Delhi High Court
Shri Ajit Singh vs Smt. Adarsh Kaur Gill & Ors. on 3 November, 2009
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 26.10.2009
Date of Order: November 03, 2009
IA No. 8144/2008 in CS(OS) No. 2167/1993
% 03.11.2009
Shri Ajit Singh ... Plaintiff
Through: Mr. M.L.Bhargava, Advocate
Versus
Smt. Adarsh Kaur Gill & Ors. ... Defendants
Through: Mr. C.A.Sundaram, Sr. Advocate with
Ms. Malvika Rajkotia, Ms. Divya Kesar,
Ms. Rohini Misra, Mr. Zafar, Mr. Manmohit &
Ms. Aradhana Kaura, Advocates
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the
judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
ORDER
By this order I shall dispose of an application under Order 6 Rule 17 CPC made by the defendant for amendment of the WS.
2. In the application, the defendant has stated that vide order dated 23rd April, 2008 this Court had allowed the defendant to withdraw the amended WS and file it again with a suitable application so this application under Order 6 Rule 17 CPC is made. The reason for seeking amendment of the WS is to IA No. 8144/2008 in CS(OS) No. 2167/1993 Page 1 of 10 crystallize the real question to be determined in the suit. It is submitted that defendant had earlier filed an application under Order 7 Rule 11 CPC stating that suit was barred by limitation. This application was dismissed by the Single Judge of this Court however, in appeal against the order of Single Judge, the Division Bench held that except reliefs 'A', 'H' & 'I' all other reliefs were barred by limitation and suit shall proceed in respect of reliefs 'A', 'H' & 'I'. The plea taken by the defendant is that since trial has not commenced in respect of reliefs 'A', 'H' & 'I' even the defendant should be permitted to amend the WS since it would not cause any hardship to the plaintiff.
3. It is further stated that the plaintiff had come to the Court with a specific plea of existence of a Will and a 'codicil' however, subsequently plaintiff took a stand that codicil was not available so he should be allowed to delete the paragraphs from the plaint regarding 'codicil' and the plaintiff would rely upon Will and other writings of the deceased. Plaintiff was therefore permitted to amend the plaint so as not to rely on codicil and the defendant was also permitted to amend the WS accordingly. However, defendant wanted to make further additions and alterations in the WS and hence this application under Order 6 Rule 17 CPC.
4. This suit is pending in the Court since 1993. WS was filed by the defendant on 8th November, 1995. The amendment application for amending the WS without any substantial reason has been made on 8th July, 2008 i.e. after 13 IA No. 8144/2008 in CS(OS) No. 2167/1993 Page 2 of 10 years of the filing of the WS. By way of amendment the defendant wants to substitute paragraph 01 of preliminary objection, paragraphs no. 5, 6, 31, 36, 37, 38, 39, 41, 43, 45, 51, 53, 54, 59 & 63 of the reply on merits and wants to insert additional para 5A in the WS. A perusal of these paragraphs, which defendant wants to substitute now in place of earlier paragraphs shows that defendant has done nothing but put some more arguments in each paragraph based on the facts earlier stated by the defendant. By amendment, the defendant wants to make the WS a lengthy and prolix document containing facts and arguments to show how the case of the defendant was well founded. By adding para 5A the defendant wants to assert a claim that the defendant no.1 has been in adverse possession of the suit property for a period in excess of 12 years before the commencement of the suit and as such the title, if any, of the plaintiff had already extinguished by virtue of limitation act and defendant no.1 has become the owner of the suit property by adverse possession. Rest of the paragraph is again arguments in favour of the adverse possession claimed by the defendant.
