Delhi High Court
Vasumati Agencies Pvt. Ltd. vs Harish Chander Dewan And Ors on 27 July, 2001
Equivalent citations: 2002 A I H C 186
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Devinder Gupta, J.
1. Appellant/defendant No.5 has filed this appeal challenging the order passed by learned Single Judge on 11.1.2000 dismissing its application field under Order 6 Rule 17 of the Code of Civil Procedure seeking amendment of its written statement.
2. Learned Single Judge after narrating the facts leading to the filing of the application for amendment proceeded to dismiss the application on two grounds, i.e. defendant No.5 was not a party to the award dated 16.12.1988 and to suit NO.106A/89 wherein the said award of the arbitrator was made rule of court, therefore, has no locus standi to challange the award/decree and secondly on the ground that the application seeking amendment has been filed with a view to delay the proceedings in the suit.
3. We have heard learned counsel for the parties and been taken through pleadings as well as the application seeking amendment of the plaint.
4. Plaintiff/respondent No.1 has filed the suit seeking decree for declaration that the lease deed dated 12.10.1990 executed by late Lila Ram Dewan in favor of defendant No.5 ins illegal, invalid and it creates no right, title or interest in favor of defendant No.5 in respect of the second floor of property D-54, Haus Khas, New Delhi and is not binding on the plaintiff. As a consequential relief, decree for injunction has been claimed against the defendants from dealing with, in any manner, with the said property and for possession. Inter alia, it is pleaded by the plaintiff that a dispute arose amongst the family members, which was referred for arbitration and on filing of the award the same was made rule of court and decree in accordance therewith was passed on 11.8.1980. In view of the said decree, the plaintiff and defendants 1 to 3 became owners of respective portions of the properly No.D-54, Haus Khas, New Delhi. They have alleged that on the earlier tenant vacating second floor of property D-54, Haus Khas, New Delhi, it fell vacant, which had fallen to the share of the plaintiff but late Shri Lila Ram Dewan on taking possession of the premises from Mohd. Tahir, the tenant executed lease deed in favor of defendant No.5. Plaintiff thus challenged the act of Lila Ram Dewan executing lease deed on the ground that he had no authority to do so. This suit is being contested by the other defendants as well as by defendant No.5 who filed their respective written statements.
5. Defendant No.5 after farming of the issues filed an application seeking to incorporate additional pleas, which have been incorporated be learned Single Judge in the impugned order. Except the additional pleas 1 and 2, the other additional pleas sought to be raised purport to challenge the award as well as decree assed in terms of the award. As noticed above, learned Single Judge while dismissing the application observed that defendant No.5, who was not a party to the award and the decree cannot be permitted to challenge the same and for that reason amendment cannot be allowed. We find no legal infirmity in the reasons assigned by learned Single Judge. The other defendants, who were party to the award may be entitled to challenge the decree or the award on whatever grounds that are available to them in law but defendant No.5, who was not a party to the award or decree, cannot be permitted to challenge the same. Moreover allowing additional pleas to be added, other than pleas 1 and 2 will amount to introducing a new case by defendant No.5, which was not set up by him in the original written statement for which it has otherwise no locus standi to do so. A third party cannot be permitted to challenge the award or decree on the grounds sought to be pleaded. However, additional pleas No.1 and 2 are such, which are akin to the defense already raised by defendant No.5, which ought not to have been declined by learned Single Judge. Application seeking amendment was filed immediately after framing of issues. Suit is still at the trial stage. Parties were asked to lead their evidence on affidavits. Power to allow an amendment is undoubtedly wide and may be exercised at any stage in the interest of justice, the law of limitation notwithstanding. All amendments will generally be permissible when they are necessary for determination of the real controversy in the suit and in general amendments should not cause prejudice to the other side. By the first tow pleas there was no question of defendant No.5 changing his defense or introducing a new case. Accordingly, we are of the view that the order passed by learned Single Judge to that extent cannot be substantiated.
6. Consequently, the appeal is partly allowed. Defendant No.5 is permitted to carry our amendment by way of adding additional pleas No.1 and 2 only. Remaining order of learned Single Judge dismissing the appellant's application declining addition of the remaining additional pleas is affirmed. Amended written statement will be filed within a period of two weeks to which replication may be filed by the plaintiff within a period of two weeks thereafter.