Delhi District Court
Kesar Devi Baid & Ors vs Anita Pal on 27 April, 2013
IN THE COURT OF PAWAN KUMAR MATTO,
ADDITIONAL DISTRICT JUDGE 03 (EAST),
KARKARDOOMA COURT, DELHI
Suit No.402/2009
In the matter of :
Kesar Devi Baid & Ors. .....Plaintiffs
Versus
Anita Pal .....Defendant
O R D E R
27.04.2013
1. This order of mine will dispose of three applications; first one is U/s 151 CPC filed by the plaintiff and two applications U/o 6 rule 17 CPC filed by the defendant.
2. Briefly, stating the defendant (herein) namely Smt. Anita Pal had filed civil suit in the Honourable High Court of Delhi and in that suit the plaintiff (herein) had filed written statement and counter claim and defendant (herein) had filed written statement, but the same suit was withdrawn by the defendant (herein) and the counter claim was sent to the District Court, in view of the pecuniary jurisdiction thereof. The defendant (herein) has again filed written statement in this court and the plaintiff (herein) has filed an application U/s 151 CPC for rejection / return of the written statement filed in this case, on the averments that Smt. Anita Pal i.e. defendant (herein) had filed a civil suit bearing CS (OS) No.130/07 for specific performance against Kesar Devi Baid and Sampat Baid in the Honourable High Court of Delhi and Smt. Kesar Devi and Sampat Singh had filed the written Suit No.402/2009 Page 1 of 40 statement to the suit of Smt. Anita Pal and they had also filed counter claim against Smt. Anita Pal and Smt. Anita Pal had filed the replication to the written statement and also written statement to the counter claim dated 10.04.07 and Smt. Anita Pal was allowed to withdraw her suit vide order dated 16.12.08 passed by Mrs. Justice Hima Kohli and the Hon´ble High Court directed the registry of High Court of Delhi to detach the counter of the plaintiffs herein and transferred the same to the Distt. Court for further proceedings. They have further stated that despite of knowing the fact that she has already filed the written statement to the counter claim of the plaintiffs herein, she has again filed another written statement / counter claim. They have further stated that there is no provision of law, which may allow the defendant to file written statement more than once and the defendant has no right to file another written statement and they have further stated that the written statement dated 19.12.09 should not be allowed to kept on record, as the same is not permissible. They have further stated that in case the second written statement is allowed to be taken on record, as part of the pleadings, the same will cause an irreparable loss and injury to the counter claimant / plaintiff (herein) and the same would be against the principle of equity and natural justice. They have further stated that the filing of the written statement again before this court is nothing but a misuse of the process of the law and sought returning / rejection of the written statement / counter claim.
Suit No.402/2009 Page 2 of 40
3. On the other hand, the defendant (herein) replying to the application has submitted that Ld. predecessor of this court vide it's order dated 07.07.09 was pleased to grant an opportunity to file the written statement and the plaintiff (herein) had not raised any objection at that point of time. She has further stated that on 19.12.09 the defendant had filed the written statement, which is not an additional written statement, but an amended written statement cum counter claim and the same has been filed after the allowing of the oral application and the amended written statement was filed by the defendant after registration of the counter claim of Smt. Kesar Devi Baid and Sh. Sampta Baid. She has further stated that she has filed a civil suit for specific performance against the plaintiff (herein) under mistaken belief. She has further stated that defendant is entitled to file amended written statement and no separate permission is required for filing such amended written statement and she has called the application filed by the plaintiff (herein) as abuse of the process of the law. She has also stated the written statement cum counter claim dated 19.12.09 filed by the defendant (herein) Smt. Anita Pal is already there on the record. Replying to the application on merit, she has not denied of filing of the previous written statement before Honourable High Court of Delhi. She has further stated that in the light of the order dated 16.12.08 passed by the Honourable High Court of Delhi, no further permission was required for filing the Suit No.402/2009 Page 3 of 40 amended written statement by Smt. Anita Pal and the predecessor of this court has allowed her to file the same vide its orders dated 05.02.09 and 07.07.09 and the defendant has filed the same in pursuance of the said orders and prayed for dismissal of the application under consideration filed by the plaintiff (herein) U/s 151 CPC.
4. After the filing of the application U/s 151 CPC by the plaintiff (herein), the defendant has filed an application U/o 6 rule 17 CPC, on the averments that she had originally filed his suit for specific performance against Smt Kesar Devi Baid and Sampat Baid under the mistaken belief that the plaintiffs herein namely Smt Kesar Devi is the real owner of the suit property and Smt Kesar Devi and Sampat Baid had defended the said suit by filing Written statement and Counter Claim and thereafter Smt Anita Pal had filed replication cum written statement to the counter claim on dated 10.4.2007 and till the filing of the replication cum written statement of counter claim by Smt Kesar Baid and Sampat Baid, she remained under the mistake of the fact regarding the actual ownership of the suit property, due to the false representation. However, during the pendency of the said civil suit Smt Anita Pal had come to understand that Kesar Devi is not the actual owner of the suit property and Smt Kesar Devi and Sampat Baid had committed fraud to sell the suit property and thus the agreement to sell entered into between Smt Kesar Devi Baid and Anita Pal had no legal sanctity in the eyes of law and in fact Ravinder Suit No.402/2009 Page 4 of 40 Kumar i.e. husband of Anita Pal has become true and lawful owner of the entire suit property by virtue of legal regd. sale deed dated 07.05.07 duly executed by the erstwhile owner namely Shri R. Chand Sharma and the above said facts were not within the knowledge of Smt Anita Pal at the time of filing of the said suit and in view of the said developments, the original suit for specific performance filed by Smt Anita Pal had become infructuous. Accordingly, she was allowed to withdraw the said suit vide order dated 16.12.2008 and she was given liberty to seek all civil /criminal remedies against Smt Kesar Devi Baid and Shri Sampat Baid for committing fraud and false inducement to her and Smt Anit Pal had already filed criminal complaint and suit for recovery of Rs. 17,25,000/ in the form of counter claim in the present proceedings and in view of the withdrawal of the suit for specific performance by Smt Anita Pal, the counter claim of Smt Kesar Devi Baid and Shri Sampat Baid was registered as separate suit and thus they became plaintiff, which was transferred to this court in view of the pecuniary jurisdiction and amended memo of the parties was filed by Smt Kesar Devi Baid and Shri Sampat Baid on 16.12.2009 as plaintiff. She has further stated that since the Hon'ble High Court of Delhi had given liberty to Smt Anita Pal to seek appropriate remedy, which includes right to amend the pleadings.
