract, hence as on date barred by limitation. Hence Relief qua Specific Performance is time barred. A right that has accrued to the defendant by virtue of law of limitation cannot be allowed to be defeated lightly. Another ground for denying the relief to the plaintiff is the utter lack of diligence which is writ large on the face of the record. Issues were framed in the instant case on 03.12.2009 and the matter was fixed for PE for 11.03.2010, after more than two years of matter being fixed for evidence, present amendment application came to be filed in 2012. The legislative mandate of not allowing readily amendments which are made 9/18 after trial has commenced is very clear from the introduction of proviso to O.6 R 17 which reads : "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." A bare perusal of the proviso would reveal it is couched in a mandatory form. The Court's jurisdiction to allow such an application is taken away unless conditions precedent thereof are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before commencement of the trial.
In the present case the plaintiff has failed to satisfy the court that the relief of specific performance could not have been raised inspite of due diligence before the commencement of trial. There is no cogent reason as to why the relief of specific performance was not sought earlier. The mischief of proviso to O.6 R 17 is clearly attracted, and further the 10/18 remedy as on date is barred by limitation, consequently amendment qua relief of specific performance stands disallowed. Amendment qua relief of declaration The Second relief that the defendant wants to seek is the declaration as to invalidity of subsequent sales of the property done by the defendant no.1. This fact as per the plaintiff has come to his knowledge after the defendant filed his written statement. A perusal of the record would reveal that the written statement came to be filed on 23.1.2009, and the present amendment application has been moved after commencement of trial on 19.07.2012 i.e more than three years after plaintiff first came to know about the transactions. This proposed amendment is also barred by limitation as per Article 58 of the Limitation Act, which lays down that for a suit for declaration the period of limitation is three years from the date when the right to sue first accrues. In the present case the plaintiff's right to seek a declaration of that string of documents first arose when these subsequent sales came to his knowledge, which is after filing of the written statement. Hence as on date of application for amendment i.e 11/18 19.07.2012 the relief of declaration against proposed defendants is time barred. It is settled law that provisions of Order 6 Rule 17 cannot be permitted to be used to defeat the law of limitation, and a right that has accrued to a party by lapse of limitation cannot be taken away. The Court is cognizant of the fact that the rule wherein a time barred relief is not allowed to be included by way of amendment, is not of universal application and under extreme circumstances court may still allow the amendment if the ends of justice so demand. However I do not find the present case to be one such case. Court has to balance equities from the point of view of both the parties. Even otherwise since the trial in the matter has commenced the proviso to O.6 R 17 is also attracted the plaintiff has failed to satisfy the court as to why the amendments were not taken up soon after the filing of the Written Statement. Although the court has to be liberal in matter of grant of amendments and hypertechnical, but legislative policy in the introduction of Proviso to O.6 R 17 cannot be lost sight of. In this regard reference may be had to relevant excerpts from Salem Advocates vs Union Of India (2005) 6 12/18 SCC 344 .
"Order VI Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial"
The above decision makes clear that the hands of the court are tied in case of amendment post framing of issues, and the same can be allowed only if the conditions laid down are established. Learned Counsel for the plaintiff has relied on a gamut of decisions : 13/18 i. B.K.N.Pillai vs P.Pillai & Others (2000) 1 SCC 712, Ragu Thilak D.John vs S.Rayappan & Others - (2001) 2 SCC 472, Ramchandra Sakharam Mahajan v. Damodar Trimbak Tanksale (D) & Ors - AIR 2007 SC 2577 a meaningful reading of these cases reveals that mere delay in filing application for amendment is not a valid ground for rejection and in the interest of justice amendments can be allowed notwithstanding the law of limitation.
ii) Sampath Kumar vs Ayya Kannu & Another . In this case amendments were sought to include relief of possession/declaration in a suit that was originally filed seeking permanent injunction against dispossession, as the plaintiff was dispossessed subsequent to filing of the suit. It was permitted to be done. It is not squarely applicable as the same is distinguishable on facts of the case and moreover in contrast to the present case amendments in the said case were made before commencement of trial.