5. Issues in this matter were framed by the Court on 1st February, 2005. After framing of issues the plaintiff filed affidavit of plaintiff's witness in examination chief in terms of the order of Court. In the meantime plaintiff filed an application under Order 6 Rule 16 CPC whereby he wanted certain paragraphs of the plaint regarding 'codicil' to be deleted. Notice of this application was issued to the defendant and the order dated 6.9.2006 shows that the defendant IA No. 8144/2008 in CS(OS) No. 2167/1993 Page 3 of 10 stated that he had no objection if the application was allowed. The application was accordingly allowed and the amended plaint, after deletion of paragraphs regarding codicil, was taken on record. The Counsel for defendant at that time stated that he had filed amended WS to the amended plaint. The Counsel for plaintiff raised objections to the portions of the amended WS which were unrelated to the amended plaint on the ground that this purported to change the nature of the defence. The Counsel for defendant sought time to examine the matter. The amended WS was taken on record subject to objection of the plaintiff regarding alteration of defence of the defendant and amendments unrelated to the amended plaint. After the order of 6.9.2006 the defendant, after about two years, filed the present application seeking amendment of the WS. This Court vide order dated 4.8.2008 gave directions that the evidence on behalf of the respective parties be recorded by the Joint Registrar and Registrar should fix a schedule for recording evidence. The matter was listed on 6th August, 2008, on which days no witness of defendant no.1 who was to lead evidence was present. The matter was re-notified for evidence of defendant no.1 on an IA No. 8534/1996 on 11th November, 2008.
6. The learned Counsel for defendant has argued that the law regarding amendment, specifically in case of WS, was different from the law for amendment of the plaint. In case of amendment of WS the Courts have been liberal. On the strength of Sushil Kumar Jain v. Manoj Kumar & Anr. JT (2009) 8 IA No. 8144/2008 in CS(OS) No. 2167/1993 Page 4 of 10 SC 392, learned Counsel for the applicant submitted that the applicant has a right to elaborate and clarify the earlier inadvertence and confusion made in the WS and even if there was an admission made in the WS the same can be explained by amendment of the WS. He submitted that Supreme Court has observed that amendment of plaint and amendment of WS are not necessarily governed by the same principles and adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering, substituting a new cause of action in the plaint. He also sought support from Baldev Singh & Ors. v. Manohar Singh & Anr. AIR 2006 SC 2832 and Usha Balashaheb Swami & Ors. v. Kiran Appaso Swami & Ors. AIR 2007 SC 1663.
7. On the other hand it is submitted by the Counsel for the plaintiff/non-applicant that the amendment application was another attempt made by the defendant to delay the proceedings. The amendment could not be allowed since the trial in this case had already started. It is also submitted that defendant has given no reason why amendment was being made and what necessitated the amendment after about 13 years of filing of the WS. He also submitted that the defendant's application for amendment of the WS was not in accordance with law. The defendant had not categorically stated the additional pleading which the defendant sought to add and pleading which defendant sought to delete or alter, (Kedarnath & Ors. v. Ram Parkash & Ors. 76(1998) IA No. 8144/2008 in CS(OS) No. 2167/1993 Page 5 of 10 DLT 755 (Full Bench) and Gurdial Singh & Ors. v. Raj Kumar Aneja & Ors. (2002) 2 SC 445.
8. It is further submitted by plaintiff that seeking of amendment without giving supporting particulars as to why the applicant, despite due diligence could not make application prior to that day, could not be permitted more so when the amendment sought introduced a totally new and inconsistent case. He submitted that trial is deemed to have commenced once issues are settled and the case is set down for recording of evidence and the present application had been made after commencement of trial (Ajenderaprasadaji N.Pande v. Swami Keshavprakeshdasji N. & Ors. (2006) 12 SCC 1. It is also submitted that merely because the plaintiff sought deletion of certain paragraphs of his plaint would not give a ground to defendant to add a new defence and to make substantial changes in the WS, not related to the amendment in the plaint. He further submitted that the Court cannot allow the amendment which intends to destroy the very case earlier pleaded by the defendant and to set up a new and contradictory case. On the one hand the defendant claimed 1/5 th share in the property as a co-owner and on the other, the defendant has set up ownership on the basis of adverse possession. He stated that the two stands taken by the defendant in the amended WS cannot be allowed and the amendment is liable to be dismissed. He sought support from Heeralal v. Kalyan Mal & Ors. 1998(1) SCC 378.