5. She has also stated that since the predecessor of this court had permitted her counsel in the presence of the other counsel to file Suit No.402/2009 Page 5 of 40 written statement in the counter claim of Smt Kesar Devi Baid and Shri Sampat Baid vide order dated 7.7.2009, so, she had filed the written statement cum counter claim for recovery of Rs. 17,25,000/ on dated 19.12.2009 and the plaintiffs have filed an application for rejection or return of the written statement filed on dated 19.12.2009 and in order to avoid the technicalities and the objections raised by the plaintiffs in an application u/s 151 CPC for rejection/return of the written statement, the defendant has filed the application u/o 6 rule 17 of CPC. It is further stated that the suit of the defendant (herein) is no more pending and it is the counter claim of Smt. Kesar Devi Baid and Sampat Baid which has been registered as separate suit. Therefore, Anita Pal has every right to file the Written statement and the same cannot be treated as additional Written statement and also stated that Kesar Devi Baid is not the actual owner and she was not in lawful possession and this fact has come to the knowledge of Anita Pal after filing of the replication cum Written statement to the counter claim of the plaintiff (herein) on10.04.2007 in original suit, during the pendency of the said suit. It is also averred that the the plaintiffs (herein) have no right, title or interest in the suit property and the plaintiffs have already cheated the defendant of Rs.17,25,000/ by falsely representing to be owners of the suit property on the false title documents. It is also stated that amendments sought to be incorporated is relating to the case, which are necessary for the decision of the present case and there is a bonafide and genuine Suit No.402/2009 Page 6 of 40 ground to amend the Written statement, as the issues have not yet been framed and prayed accordingly to amend the Written statement.
6. On the other hand, the plaintiffs have not filed reply to the said application u/o 6 rule 17 CPC filed by the defendant and Ld. Counsel for the plaintiffs had stated that he will straightway argue on the said application and after part arguments on the said application, the defendant has filed another application u/o 6 rule 17 CPC on dated 15.02.2013 and sought to amend her previous application u/o 6 rule 17 of CPC, stating therein that the defendant wants to add paras no.1 to 4 before preliminary objections, which are as under : "1. That the counter claimants/plaintiffs Smt. Kesar Baid and Sh. Sampat Baid have filed a counter claim, which has been registered as a separate suit after the withdrawal of C.S. (OS) No.130/2007 by the plaintiff Smt. Anita Pal from the Hon'ble High Court of Delhi. The said counter claim is registered as Suit No.402/2009. The position of parties have been altered due to withdrawal of the suit by Smt. Anita Pal, who shall be now be a defendant in the counter claim/suit of the erstwhile defendant Smt. Kesar Baid.
2. That the counter claimant/plaintiff no.1 Smt. Kesar Baid has impersonated herself to be the owner of property No.544, Jwala Nagar, Shahdara, Delhi and on the basis of false and fabricated sale documents in her favour Smt. Kesar Baid and her husband Sh. Sampat Baid had induced the defendant. Smt. Anita Pal to enter into an agreement to sell dated 21st August, 2006 and subsequent agreements and was further induced to Suit No.402/2009 Page 7 of 40 pay Rs.17,25,000/ to plaintiff, Smt. Kesar Baid. Believing, the plaintiff Smt. Kesar Baid, to be the lawful owner and in lawful possession of the suit property due to impersonation, which the plaintiff was not, the defendant Smt. Anita Pal filed a suit for specific performance in the Hon'ble High Court of Delhi with prayer for direction to the plaintiff to execute Sale Deed of the said property in her favour being CS (OS) No.130 of 2007 and wherein the Hon'ble High Court was pleased vide its order datd 23rd January, 2007 to restrain the plaintiff, herein and their agents etc. from interfering in possession of the defendant/counter claimant, Smt. Anita Pal.
3. That during the pendency of the aforesaid suit filed by the defendant Smt. Anita Pal in Hon'ble High Court of Delhi, the defendant's husband namely Sh. Ravinder Kumar came across the real and lawful owner of the said built up property namely Sh. R. Chand Sharma S/o Sh. Bankey Lal Sharma R/o B26, Laxmi Nagar, Shahdara, Delhi. Thereafter, on 7th May, 2007, the said Sh. R. Chand Sharma had conveyed the suit property with its possession by executing a registered Sale Deed in favour of Sh. Ravinder Kumar S/o Sh. Sukhbir Singh for a consideration of Rs.4,00,000/ (Rupees four lacs only). The said sale deed was duly executed and registered at the SubRegistrar office and thereupon, on 18th June, 2007, the Municipal Corporation of Delhi vide its letter of Mutation dated 18th June, 2007 and on 27th June, 2008, the concerned Tehsildar mutated the suit property in the Land Records in the name of Sh. Ravinder Kumar, husband of the defendant, Smt. Anita Pal after inquiring into the title, possession, hearing of Suit No.402/2009 Page 8 of 40 the parties and recording deposition of the previous title owners and adjudicating the matter in accordance with law.
4. That the aforesaid acts and records clearly demonstrated that the plaintiff Smt. Kesar Baid had no saleable interest in the suit property, she was neither the owner nor had law full possession of the suit property at any relevant point of time nor was entitled to sell the suit property and had thus, cheated the defendant Smt. Anita Pal by impersonating herself to be the owner and fraudulently induced her to part with and pay a sum of Rs.17,25,000/. The suit for specific performance filed by Smt. Anita Pal, defendant herein thus, became infructuous and the said suit was withdrawn with liberty to institute appropriate proceedings against the plaintiff, herein Smt. Kesar baid for recovery of the amount of Rs.17,25,000/ paid to her and for prosecuting the plaintiff and her husband Sh. Sampat Baid for cheating, fraud, impersonating and other offences committed by them. The Hon'ble High Court of Delhi had allowed the defendant, herein to withdraw the suit for specific performance vide order dated 16th December, 2008. However, the false counter claim filed by Smt. Kesar baid in the said suit withdrawn by the Smt. Anita Pal was registered and transferred to this Hon´ble Court.
The defendant has also sought substitution of paras no.1 to 5 in place of existing paras no.1 to 3 in the original Written statement dated 10.08.2007, which are as under : "Preliminary Objections:
1. That the counter claimants/plaintiffs have no locus Suit No.402/2009 Page 9 of 40 standi to file the present suit (originally a counter claim), as the plaintiff no.1 is not the lawful owner nor had the lawful possession of the suit property at any relevant point of time. The plaintiffs have failed to file chain of title documents in original from which the plaintiff no.1 has allegedly derived the title of the suit property. As per the sale deed dated 2nd January, 1990 executed by Sh. Sampat Baid as attorney of one Smt. Veena, wife of Sh.
Vidya Bhushan the property in question was alleged to be transferred in favour of Smt. Kesar Baid, wife of the executor. The said Smt. Veenahas never produced by the plaintiffs in other proceedings nor any title documents executed qua the suit property in favour of said Smt. Veena has been placed on record by the plaintiff. In fact, said Smt. Veena has no concern and had no right, title or interest in the suit property. Thus, the plaintiffs are not entitled being neither owner nor ever being in lawful possession of the suit property for the recovery of possession and mesne profits, as sought in the present suit/counter claim.