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iii) B.N.Das vs Bijaya Ketan Mohanty AIR 1982 Orissa 145 There is no doubt as to the legal preposition as laid down in this case. However in the present case no departure from law of limitation is warranted. It is also important to note that the decision was given before the introduction of proviso to O.6 R 17 which has changed the position visàvis introduction of amendments after commencement of trial radically and has placed fetters on the exercise of discretion by the court.
iv) Vidyabai vs Padmalatha AIR 2009 SC 1433 does not advance the case of the plaintiff at all, infact it is categorically held in para 14 of the said decision that "14. It is primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However proviso appended to Order VI Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of it's jurisdiction. The Court's jurisdiction in a case of this nature is limited. Thus unless the jurisdictional fact as envisaged therein, is found 15/18 to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint".
v) Reliance is also placed by the plaintiff on State of A.P & ors vs M/S Pioneer Builders AP. AIR 2007 SC 113 however a meaningful reading of the same would reflect that the same has no application to the facts of the case. It is trite law that a judicial decision is not to be read as euclid's theorem but in the light of it's peculiar facts and circumstances. I find it apposite to quote the Hon'ble Supreme Court in Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Ors. (2009)10SCC84 : "29. In our considered view, Order VI Rule 17 is one of the important provisions of the CPC, but we have no hesitation in also observing that this is one of the most misused provision of the Code for dragging the proceedings indefinitely, particularly in the Indian courts which are otherwise heavily overburdened with the pending cases. All Civil Courts ordinarily have a long list of cases, therefore, the Courts are compelled to grant long dates which causes delay in disposal of the cases. The applications for amendment lead to further delay in disposal of the cases.
30. It may be pertinent to mention that with a view to avoid delay and to ensure expeditious disposal of suits, Rule 17 was deleted on 16/18 the recommendation of Justice Malimath Committee by the Code of Civil Procedure (Amendment) Act, 1999 but because of public uproar, it was revived. Justice C.K. Thakker, an eminent former Judge of this Court in his book on Code of Civil Procedure (2005 Edition) incorporated this information while dealing with the object of amendment.
31. In a recently published unique, unusual and extremely informative book "Justice, Courts and Delays", the author Arun Mohan, a Senior Advocate of the High Court of Delhi and of this Court, from his vast experience as a Civil Lawyer observed that 80% applications under Rule VI Order 17 are filed with the sole objective of delaying the proceedings, whereas 15% application are filed because of lackadaisical approach in the first instance, and 5% applications are those where there is actual need of amendment. His experience further revealed that out of these 100 applications, 95 applications are allowed and only 5 (even may be less) are rejected. According to him, a need for amendment of pleading should arise in a few cases, and if proper rules with regard to pleadings are put into place, it would be only in rare cases. Therefore, for allowing amendment, it is not just costs, but the delays caused thereby, benefit of such delays, the additional costs which had to be incurred by the victim of the amendment. The Court must scientifically evaluate the reasons, purpose and effect of the amendment and all these factors must be taken into consideration while awarding the costs.
732. To curtail delay in disposal of cases, in 1999 the Legislation altogether deleted Rule 17 which meant that amendment of pleading would no longer have been permissible. But immediately after the deletion there was widespread uproar and in 2002 Rule 17 17/18 was restored, but added a proviso. That proviso applies only after the trial has commenced. Prior to that stage, the situation remains as it was. According to the view of the learned author Arun Mohan as observed in his book, although the proviso has improved the position, the fact remains that amendments should be permissible, but only if a sufficient ground therefore is made out, and further, only on stringent terms. To that end, the rule needs to be further tightened."
In my considered opinion, the amendment application being hit by the mischief of proviso of Order 6 Rule 17 cannot be allowed, hence stands dismissed, however without costs.
To come up for PE on 25.11.2013.
Announced in the open court (SUMIT DASS)
on 03.08.2013. ACJCUMARC NORTHWEST
(This order contains eighteen pages and ROHINI COURTS, DELHI.
each page bears my signature.)
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