Delhi District Court
Suraj Prakash Sharma vs Sheetal Prasad Dewan ... on 10 October, 2012
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IN THE COURT OF DIG VINAY SINGH, ADJ (CENTRAL) 04,
TIS HAZARI COURTS, DELHI
CS NO.369/08
Suraj Prakash Sharma ..... Applicant/plaintiff.
Vs.
Sheetal Prasad Dewan .....nonapplicant/Defendant
ORDER
1.An application under Order 6 Rule 17 CPC, filed by the plaintiff, seeking amendment of plaint, is subject matter of this Order.
2.Briefly stated, the present suit for declaration is filed by the plaintiff on the averments that he was a tenant in first floor of the property No. B4/21, Paschim Vihar, New Delhi under Sh. Sheetal Prasad Dewan (now deceased) defendant No.1. The defendant No.3 Smt. Shakuntla Rani Dewan claimed herself to be legally wedded wife and also claimed that CS. No.369/08 Suraj Prakash Sharma Vs. Sheetal Prasad dated 10.10.2012 Page No.1 of 11 h.l.
2 she was authorized to claim rent when the plaintiff was a tenant. Upon nonpayment of rent an eviction petition was filed against the plaintiff and three rounds of litigations were lost by the plaintiff. We need not go into those details suffice it to mention that in the present case, the plaintiff claims that the deceased defendant No.1 Sh. Sheetal Prasad Dewan had executed a sale deed in his favour and therefore, he seeks a decree of declaration that he is owner of the first floor portion of property. The present suit was filed when the plaintiff was not yet evicted but subsequently under execution the plaintiff has been evicted from the property. The plaintiff also seeks a decree of declaration that instruments and transactions dated 26.02.1993, 29.07.1997 and 04.09.1997 under which the defendants No.3 a to 3 e, who are LRs of deceased defendant No.3, claims ownership, be declared as null and void. The present suit was filed in December 1997.
3.Vide the present application the plaintiff seeks to amend paragraph No. 3.3 of the plaint to the effect that the suit which finds mention in the said Para of the original plaint has been dismissedaswithdrawn on or about CS. No.369/08 Suraj Prakash Sharma Vs. Sheetal Prasad dated 10.10.2012 Page No.2 of 11 h.l.
3 26.08.2002 that is during the pendency of this suit. Similarly the plaintiff wants to amend the paragraph No.3.4 for including the fact that another suit has already been dismissedindefault on 17.12.1998 from the Court of Ld. Civil Judge. This also is a subsequent fact, claimed by the plaintiff.
4.The plaintiff also wants to amend Para 8 of the original plaint by including certain subsequent facts of decision in another suit by ld. Civil Judge dated 14.03.2002 whereby, as per the plaintiff, it was decided that Sh. Pradeep Dewan had no power of attorney from Sh. Sheetal Prasad Dewan nor the property was sold to Binal Goyal by Sh. Pradeep Dewan. The plaintiff on the basis of that judgment wants to incorporate the fact that those documents relied upon by the defendants were forged as per the judgment and estoppel will apply.
5.Similarly the plaintiff wants to amend the Para No.8 to the effect that the sale of property in favour of the plaintiff by Sh. Sheetal Prasad Dewan was out of his own free will and by validly executed documents etc. The plaintiff also wants to amend the fact that during pendency on 31.10.2001 CS. No.369/08 Suraj Prakash Sharma Vs. Sheetal Prasad dated 10.10.2012 Page No.3 of 11 h.l.
4 possession of the part of the suit property was taken in execution, while the rest of the portion still continues to be in possession of the plaintiff. Plaintiff also wants to incorporate the fact that the defendants No. 3 a to 3 e and the defendant No.4 did not inherit any right in the property which was already sold to the plaintiff after death of Smt. Shakuntala Rani during pendency of the suit on 31.05.2002. It is also sought to be amended that after death of defendant No.1 Sheetal Prasad Dewan during pendency of the suit, the plaintiff became absolute owner by virtue of sale by Sheetal Prasad Dewan dated 10.09.1997. The plaintiff also wants to incorporate the fact that another suit for declaration was filed which came to be dismissed and one RFA was preferred by the plaintiff. It appears that the said RFA, was pending at the time when the present application was filed, but later on it came to be disposed of on 09.05.2012.
6.The plaintiff also wants to amend prayer Para of his suit to the effect that the plaintiff was occupying the first floor of the property lawfully as owner and in case the locks have been put up during the pendency of the suit, the same may be removed.
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7.The application is opposed by the defendant, primarily on the ground that the suit itself filed by the plaintiff is malafide and is not maintainable and therefore, application for amendment cannot be allowed. Defendant has argued that before my ld. Predecessor the matter was argued as to maintainability of the suit and the plaintiff said that the plaintiff did not want to amend the plaint, but now the amendment application is filed. It is also claimed that the application is barred by time as the prayer has become time barred and also principles of resjudicata applies. The defendant claims that the question of ownership has been already taken by the plaintiff before the courts/tribunal in eviction proceedings and repeatedly his plea of ownership has been rejected. It is also claimed that in the original plaint, the plaintiff only claimed an agreement to sell dated 10.09.1997 in his favour and now he wants to set up the fact of Will, GPA etc. also in his favour, after more than 12 years of filing of suit. It is also claimed that in the original plaint the plaintiff did not claim roof rights, which is now sought to be incorporated. Defendants claim that the documents sought to be relied upon by the plaintiff are all forged and CS. No.369/08 Suraj Prakash Sharma Vs. Sheetal Prasad dated 10.10.2012 Page No.5 of 11 h.l.
