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Bhupinder Kumar Jain Decd Through Lrs & ... vs Raj Kumari Jain & Ors. on 26 July, 2012

Author: M. L. Mehta

Bench: M.L. Mehta

*                THE HIGH COURT OF DELHI AT NEW DELHI

+                   CM(M) 892/2011 with CM 14397/2011 (stay)

                                           Date of Decision: 26.07.2012

BHUPINDER KUMAR JAIN DECD
THROUGH LRs & ORS.                                      ...... Petitioners

                          Through:     Mr. Vishwa Bhushan Arya, Adv.

                                 Versus

RAJ KUMARI JAIN & ORS.                               ...... Respondents

                          Through:     Mr. J.K. Seth, Sr. Advocate with
                                       Ms Shalini Kapoor and Ms Kriti
                                       Arora, Advs.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This petition under Article 227 of the Constitution seeks assailing of order dated 14th May 2011 of the learned Additional District Judge (ADJ), Central whereby petitioners' application under Order 6 Rule 17 CPC seeking amendments in the grounds of appeal, was dismissed. The petitioners had filed a suit for declaration, recovery of possession and perpetual injunction against the respondents on 19.12.1977. The said suit was dismissed vide judgment and decree dated 17.07.2001. Being aggrieved, the petitioners carried the matter in appeal on 24.08.2001. The instant application under Order 6 Rule 17 CPC was filed by the petitioners in the said appeal seeking amendments in certain grounds of CM(M) 892/2011 Page 1 of 4 appeal as mentioned in para 9 of the said application. It was averred therein that some of the facts sought to be added could not be pleaded by their counsel in the suit and some of the proposed amendments were of legal nature. The application was contested by the respondents and ultimately it came to be dismissed vide the impugned order by the learned ADJ.

2. The impugned order has been assailed in the present petition. It has been submitted by learned counsel for the respondent that by the proposed amendments, the petitioners are trying to set up an entirely new case. It was submitted that the pleas which are now sought to be added were not the part of the pleadings before the Trial Court, so, these cannot be added in the grounds of appeal. Learned counsel also submitted that the case was of the year 1977 and has been protracted by the petitioners for more than three decades.

3. Heard.

4. There is no dispute that the suit was filed in the year 1977. The petitioners sought permission to withdraw the suit on the plea to file a fresh suit on the same cause of action. The same was disallowed, and a review against that order was also disallowed on 23.02.2004. The revision petition against the said order was also dismissed on 17.07.2001. This was challenged by the petitioners by way of appeal being RC 64/2010 wherein the instant application under Order 6 Rule 17 CPC came to be filed resulting its dismissal vide the impugned order by the ADJ.

5. The learned counsel for the petitioners took me through para 9 of the application under Order 6 Rule 17 CPC to demonstrate that all the additional grounds of appeal, which are taken were either questions of law or were those which were already taken in the amended plaint or related to the findings of the Trial Court on issues, which could not have been averred in the amended plaint. He simultaneously also took me through different parts of the amended plaint. The proposed grounds of appeal mentioned at serial No. X, XI (a) related to the findings of the Trial Court, which obviously could not have found mentioned in the amended plaint. As regard to the grounds of registered sale deed dated 29.11.1965, it is noted that this plea finds mention in para 1 of the amended plaint. With regard to ground XI (b) which related to estoppels, Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as 'the Displaced Persons Act') and again to the sale deed dated 29.11.1965, it is noted that so far as the estoppel is concerned, the learned counsel for the respondent had no objection to this ground of appeal. As regards pleadings regarding Displaced Persons Act which is averred in this clause i.e. clause XI-b as also in clauses XV and XVI, it is seen that this was specifically stated at various places in the amended plaint.

6. The proposed additional grounds of appeal mentioned at Sr. No. XII, XIII and XIV related to the findings of the Trial Court regarding issues no. 7, 8 and 10. Certainly these could not have been part of the amended plaint.

7. Having noted that the amendments which were sought to be taken in the grounds of appeal were either legal issues or related to the findings of the Trial Court on different issues or were only explanatory of the pleadings already averred in the amended plaint, I do not see that the respondents were, in any way, going to be prejudiced or taken by surprise. It is, no doubt, that the amendments which have been sought are considerably belated, but, at the same time it is also seen that the said amendments are certainly relevant and necessary for the proper and final adjudication of the controversy that has been going on between the parties.

8. Now at this stage, the learned counsel appearing for the respondents has requested that, having regard to the fact that the case is very old, the appellate court may be requested to expedite the final disposal of the appeal. There cannot be two opinions on this submission of learned Senior Counsel. While allowing the petition and setting aside the impugned order, the petitioner is directed to file grounds of appeal, if not already filed, within two weeks. The learned appellate Court is requested to make sincere efforts to dispose of this appeal within five months from today. The petition is disposed of accordingly.

M.L. MEHTA, J.

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