2. That the counter claim/suit of the plaintiff, Smt. Kesar Baid is defective and is not maintainable for nonjoinder of actual owners/previous owners, who are necessary parties and is liable to be rejected on this ground.
3. That the counter claim/suit of the plaintiff, Smt. Kesar baid is not maintainable in the present form and is without any cause of action.
4. That the counter claim/suit of the plaintiff, Smt. Kesar Baid has not been properly valued for the Suit No.402/2009 Page 10 of 40 purposes of court fees.
5. That there is no estoppel against law and merely because the defendant entered into an agreement to sell with plaintiff no.1, Smt. Kesar Baid on false representation impersonating herself to be owner on false and fabricated documents, would not create valid title, saleable interest in Smt. Kesar Baid qua the suit property."
The defendant has also sought addition of the paras A to F under title "brief facts" in the Written statement dated 10.08.2007, which are as under : "Brief facts of the case : A. That the suit property was originally a part of land under Khasra No.704 of Village Chandrawali at Shahdara inherited by Sh. Balbir Sharan Bhatnagar, Sh. Sunder Sharan Bhatnagar (sons) and Smt. Shashi Kumari (daughter) of late Sh. Devi Sharan. On 20th Jan. 1969, Sh. Balbir Sharan Bhatnagar and Smt. Shashi Kumari transferred their shares in the said property also in favour of brother Sh. Sunder Sharan Bhatnagar, vide a registered General Power of Attorney dated 20th Jan. 1969 registered on 22nd Jan. 1969 as document No.12, Book No.IV, Vol. No.1 at pages 141 to 142 before SubRegistrarIV, Delhi and thereby made the said Sh. Sunder Sharan Bhatnagar as the owner and competent to transfer the suit property under Khasra No.704. On 17th June, 1975 Sh. S.S. Bhatnagar conveyed the suit property in favour of Sh. R. Chand Sharma, son of Sh. Bankey Lal Sharma, resident of B26, Laxmi Nagar, Shahdara, Delhi. After about 32 years, on 7th May, 2007 Sh. R. Chand Sharma further transferred the whole of the suit property along with its possession to the husband of defendant. Sh. Ravinder Kumar by executing a registered Sale Deed in his favour Suit No.402/2009 Page 11 of 40 for a consideration of Rs.4 lacs and thereafter, the Tehsildar, S.D.M. and the SubRegistrar of the area concerned after carrying out a thorough search, scrutiny and enquiry in accordance with law, have on 30th June, 2008 registered the mutation and transfer of the ownership of the suit property from its original owners namely, Sh. Balbir Sharan etc. to and in favour of husband of defendant, Sh. Ravinder Kumar vide Khasra no.3137/704. B. That the predecessor in interest of the suit property Sh. R. Chand Sharma, son of Sh. Bankey Lal Sharma was not able to regularly visit and take care of the suit property and the suit property was lying locked for last several years. The plaintiff No.2 Sh. Sampat Baid had tried to usurp the suit property by fraudulently framing a false power of attorney purported to have been executed by one stranger Smt. Veena, wife of Sh. Vidya Bhushan in his favour in 1986 and thereafter, he represented himself as the owner of the property and executed a sale deed dated 2nd Jan., 1990 in favour of his wife, plaintiff no.1 herein. Smt. Veena has nothing to do with the suit property or with the owners of the suit property and in fact she was the wife of a notorious criminal of the area namely, Sh. Vidya Bhushan, who was ultimately extern out from Delhi. The chain of records of the title of the said property relied and filed by Defendant no.2, Sh. Ravinder Pal also do not admit of any such person as Smt Veena, wife of Sh. Vidya Bhushan or Sh. Sampat Baid or Smt. Kesar Devi Baid as ever having any concern with the suit property in any way, whatsoever. The plaintiffs have been making false averment with regard to title of the suit property and fabricated false documents qua the suit property and relying upon them and therefore, are liable to be prosecuted under Sec.340 Cr.P.C. The defendant Smt. Anita Pal reserves the right to file separate application for Suit No.402/2009 Page 12 of 40 perjury against Smt. Kesar baid and Sh. Sampat Baid. C. That the suit property has been mutated in the name of husband of the defendant, Sh. Ravinder Pal and during the said proceedings before the court of SubDivisional Magistrate, Sh. Sunder Sharan Bhatnagar, who had inherited the suit property from his father late Devi Sharan Bhatnagar deposed on 17th June, 2008 before the learned Tehsildar as to the total chain of transaction of the suit property till date. Further, Sh. R. Chand Sharma also deposed to the fact of execution of the registered Sale Deed of the suit property in favour of husband of the defendant, Sh. Ravinder Kumar. The evidence so adduced clearly shows that none of the persons from whom the plaintiffs claim to have drive title of the suit property i.e., Smt. Veena, Sh. Sampat Baid etc. had any lawful transaction or any concern with the suit property or ever lawfully drive title of the suit property. On the other hand, the above fact would show that the plaintiffs have framed the false documents qua the suit property knowing the same to be false to their ulterior motives to illegally grab the property.
D. The plaintiffs have by showing false and fabricated documents of the suit property had committed fraud and cheating by enticing the defendant to enter into agreement of sale dated 21st Aug., 2006 of the suit property and subsequent agreement dated 29th Aug., 2006 and 17th Sept., 2006 and further by fraudulently receiving an amount of Rs.17.25 lacs from the defendant no.1. For the aforesaid act of the plaintiffs the defendant no.1 has already filed a criminal complaint under Section 420,423,466,467,468,471 and 474 IPC and the same is pending against the plaintiffs no.1 and 2. The defendant is also filing the present counter claim for recovery of the Suit No.402/2009 Page 13 of 40 amount cheated from her, which also creates charge over the suit property.
E. That the plaintiffs have also malafidely and with oblique motive tried to get install an electricity connection in the suit property in the name of plaintiff no.1. However, the same was opposed by the defendant's husband. Sh. Ravinder Kumar and after representation made to BSES the installation of the said electricity meter was refused and the connection was cancelled. On the other hand, the husband of defendant had apart from mutation of the suit property by the M.C.D. and in the land records of Tehsildar, SubRegistrar and other authorities has also installed water connection in the suit property by Delhi Jal Board and electricity connection was installed after due enquiry and scrutiny of title documents. The husband of the defendant, Sh. Ravinder Pal is the sole absolute owner of the suit property by virtue of registered sale by Sh. R. Chand Sharma made on 7th May, 2007 and delivery of possession of whole of the suit property.
F. That the plaintiffs are bent upon the harass the defendant and her family and in that sequence had filed a false and concocted suit for injunction seeking restraint order against the husband of the defendant for permanent and mandatory injunction qua the suit property. The said suit was pending before the court of Sh. Pulatsya Parmachala, Civil Judge, Karkardooma Courts, Delhi and the interim application for injunction filed by the plaintiffs has already been dismissed in favour of husband of the defendant, Sh. Ravinder Kumar on 20th April, 2009, Infact, the plaintiffs have malafidely and without notice has withdrawn the said suit on 8th July, 2009 in order to avoid filing of original false and fabricated title documents."
