Delhi District Court
Yashpal vs Dda on 1 August, 2009
-1- IN THE COURT OF SH. DINESH BHATT, ADJ-03 (NORTH)/ DELHI CS-183/08 Yashpal ..........Plaintiff VS DDA ..........Defendant ORDER:
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This is an application U/o 6 R 17 r/w order 1 R 10 CPC.
It is stated in the application that during the pendency of the suit subsequent events have taken place which have made the original relief in- appropriate and are not capable of delivering relief in full. Further due to oversight, negligence and wrong advice given to the plaintiff by his previous counsel, the plaintiff could not pray for certain relief as such reliefs, of specific performance of the contract dt. 25/07/91 and relief of partition by metes & bounds with separate possession could not be claimed. In totality amendments are necessary and proposed defendant no. 1(A), namely, Sh. S.P. Jain be allowed to be impleaded as party.
Main amendments sought through the present application are, to amend the title of the suit as a suit for specific performance of contract dt. 25/07/91, for declaration and partition by metes and bounds, separate half possession of the property in favour of the plaintiff up to all levels and for permanent injunction.
Contd..............
-2-Further it is stated that since the sale of the property has taken place between the plaintiff, defendant no. 2 and Sh. S.P. Jain as per agreement to sell dt. 25/07/91, therefore, defendant no. 1 (A) is required to be impleaded as a defendant.
As per amendment application, Para 1 sought to be amended whereby amendments regarding agreement to sell executed between the plaintiff, defendant and Sh. S.P. Jain are sought to be added.
In para 2 Police report dt. 24/02/96, is to be added and para no. A & B are sought to be inserted. There are amendments in paras 10, 11, 12, and para 12(A), (B), (C) in respect of relief of specific performance.
Para 13 & 14 are also sought to be amended. Entire reliefs of the original plaint are sought to be deleted and substituted with new reliefs which are numbered A(i) to A(iv) and B(i) to B(iv).
Reply to this application has been filed, wherein it is stated that the present application is neither maintainable in law nor framed properly and therefore liable to be dismissed. It is also stated that as per the amended Code of Civil Procedure, no amendment after the trial has begin can be allowed, save and except on the proof that inspite due diligence the party could not have raised the matter before commencement of the trial.
The averments regarding the negligence of the earlier counsel are not substantiated. Further the reliefs as claimed by means of amendment have become time barred and cannot be allowed at this stage. The contents of the application are denied. Suit was filed in December, 1998, written statement was filed and issues were framed in the year 2004. The plaintiff and the defendant have completed their evidence and the matter is now listed for final arguments.
Contd.............
-3-I have heard Ld. Cl. for the parties.
The present suit is a suit for declaration, possession and permanent injunction. As per the plaint the plaintiff and defendant no. 2 was joint owners of the suit property. It was later found out that defendant no. 2 had illegally entered into a transaction for transfer of the suit property in favour of Sh. Om Parkash, Sh. Ajay and Sh. R.K. Jain. The said suit was returned for filing in an appropriate court. The suit on refiling was dismissed for not filing court fee. This s a fresh suit as per the plaint. The defendants had applied for conversion of the suit property from leasehold to freehold and had also applied for sanction in favour of one Sh. S.P. Jain. The main relief therefore sought is that the alleged transfer documents in favour of the defendants are null and void and that DDA, defendant no. 1 be restrained from awarding any sanction or mutation in their favour.
By means of this amendment the plaintiff wants to apply for specific performance of the agreement dt. 25/07/91 against the proposed defendant no. 1(A) and consequently has sought declaration that he is entitled to partition of the suit property and is also owner to the extent of half share. He has also prayed for declaring the subsequent agreements to sell of the year 1995, 1998 & 1999 as null and void.
The present suit is based on the assumption that the plaintiff is owner of the property whereas by means of the proposed amendment, specific performance of the agreement to sell, the basis on which the presumption of the present suit has arisen has been sought. This in fact, changes the entire nature of the suit. The plaintiff also seeks to enforce partition in the suit property and claims his half share from defendant no. 2. The present suit is primarily for the purpose of declaring the agreements Contd.............
-4-between defendant no. 2,3,4, & 5 as null and void and stopping the DDA from allowing any mutation or sanction in their favour. By amendment the suit will primarily be a suit for specific performance against the proposed defendant 1(A) and thereafter the consequential reliefs of partition and declaration of subsequent agreements being declared null and void would follow.
The amendments which are necessary for proper adjudication of the matter can be allowed but the amendments which alter the nature of the suit cannot and should not be allowed. This would be an abuse of the process of law. The plaintiff has stated that these reliefs were not claimed as the earlier counsel had not advised them properly is also not believable as the suit is being pursued from the year 1998. Evidence of both the parties have been completed and is at the stage of final arguments, when the present application has been moved. Further no action against the said counsel has either been proposed or initiated to prove their bonafidies. The next point which would arise would be the question of limitation as the agreement was of the year 1991 and its specific performance is being sought by amendment in the year 2009. This prima facie appears to be barred by limitation. As regards amendment regarding subsequent transfers is concerned, they are well governed by the doctrine of lis pendence.
On merits it is stated that the proposed defendant no. 1 (A) had agreed to sell the property to defendant no. 3 & 5 through defendant no. 2 and in fact plaintiff had no right, title in the suit property.
Contd.............
-5-The amendments sought therefore would completely alter the nature of the suit. The same is neither permissible in law nor any justified at this stage.
Consequently, there is no merit in the application, the same is dismissed.
Announced in the open court (DINESH BHATT) on 01/08/09 ADJ/Delhi/01/08/09