6 fabricated documents and no such documents were executed and the property was never sold to the plaintiff. It is also claimed that defendant No.1 Sheetal Prasad Dewan during his life time denied having received any payment from the plaintiff. It is also argued that the suit filed by Smt. Shakuntala Rani Dewan became infructuous and therefore, it was withdrawn and similarly the suit allegedly filed by Sheetal Prasad Dewal was filed under the forged signatures which were ultimately dismissedin default. It is also claimed that some of the amendments sought by the plaintiff are already contained in the original plaint and his ownership rights has already been rejected in the earlier litigations.
8.Admittedly, in the present suit trial has not yet begin. The suit is at the initial stage. Under Order 6 Rule 17 CPC the Court may allow amendment of pleadings by either parties as may be just and all those amendments which may be necessary for the purpose of determining the real controversy can be allowed. Pretrial amendments are allowed liberally.
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9.In the present case the plaintiff wants to aid certain subsequent events. Thought the application has been filed belatedly but delay alone cannot be a ground to dismiss the application. It is also equally settled that while considering the application for amendment merits/bonafides of claim cannot be seen as such issues can be dealt with during trial.
10.It is settled law that while considering amendments the Court cannot go into merits of the matter and decide whether or not the claim made therein is bonafide or not. It would be a question of trial (Reliance placed upon a judgment of Lekha Ram Sharma Vs. Balar Marketing Pvt. Ltd., 2003 VII AD (S.C.) 1.).
11.The plaintiff has relied upon the judgment in the case of Sampath Kumar Vs. Ayyakannu & Anr., 2002 VIII AD (S.C.) 7, wherein it was held that if basic structure of the suit is not altered by the proposed amendment, it can be allowed even though it is sought much belatedly. In that case amendment was sought 11 years after the fact sought to be amended occurred. In that case it was also held that merits of the CS. No.369/08 Suraj Prakash Sharma Vs. Sheetal Prasad dated 10.10.2012 Page No.7 of 11 h.l.
8 averments sought to be incorporated by way of amendment cannot be judged at the stage of amendment application.
12.Similarly in the case of Dhirender Kumr Pandey and others Vs. Smt. Rashmani Dei, AIR 1986 Orissa 133, it was held that in the amendment application the issues cannot be prejudged. To the same effect is judgment in the case of T.P. Palaniswami and another Vs. Deivanaiammal and others, AIR 1984 Madras 19.
13.In the case of Sh. SaifulIslam Company L.P. vs. Roshan Lal Arora and another, 2003 AIHC 2966, it was held by Hon'ble Delhi High Court that the Court should permit subsequent development and altered circumstance and mere delay cannot be a ground of refusal of amendment.
14.On the other hand the defendant has relied upon the case of Mrs. Janet Anne Woolqar James & Ors. Vs. Jaypee Hotel Ltd., 83 (2000) DLT 277 (DB) is distinguishable on the facts of the case, as in the present CS. No.369/08 Suraj Prakash Sharma Vs. Sheetal Prasad dated 10.10.2012 Page No.8 of 11 h.l.
9 case has been declaration sought in the original suit itself and now subsequent events and facts are sought to be incorporated. Reliance upon Suraj Lamp and Industries Vs. State of Haryana & Anr., 183 (2011) DLT 1 (SC) is also misplaced as it is a matter of trial as to what would be the effect of sale documents claimed by the plaintiff. Reliance upon T. Arivandadam Vs. T.V. Satyapal & Anr., AIR 1977 SC 2421 and Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Registered) Vs. Ramesh Chander And Others, (2010) 14 SCC 596, are also misplaced as question of merits of case cannot be gone into in amendment application. It would be a matter of trial. Reliance placed upon the cases of Ravinder Kaur Vs. Ashok Kumar & Anr., (2003) 8 SCC 289, Shipping Corporation of India Vs. Machado Brothers & Ors., AIR 2004 SC 2093, Love Jain Vs. Manak Chand Jain, 173(2010) DLT 534, Ram Chander Aggarwal & B.P. Aggarwal Vs. UOI & Ors., 187 (2012) DLT 370 (DB); Khatri Hotels Pvt. Ltd. Vs. Union of India & Anr., 163 (2009) DLT 226; Kiran Kohli Vs. DDA, 148 (2008) DLT 590 and; Muni Lal Vs. The Oriental Fire and General Insurance CS. No.369/08 Suraj Prakash Sharma Vs. Sheetal Prasad dated 10.10.2012 Page No.9 of 11 h.l.
10 Company Ltd., AIR 1996 SC 642 are similarly misplaced as whether the plaintiff succeeds in original suit or not is a matter of trial and it cannot be considered in this application.
15.In South Konkan Distilleries v. Prabhakar Gajanan Naik AIR 2009 SC 1177 it was observed;
"It is well settled that the Court must be extremely liberal in granting the prayer for amendment, if the Court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment shall suffer irreparable loss and injury. It is also equally well settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the Court to allow an amendment if it is of the view that allowing of an amendment shall really sub serve ultimate cause of justice and avoid further litigation."'
16.The amendments sought by the plaintiff seems necessary for the just decision of the suit. Trial has not yet commenced in this case. The defendant would have adequate opportunity to reply to the amended CS. No.369/08 Suraj Prakash Sharma Vs. Sheetal Prasad dated 10.10.2012 Page No.10 of 11 h.l.
11 plaint. Whether the suit itself would be maintainable or not is a different question. Therefore, the application is allowed. Let the amended plaint be filed.
Announced In the Open Court On 10.10.2012.
(DIG VINAY SINGH) ADJ (Central) 04/Delhi 10.10.2012.
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