Suit No.402/2009 Page 14 of 40 The defendant has further sought amendment in the para of reply on merits, which is as under : Reply on merits:
"3. Last 3 lines of para 3 are sought to be deleted, which are quoted as under : "......The true facts have been set out by the plaintiff in her plaint and may kindly be read herein as part of this written statement in answer to the counter claim."
The defendant has further sought substitution of para no.5 in the original written statement dated 10.04.2007, which is as under: "5. That the contents of para 5 of suit/counter claim are base less, self conflicting, wrong and denied by the defendant. It is wrong and denied that the defendant or any one at her behest broke open the lock and entered the Ist Floor of the suit property on 15th November 2006 of the local police is in connivance with the defendant. The plaintiffs have received the commensurate consideration of sale i.e., 17,25,000/ in garb of false and fabricated documents, had tried to give possession of the First Floor and upper Floors of the suit property, which was not lawful, as the plaintiffs themselves were not in law full possession of the suit property. In fact, the plaintiff no.2 has got a false case thereby, registered against the defendant's husband and father in law. The record of this suit withdrawn by defendant, Smt. Anita Pal would show that after lawfully and peacefully taking possession of the first and second floor of the suit premises; it was not the plaintiffs but the defendant and her family suffered due to fraud and impersonation of plaintiff no.1 and thereby inducing the defendant to enter in to the agreement and part with Rs.17,25,000/ payment made to the plaintiffs. Suit No.402/2009 Page 15 of 40
The falsity of various false proceedings initiated by the plaintiff no.2 against the defendant's husband and father in law viz. U/s 107/145/150/151/154 Cr.P.C., by either colluding with the police officers or misleading them with respect to the possession of the plaintiff over first and second floor of the suit property is clear from the fact, that the defendant herself had filed the previous suit for specific performance and also sought restraint from interference of possession of the defendant from the plaintiff, herein. It is denied for want of knowledge that plaintiffs have filed any complaint in the Human Rights Commission. The defendant has a charge over the suit property, since a substantial amount of Rs.17,25,000/ has been paid by defendant for sale of the suit property." The defendant has also sought amendment in para no.6, starting from word ".........the plaintiff has already set out under paras no.9 to 11 of her plaint....... till the end of the para.
The defendant has also sought deletion of the words starting from "........illegally from the said premises. The plaintiff after paying the commensurate consideration of sale....... till the end of para, in para no. 910 of the original Written statement dated 10.04.2007 by replacing the following para, which is as under : "910............the plaintiffs have received the commensurate consideration of sale i.e. 17,25,000/ in garb of false and fabricated documents, have tried to give possession of the first floor and upper floors of the suit property, which was not lawful, as the plaintiff themselves were not in lawful possession of the suit property. However, as aforesaid the plaintiffs are not lawful owner and were never in lawful possession and therefore, had never given lawful possession to the defendant of the suit property. Hence the plaintiffs are not entitled for the recovery of possession of the suit property and for any Suit No.402/2009 Page 16 of 40 other relief."
The defendant has also sought to add following words in para no.11 at the end of para, as "........and the defendant has charged over the suit property."
The defendant has also sought substitution of para no.12 of the original written statement, which is as under : "12. That the contents of para 12 of the suit/counter claim are wrong and denied by the defendant. Defendant after paying the commensurate consideration of sale had got a charge over the property. The possession received from the plaintiff, however, the plaintiffs were never owner nor were having lawful possession themselves. The suit property has now stands purchased by a Registered Sale Deed dated 7th May, 2007 by the husband of the defendant from the actual owner Sh. R. Chand Sharma and the husband of the defendant has already filed a suit for declaration and injunction against the plaintiffs. That the counter claim is liable to be rejected by this Hon´ble Court."
Prayer Clause:
The defendant also sought to delete words in the prayer clause of the original Written statement, which are as under : ".........against the defendant and in favour of the plaintiff."
The defendant has also prayed for substitution of the word "plaintiff" by "defendant" at all the places where Smt. Anita Pal has been referred to in the Written statement dated 10.04.2007. It is further averred that no prejudice would cause to the plaintiff and prayed for allowing the application.
7. On the other hand, the Ld. Counsel for the plaintiffs has submitted Suit No.402/2009 Page 17 of 40 that plaintiffs are no more desirous to file any reply to this application and he will straightway argue on the same application.
8. Accordingly, I have heard the ld. counsels for the parties on all the three applications and perused the record.
9. The Ld. Counsel for the plaintiffs has submitted that the plaintiffs have filed the application U/s 151 CPC for rejection / return of the written statement cum counter claim filed in this case on dated 04.05.2010. He has further submitted that the defendant namely Smt. Anita Pal had filed a civil suit bearing CS (OS) No.130/07 for specific performance against Kesar Devi Baid and Sampat Baid in the Honourable High Court of Delhi and Smt. Kesar Devi and Sampat Baid had filed the written statement to the said civil suit of Smt. Anita Pal and they have also filed counter claim against Smt. Anita Pal (who is impleaded as defendant herein) and Smt. Anita Pal had filed the replication to the written statement and also written statement to the counter claim filed by the plaintiffs (herein) on dated 10.04.07 and the plaintiffs (herein) have claimed the relief of recovery of Rs.10 lakhs alongwith interest @ 18% p.a. and decree of declaration, declaring that the possession of the plaintiff (in the said suit) of the first floor and second floor of the suit property bearing No.544, Near Ram Leela Maidan, Jwala Nagar, Shahdara, Delhi32 is illegal and also sought relief of mandatory injunction, directing the plaintiff (in the said civil suit) to restore the possession of the first floor and second floor of the suit property to the defendant no.1 (i.e. plaintiff Suit No.402/2009 Page 18 of 40 herein) and also sought direction for the plaintiff (in the said civil suit) to pay Rs.25000/ per month towards unauthorized used and occupational charges with effect from November, 2006 till the restoration of the possession to the defendants (i.e. the plaintiffs herein) and he has further submitted that the defendant had filed the Written statement to the counter claim of the plaintiffs (herein) in the Hon´ble High Court on dated 10.04.07 and she had admitted the ownership of the plaintiffs (herein) in the said Written statement of counter claim and the plaintiff namely Smt. Anita Pal (in the said civil suit) had sought permission to withdraw the said suit and the Hon´ble High Court of Delhi had allowed to Smt. Anita Pal to withdraw the said suit vide order dated 16.12.08 and he has also submitted that the fact of filing of the Written statement to the counter claim of the plaintiff (herein) on dated 10.04.07, was well within the knowledge of the defendant namely Smt. Anita Pal, but, despite of categorical knowledge of the same fact, she has filed second written statement cum counter claim on dated 19.12.2009 and the defendant is claiming it as additional Written statement cum counter claim. He has further submitted that since the defendant had already filed written statement to the counter claim in the Hon´ble High Court on dated 10.04.07, so, the second Written statement cum counter claim filed by the defendant on dated 19.12.2009 are liable to be rejected, as there is no provision of law, which may allow to the defendant to file written statement more than once and he has further submitted that since the Suit No.402/2009 Page 19 of 40 defendant had already filed the Written statement in the Hon´ble High Court, so, the counter claim cannot be allowed to be filed by the defendant after filing of the Written statement. He has further submitted that since the law does not permit to file the second Written statement, so, the Written statement cum counter claim filed on dated 19.12.09 are liable to be rejected.