IA No. 8144/2008 in CS(OS) No. 2167/1993 Page 6 of 10
9. It is settled law that the pleading of the parties should be precise concise and set out the facts distinctly. The pleadings are not supposed to contain the arguments of the parties nor they are supposed to enunciate the law. If the suit is not maintainable due to any provision of law, the same can be set out by the defendant in the preliminary objections or in an application under Order 7 Rule 11 CPC. In the present case, the defendant, by way of the present application wants to re-write the entire WS in a different fashion so that the WS contains elaborate arguments and further details of the same events already pleaded. I consider that allowing the amendment of the nature as sought by the defendant where the defendant wants to substitute paragraphs no. 5, 6, 31, 36, 37, 38, 39, 41, 43, 45, 51, 53, 54, 59 & 63 by new paragraphs would only amount to travesty of justice. Amendment cannot be allowed because of an itch of the party to amend WS. Amendment can be sought only where due to inadvertence some facts have not been stated or had missed. Such amendment can be sought only within reasonable time that also before the start of trial. In the present case, the defendant has been very hotly contesting the claim of the plaintiff on the ground of limitation and he moved an application under Order 7 Rule 11 CPC that the entire suit of the plaintiff was barred by limitation. The defendant was very well aware of her rights flowing from the law of limitation even at the time of preparing WS and the earlier WS filed by the defendant contains averments regarding this. Re-shaping the same averments in a different language, giving more length and breadth to the paragraphs of the WS IA No. 8144/2008 in CS(OS) No. 2167/1993 Page 7 of 10 only shows a desire of the defendant to prolong the proceedings by whatever means that can be adopted. Once limitation has been pleaded as a ground that the suit was not maintainable, the adverse possession being one of the facets of limitation is included and the defendant's Counsel during arguments himself stated that he had specifically taken the point of limitation. He argued that defendant wanted to take the plea of adverse possession as an alternate plea to the plea of limitation and while claiming adverse possession, the onus of proving the issue will shift to the defendant and he was prepared to discharge this onus. Since plea of adverse possession is already covered no amendment is necessary.
10. I consider that the entire premise of the amendment is being misused by the defendant. No doubt the Courts have been liberal in allowing amendment of pleadings and amendment applications have been one of the potent tools for prolonging litigation to any extent. The amendment applications have been allowed by the Courts even during appeal after the suit has been decided by the Trial Court. Considering this practice and use of provision of law, the Parliament amended CPC and provided that the Court should be careful while allowing amendment applications and normally amendment should not be allowed, once the trial has started. The sole purpose of making this change in law was that while the Courts have to administer justice between the parties, IA No. 8144/2008 in CS(OS) No. 2167/1993 Page 8 of 10 Courts have to be careful that the provision should not be allowed to be used as a tool to deny justice by prolonging the litigation itself by one or the other method.
11. The present case is a stark example how amendment can be sought only on frivolous grounds. No reason has been given by the defendant as to why this application for amendment was made after 13 years of the filing of the initial WS. Merely because the plaintiff sought to delete certain paragraphs from the plaint on the ground that 'codicil' relied upon by the plaintiff was not traceable/available, the defendant does not get a right to bring out a new WS substantially changing the existing paragraphs with new arguments and cannot get a right to have additional and new plea.
12. Even while allowing amendment to the WS the Courts have to be conscious of the fact that the each litigation must come to an end within a reasonable time. The Courts, the Executive and the Legislature are showing their anxiety that the length of the life of a case in the courts must be reduced and the cases pending for decades are a blot on the face of the judicial system. The Courts cannot give unwarranted liberties to the litigants of seeking amendments because of whims and fancies of the advocates. In this case no new fact is pleaded in the WS. Already pleaded facts are being re-framed and re-arranged with some arguments added. The whole amendment only seems to be an effort of delaying the case. No doubt the Courts have held that the rules of amendment of plaint and WS are to be somewhat different but these IA No. 8144/2008 in CS(OS) No. 2167/1993 Page 9 of 10 observations do not give a license to the defendant in adopting to dishonesty either in prosecuting a case or in amendment of the WS. Dishonesty cannot be encouraged by the Courts nor can the Courts encourage the efforts of litigants to delay the proceedings as long as possible by one or the other method.
13. I find no force in the present amendment application. The application is dismissed with costs of Rs.50,000/-. Costs be paid within two weeks.
CS(OS) No. 2167/1993
Since plaintiff has only deleted some paras of original plaint, the defendants' WS originally filed shall be considered good enough sans the reply to the deleted paras. Matter be listed before Joint Registrar for fixing dates of cross examination of witnesses on 19th November, 2009 November 03, 2009 SHIV NARAYAN DHINGRA, J.
vn IA No. 8144/2008 in CS(OS) No. 2167/1993 Page 10 of 10