10. He has further submitted that the defendant had admitted the fact of ownership of the suit property of the plaintiffs (herein) in her Written statement to the counter claim filed in the Hon´ble High Court on dated 10.04.2007, whereas, in the Written statement filed by the defendant (herein) on dated 19.12.2009 in this court, she has taken a contradictory plea that the plaintiff no.1 (herein) is not the lawful owner. He has further submitted that on the one side the defendant (herein) had taken the plea in her second written statement filed on dated 19.12.2009 that the the plaintiff no.1 is not the lawful owner of the suit property and she had no lawful possession over the suit property at any relevant point of time and she has concocted a false story and under the mistaken belief that Kesar Devi Baid and Sampat baid are the real owners of the suit property due to the false representation. However, during the pendency of the said civil suit, Smt Anita Pal had come to understand that Kesar Devi Baid is not the actual owner of the suit property and Smt Kesar Devi Baid and Sampat Baid had committed fraud to sell the suit property and thus the agreement to sell entered into between Smt Kesar Devi Baid and Suit No.402/2009 Page 20 of 40 Anita Pal had no legal sanctity in the eyes of law and in fact Ravinder Kumar i.e. husband of Anita Pal has become true and lawful owner of the entire suit property by virtue of legal regd. sale deed dated 07.05.07 duly executed by the erstwhile owner namely Shri R. Chand Sharma. He has further submitted that on the one side the defendant has taken the plea that her husband has purchased the suit property vide sale deed dated 07.05.07 from Sh. R. Chand Sharma. He has further submitted that the plaintiffs (herein) have placed on record the sale deed dated 09.07.07, which clearly manifests that the defendant has managed to forge the same and the suit property is alleged to have been purchased by the defendant Anita Pal from the plaintiff no.1 and counsel for the plaintiffs has submitted that the photograph of the vendor thereon is not of the plaintiff no.1 (herein) and some lady was made to stand in place of the plaintiff no.1, who has impersonated herself as Kesar Devi Baid and executed the sale deed dated 9.7.2007 in favour of defendant (herein).
11. He has further submitted that the perusal of certified copy of the said sale deed makes it clear that how the defendant (herein) namely Smt. Anita Pal made some lady to stand in place of Kesar Devi Baid and got the sale deed executed in her favour on 09.07.2007 and this fact has come to the knowledge of the plaintiffs (herein) during the pendency of the present case. He has further submitted that the photograph of the defendant (herein) is also affixed on the said sale deed of the suit property of the present suit. He has further submitted Suit No.402/2009 Page 21 of 40 that the another photograph of the lady affixed on the sale deed dated 09.07.2007 makes it clear that some lady had impersonated herself to be Kesar Devi Baid and during the arguments on the application under consideration, defendant and Kesar Devi Baid had come in the court and the defendant had stated in the court that she never met with Kesar Devi Baid. Ld. Counsel for the plaintiff has further submitted that by way of filing the second Written statement, that too, without leave of the court, the defendant is misusing the process of law. He has further submitted that this court never granted permission to file the Written statement or counter claim in this court and the defendant has misinterpreted the orders dated 05.02.2009 and 07.07.2009 passed by this court. He has further submitted that since on the one side in her Written statement filed in the Hon'ble High Court on dated 10.04.07, the defendant had admitted that the plaintiff no.1 is the owner of the suit property and in the second Written statement filed in this court on dated 19.12.09, the defendant has denied the ownership of the plaintiff no.1 i.e. Kesar Devi Baid and he has further submitted that at the same time the conduct of the defendant is also relevant that she had got a sale deed dated 09.07.07 executed in her favour of the suit property, which is the result of the impersonation and the sale deed is a registered document and from such conduct of the defendant, it is clear that in her second Written statement filed in the court on dated 19.12.09, she has denied the ownership of the plaintiff no.1 and she had got a sale deed executed in her favour on dated Suit No.402/2009 Page 22 of 40 09.07.2007 by way of making some lady to stand in place of Kesar Devi Baid, which clearly manifests that the defendant has not come to the court with the clean hands and the stands taken by the defendant are contradictory. He has further submitted that the second application filed by the defendant for seeking amendment is nothing but is a gross misuse of process of law, as the defendant had filed the Written statement to the counter claim of the plaintiffs in the Hon´ble High Court on dated 10.04.07 and again on dated 19.12.09 and the defendant has filed the Written statement cum counter claim and after almost conclusion of the arguments on her first application u/o 6 rule 17 CPC, she has filed another application u/o 6 rule 17 CPC on dated 15.02.2013 and sought to delete and substitute the paras of her Written statement, which clearly manifests that the defendant is still desirous to file third Written statement and also submitted that this is also a gross misuse of the process of law. He has further submitted that the defendant has taken the possession from the plaintiffs in consequence to an agreement to sell entered into between the plaintiffs and the defendant and this is an admitted fact by the defendant that she had entered into an agreement to sell and she had filed a suit for specific performance against the plaintiffs (herein) in the Hon´ble High Court of Delhi, which was subsequently withdrawn. He has further submitted that the defendant has filed the application u/o 6 rule 17 CPC after filing of the application by the plaintiffs u/s 151 of CPC and also submitted that since the defendant has filed the Suit No.402/2009 Page 23 of 40 second Written statement, which is not permissible under the law and applications filed u/o 6 rule 17 CPC subsequent to the filing of the Written statement are liable to be dismissed, as the amendment in the Written statement, if allowed, will cause a great prejudice to the rights of the plaintiffs, as the defendant had taken the possession from the plaintiffs and she had admitted in her Written statement to the counter claim filed on dated 10.04.07 in the Hon´ble High Court that the plaintiff no.1 is the owner and now she is desirous to deny the ownership of the plaintiffs (herein), so, the defendant is estopped by her acts and conducts to deny the ownership of plaintiff no.1. He has further submitted that since the malafide intention of the defendant is quite clear from her acts and conducts, who has filed an application u/o 6 rule 17 CPC after filing of the application U/s 151 CPC by the plaintiffs, so, both the applications u/o 6 rule 17 CPC are liable to be dismissed, being false, frivolous and devoid of merit and the application U/s 151 CPC filed by the plaintiffs, is liable to be allowed.
12. On the other hand, the Ld. counsel for the defendant has submitted that the Ld. predecessor of this court vide it's orders dated 05.02.2009 & 07.07.09 was pleased to grant an opportunity to file the amended written statement. He has further submitted that on dated 19.12.09 the defendant had filed the written statement, which is not an additional written statement, but is an amended written statement cum counter claim and the same has been filed after the allowing of the oral application. He has further submitted that Smt. Anita Pal i.e the Suit No.402/2009 Page 24 of 40 defendant (herein) had already filed the written statement on dated 19.12.09 in this court, after the grant of permission by this court and she has filed the formal application for seeking amendment in the Written statement. He has further submitted that the defendant (herein) has filed a civil suit for specific performance against the plaintiffs (herein) under the mistaken belief and the defendant is entitled to file amended written statement and she is entitled to withdraw the admission made in her previous written statement and no separate permission is required for filing such amended written statement and she has called the application filed by the plaintiff (herein) u/s 151 of CPC, as an abuse of the process of the law and also submitted that the written statement cum counter claim filed on dated 19.12.09, by the defendant (herein) namely Smt. Anita Pal cannot be rejected or returned. He has further submitted that in the light of the order dated 16.12.08 passed by their lordship of High Court of Delhi, no further permission was required for filing the amended written statement by Smt. Anita Pal and the predecessor of this court had allowed her to file the same vide its orders dated 05.02.09 and 07.07.09 and the defendant has filed the same in pursuance of the said orders and prayed for dismissal of the application under consideration filed by the plaintiff (herein) U/s 151 CPC and also submitted that the amendments sought by the defendant are essential for the proper adjudication of the case and also submitted that law of amendments is lenient regarding the amendments in the Written statement and prayed Suit No.402/2009 Page 25 of 40 for dismissal of application U/s 151 CPC and for both the applications u/o 6 rule 17 CPC.
13. I have given thoughtful consideration to the submissions made by the ld. counsels for the parties and perused the record.
14. Perusal of the record shows that the defendant (herein) namely Smt. Anita Pal had filed civil suit for specific performance in the Honourable High Court of Delhi against the plaintiffs (herein) and in that suit, the plaintiffs (herein) had filed written statement and counter claim and defendant (herein) had filed written statement in the Hon ´ble High Court, but, the same suit was withdrawn by the defendant (herein) and the counter claim filed by the defendants (in the said civil suit) was sent to the District Court, in view of the pecuniary jurisdiction thereof. The defendant (herein) has again filed written statement and counter claim in this court on dated 19.12.09 and the plaintiffs (herein) have filed an application U/s 151 CPC for rejection / return of the written statement cum counter claim filed in this court by the defendant on dated 19.12.09, stating that since the defendant (herein) namely Smt. Anita Pal had already filed the Written statement to the counter claim of the plaintiffs (herein) in the Hon´ble High Court, so, the Written statement cum counter claim filed by the defendant are liable to the rejected, as the law does not permit to file the Written statement more than once and the counter claim could be filed by the defendant with the Written statement filed on dated 10.04.07 in the Hon´ble High Court. Whereas, the ld Suit No.402/2009 Page 26 of 40 counsel for the defendant (herein) has submitted that vide orders dated 05.02.09 and 07.07.09, the Ld. predecessor of this court had granted the opportunities to file the written statement and their lordship of Delhi High Court vide its order dated 16.12.08 was pleased to allow the defendant to avail civil as criminal remedy. So, there was no need to take permission from the court to file the additional / amended Written statement.
15. I have perused the record. But, the perusal of the orders dated 05.02.09 & 07.07.09 passed by the predecessor of this court, which make it clear that predecessor of this court had never granted permission to the defendant to file the Written statement or counter claim and from the perusal of the order passed by their lordship of Delhi High Court on dated 16.12.08, it is clear that their lordship has not allowed the defendant to file the Written statement second time. The Ld. counsel for the defendant has submitted that the Written statement filed on dated 19.12.2009 in this court is an amended Written statement. But, from the perusal of the record, it is clear that the defendant had never been granted permission to amend the Written statement or to file the amended Written statement and in the absence of any categorical order of the court, the Written statement cum counter claim filed by the defendant on dated 19.12.2009 cannot be treated as an amended Written statement and from the perusal of the record, it is clear that the defendant has filed the Written statement cum counter claim on dated 19.12.2009 without any permission of the Suit No.402/2009 Page 27 of 40 court and the Ld. counsel for the defendant has tried to mislead this court that the predecessor of this court had granted permission to the defendant to file the amended Written statement cum counter claim.
16. From the perusal of the counter claim of the defendants (in the said civil suit filed in the Hon´ble High Court), which has been registered as civil suit in this court. It is clear that the counter claimants (plaintiffs herein) have claimed the relief of recovery of Rs. 10 lakhs alongwith interest @ 18% p.a. and decree of declaration, declaring that the possession of the plaintiff (in the said suit) of the first floor and second floor of the suit property as illegal and also sought relief of mandatory injunction, directing the plaintiff (in the said civil suit) to restore the possession of the first floor and second floor of the suit property to the defendant no.1 (i.e. plaintiff herein) and also sought direction for the plaintiff (in the said civil suit) to pay Rs.25000/ per month towards unauthorized used and occupational charges with effect from November, 2006 till the restoration of the possession to the defendants (i.e. the plaintiffs herein) and from the perusal of the Written statement filed by the defendant (herein) to the counter claim of the plaintiffs (herein) in the Hon´ble High Court on dated 10.04.07, it is clear that she had admitted the ownership of the plaintiffs (herein) in the said Written statement to the counter claim and the plaintiff namely Smt. Anita Pal (in the said civil suit) had sought permission to withdraw her said civil suit and the Hon´ble High Court of Delhi had allowed to Smt. Anita Pal to withdraw the Suit No.402/2009 Page 28 of 40 said suit vide order dated 16.12.08 and the perusal of the record, also makes it clear that the fact of filing of the Written statement to the counter claim on dated 10.04.07 by the defendant (herein) in the Hon ´ble High Court, was well within the knowledge of the defendant namely Smt. Anita Pal, but, despite of the knowledge thereof, she has filed the second written statement cum counter claim on dated 19.12.2009 and the defendant is claiming it as amended Written statement cum counter claim. But, from the perusal of the Written statement cum counter claim filed on dated 19.12.2009, it is clear that it is nowhere mentioned thereon that it is an "amended" Written statement cum counter claim. Even otherwise, the amended Written statement cannot be filed in the court without granting of such permission by the court. The ld. counsel for the defendant has tried to misinterpret the orders dated 05.02.09 & 07.07.09 passed by the predecessor of this court and order passed by their lordship of Delhi High Court on dated 16.12.08, as from the perusal of these orders passed by this court and by their lordship of Delhi High Court, it is clear that the defendant has not been granted any such permission to file the "amended" Written statement or Written statement for the second time. Since the defendant had already filed the written statement to the counter claim in the Hon´ble High Court on dated 10.04.07 so, the second Written statement cum counter claim filed by the defendant on dated 19.12.2009 cannot be looked into, as it is settled principle of law that the counter claim by the defendant cannot Suit No.402/2009 Page 29 of 40 be filed subsequent to the filing of the Written statement and in the case in hand, the Written statement to the counter claim by the defendant was already filed by her in the Hon´ble High Court on dated 10.04.07 and there is no provision of law, which could allow to the defendant to file written statement second time. Even otherwise, the perusal of the Written statement to the counter claim filed on dated 10.04.07 in the Hon´ble High Court by the defendant namely Smt. Anita Pal and the Written statement cum counter claim filed in this court on dated 19.12.2009 show that the defendant has denied the ownership of plaintiff no.1 in her second Written statement on 19.12.2009, as the defendant in her Written statement filed in the Hon ´ble High Court on dated 10.04.07, has admitted that the plaintiff no.1 (herein) is the lawful owner of the suit property. Whereas, in the Written statement cum counter claim filed in this court on dated 19.12.2009 she has taken a contradictory plea that the plaintiff no.1 is not the lawful owner of the suit property nor she remained in the lawful possession of the suit property at any point of time. It is worthwhile to mention here that in the Written statement cum counter claim filed on dated 19.12.2009, the defendant has taken another plea that her husband Sh. Ravinder Kumar has become true and lawful owner of the entire suit property by virtue of legal registered sale deed dated 07.05.07 duly executed by the erstwhile owner namely Shri R. Chand Sharma. It is further pertinent to mention here that the plaintiff' has placed on record the certified copy of the registered sale Suit No.402/2009 Page 30 of 40 deed, which makes it clear that how the defendant (herein) namely Smt. Anita Pal made some lady to stand in place of Kesar Devi Baid and got the sale deed of the suit property executed in her favour on 09.07.2007 and the ld. counsel for the plaintiffs has apprised the court that a criminal case for such impersonation and forgery has been registered against the defendant (herein) vide an FIR and this fact of execution of such sale deed by some lady in favour of the defendant (herein) has come to the knowledge of the plaintiffs (herein) during the pendency of the present case.
17. It is worthwhile to mention here that on the one side the defendant claims that her husband has purchased the suit property from Shri R. Chand Sharma vide sale deed dated 7.5.2007 and she claims that Shri R. Chand Sharma was the original owner of the suit property, then what was the need of another sale deed dated 09.07.2007, which is alleged to have been executed by the plaintiff no.1 in favour of the defendant (herein) namely Smt. Anita Pal and since the learned Counsel for the plaintiffs (herein) has submitted that a criminal case has also been registered for forging this document, because from the perusal of the photograph affixed on the said sale deed, it is clear that other lady impersonated to be Kesar Devi Baid and executed the sale deed of the suit property in favour of the defendant namely Smt. Anita Pal and thus the sale deed of the suit property dated 07.05.07 alleged to have been executed by R. Chand Sharma in favour of the husband of the defendant and sale deed of the suit property dated 09.07.07 Suit No.402/2009 Page 31 of 40 alleged to have been executed by Smt. Kesar Devi Baid in favour of the defendant are two contradictory documents which shows the malafide conduct of the defendant (herein).
18. It is worthwhile to mention here that after almost conclusion of the arguments on first application u/o 6 rule 17 CPC, the defendant has filed another application u/o 6 rule 17 CPC on dated 15.02.2013 and sought to delete and substitute the paras of her Written statement, which clearly manifests that the defendant is still desirous to file third Written statement and such conduct of the defendant itself make it clear that the intention of the defendant is nothing but to cause unnecessary delay in the adjudication of the present matter, as the defendant has taken the contradictory pleas in her Written statement to the counter claim filed in the Hon´ble High Court on dated 10.04.07 and filed in this court on dated 19.12.2009, that too, without leave of the court and the ld. counsel for the defendant has tried to mislead this court that this court vide its orders dated 05.02.2009 and another order dated 07.07.2009, was pleased to allow the defendant to file the amended Written statement and after filing of the application under consideration u/s 151 CPC by the plaintiffs for rejection of the Written statement cum counter claim filed on dated 04.05.2010, the defendant has filed two applications u/o 6 rule 17 CPC subsequent to the same and the stands taken by the defendant are contradictory in both the Written statements and as the ld. counsel for the plaintiffs has submitted that great prejudice will be caused to the Suit No.402/2009 Page 32 of 40 plaintiffs, in case the amendments are allowed.
19. Since the defendant (herein) has admitted in her civil suit filed in the Hon´ble High Court that she had taken the possession from the plaintiffs (herein), so, she is estopped by her such acts and conducts to deny this fact and now by way of amendments, she is desirous to take contradictory plea that her husband has taken the possession of the suit property from Sh. R. Chand Sharma in consequence of sale deed executed by Sh. R. Chand Sharma in favour of husband of defendant namely Sh. Ravinder Kumar and from the above said discussed conduct of the defendant, it is clear that she has also got executed a sale deed in her favour by way of putting some lady to stand in place of the plaintiff no.1 who has impersonated to be herself as Kesar Devi Baid and executed the sale deed of the suit property dated 9.7.2007 in favour of defendant (herein). This is an admitted fact by the defendant that she had entered into an agreement to sell with plaintiffs and she had filed a suit for specific performance against the plaintiffs (herein) in the Hon´ble High Court of Delhi, which was subsequently withdrawn and she has filed the application u/o 6 rule 17 CPC after filing of the application by the plaintiffs u/s 151 of CPC and also submitted that since the defendant has filed the second Written statement, which is not permissible under the law and the applications have been filed by the defendant u/o 6 rule 17 CPC subsequent to the filing of the second Written statement in this court and also after filing of the application by the plaintiff u/s 151 of CPC, vide which, Suit No.402/2009 Page 33 of 40 the plaintiff has sought to reject / return the Written statement cum counter claim.
20. As the defendant had taken the possession from the plaintiffs and she had admitted in her Written statement to the counter claim filed on dated 10.04.2007 in the Hon´ble High Court that the plaintiff no.1 is the owner and now she is desirous to deny the ownership of the plaintiffs (herein), so, the defendant is estopped by her acts and conducts to deny the ownership of plaintiff no.1.
21. The perusal of the sale deed dated 09.07.2007 makes it clear that some lady had impersonated herself to be Kesar Devi Baid and during the arguments on the application under consideration, defendant and Kesar Devi Baid had come in the court and the defendant had stated in the court that she never met with Kesar Devi Baid, which clears that it is the result of impersonation. This court never granted permission to file the second Written statement or counter claim in this court and the ld. counsel for the defendant has misinterpreted the orders dated 05.02.2009 and 07.07.2009 of this court and order passed by Hon´ble High Court on dated 16.12.08 and as the defendant had earlier admitted that the plaintiff no.1 is the owner of the suit property and in the second Written statement filed in this court on dated 19.12.09 the defendant has denied the ownership of the plaintiff no.1 i.e. Kesar Devi Baid and the conduct of the defendant is also relevant that she had got a sale deed dated 09.07.07 executed in her favour of the suit property, which is the result of the impersonation and the sale Suit No.402/2009 Page 34 of 40 deed is a registered document and from the conduct of the defendant, it is clear that in her second Written statement filed in the court on dated 19.12.09, she has denied the ownership of the plaintiff no.1 and she had got a sale deed executed in her favour on dated 09.07.2007 by way of making some lady to stand in place of Kesar Devi Baid, which clearly manifests that the defendant has not come to the court with the clean hands and the stands taken by the defendant are contradictory. It is pertinent to mention here that the second application filed by the defendant for seeking amendment is nothing but is a gross misuse of process of law, as the defendant had filed the Written statement to the counter claim of the plaintiffs in the Hon´ble High Court on dated 10.04.07 and again on dated 19.12.09 the defendant has filed the Written statement cum counter claim and after almost conclusion of the arguments on her first application u/o 6 rule 17 CPC, she has filed another application u/o 6 rule 17 CPC and sought to delete and substitute the paras of her Written statement, which clearly shows that the defendant is still desirous to file third Written statement and as the defendant has taken the possession of the suit property from the plaintiffs in consequence to an agreement to sell entered into between the plaintiffs and the defendant and this is an admitted fact by the defendant that she had entered into an agreement to sell and she had filed a suit for specific performance against the plaintiffs (herein) in the Hon´ble High Court of Delhi which was subsequently withdrawn and the defendant has filed the application u/o 6 rule 17 CPC after Suit No.402/2009 Page 35 of 40 filing of the application by the plaintiffs u/s 151 of CPC and since the defendant has filed the second Written statement, which is not permissible under the law and applications filed u/o 6 rule 17 CPC is filed subsequent to the filing of the Written statement and a great prejudice will be caused to the plaintiffs, as the defendant had taken the possession from the plaintiffs and she had admitted in her Written statement to the counter claim filed on dated 10.04.2007 in the Hon ´ble High Court that the plaintiff no.1 is the owner and now she is desirous to deny the ownership of the plaintiffs (herein), so, the defendant is estopped by her acts and conducts to deny the ownership of plaintiff no.1.
22. Cumulative effect of the above discussion is that this court has come to conclusion that the defendant has taken the contradictory stands in the Written statements and if, the amendments, as sought, are allowed, a great prejudice will be caused to the plaintiffs, as the possession was taken by the defendant from the plaintiffs and now the defendant is desirous to take contradictory stand and even otherwise the conduct of the defendant on record, makes it clear that she is also indulged in the offence of impersonation and forgery, as she made some lady to stand in place of Smt. Kesar Devi Baid and got a sale deed dated 09.07.2007 executed in her favour.
23. Their Lordship of Hon'ble Supreme Court of India is pleased to place the guidelines in case Ravajeetu Builders & Developers v/s Narayanaswamy & Sons & others JT 2009(13) SC 366. Their Suit No.402/2009 Page 36 of 40 Lordship of hon'ble Supreme Court is pleased to lay down following guidelines for allowing or rejecting application for amendment : (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 malafide?
(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money.
(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?
(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.
24. Their lordship of Hon´ble Supreme Court in case Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, AIR 1957 Supreme Court 363(1) is pleased to hold that "All judgments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties ....but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendment should be refused only where the other party cannot be placed in the same position as Suit No.402/2009 Page 37 of 40 if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?"
25. Their lordship of Hon´ble Supreme Court in case Heeralal v. Kalyan Mal and others, Civil Appeal No.7852 of 1997, decided on November 19, 1997, is pleased to hold that "Civil Procedure Code, 1908Or. 6 R. 17, Or. 15 R. 1 and S. 115Amendment of pleadings Inconsistent pleasWithdrawal of admission made in the written statement by defendant which would displace plaintiff's case and cause him irretrievable prejudice and permissibleAdmission of such a nature that plaintiff could have asked the court to pass a preliminary decree under Or. 15 R. 1Issues framed by trial court on the basis of the admissionSubsequently, withdrawal of the admission by amendment of written statement sought by defendant Suit No.402/2009 Page 38 of 40 on unsustainable groundsHeld, amendment cannot be allowed High Court in exercise of revisional power Under S. 115 was not justified to interfering with trial court's order dismissing application for amendment of pleadings."
26. Taking into consideration the guidelines laid down by lordship of Hon´ble Supreme Court in cases Ravajeetu Builders & Developers v/s Narayanaswamy & Sons & others JT 2009(13) SC 366, Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, AIR 1957 Supreme Court 363(1) and Heeralal v. Kalyan Mal and others, Civil Appeal No.7852 of 1997, I am inclined to hold that since the defendant has set up a new and inconsistent case by way of seeking amendment, as she has also filed a counter claim subsequent to the filing of her written statement, as the Written statement was filed by the defendant in the Hon´ble High Court on dated 10.04.07 and thereafter the defendant has again filed the Written statement and counter claim on dated 19.12.09 in this court alongwith second written statement, as per law the counter claim could be filed by the defendant herein alongwith the Written statement filed on dated 10.04.07 in the Hon´ble High Court. But, the defendant did not file the same with her first written statement. So, the counter claim filed by the defendant herein alongwith the second written statement is not considerable.
27. The defendant is guilty of concealment of material facts. On the Suit No.402/2009 Page 39 of 40 one side she has submitted that under the mistaken belief she entered into agreement to sell with plaintiff no.1. On the other side, she has got a sale deed dated 09.07.07 executed of the suit property in her favour after making some lady to stand in place of Kesar Devi Baid. At the same time she has taken the plea that her husband has purchased the suit property from Sh. R. Chand Sharma. Thus, the defendant is not only guilty of concealment of material facts. But, in the given circumstances, she is also estopped to deny the ownership of suit property of plaintiff no.1.
28. Cumulative effect of the above discussion is that a great prejudice will be caused to the plaintiffs, if the applications u/o 6 rule 17 CPC filed by the defendant are allowed, as in the given circumstances the defendant cannot be allowed to withdraw her admission in her written statement filed before the Hon´ble High Court on dated 04.07.07. Accordingly, the second Written statement and counter claim filed by the defendant on dated 19.12.09, stands rejected. The application filed by the plaintiffs U/s 151 CPC, stands allowed and both the applications u/o 6 rule 17 CPC filed by defendant, are hereby dismissed.
Announced in the open Court on 27.04.2013 ( Pawan Kumar Matto ) Additional District Judge03 (East), Karkardooma Court, Delhi / 27.04.2013 Suit No.402/2009 Page 40 of 40