Delhi High Court
Kulvinder Singh vs Harvinder Pal Singh & Anr. on 9 July, 2012
Author: Hima Kohli
Bench: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI + I.A. No. 10747/2011 (by the defendant No.1 u/O 6 R 17 CPC) in CS(OS) 1619/2009 Date of Decision: 9th July, 2012 IN THE MATTER OF KULVINDER SINGH ..... Plaintiff Through: Mr. Sanjeev Bhatnagar, Advocate versus HARVINDER PAL SINGH & ANR. ..... Defendants Through: Mr. Vishal Singh, Advocate for the defendant No.1. CORAM HON'BLE MS.JUSTICE HIMA KOHLI HIMA KOHLI, J. (Oral)
1. The present application has been filed by the defendant No.1 in a suit instituted by the plaintiff for passing a decree of partition in respect of the ground floor and half of the second floor of premises bearing No.B7, 105, Safdarjung Enclave Extn., New Delhi, and for a decree of permanent injunction.
2. The aforesaid suit was registered on 01.09.2009 and summonses were issued returnable on 27.11.2009. Appearance was entered on behalf of the defendants and written statement came to be filed on 18.11.2009, whereafter replication to the written statement of the defendant No.1 was filed by the plaintiff in February, 2010. After the pleadings were completed, the present application came to be filed by the CS(OS) 1619/2009 Page 1 of 7 defendant No.1 on 11.07.2011. Alongwith the present application, the defendant No.1 had filed another application under Order VIII Rule 1(A) read with Section 151 CPC, registered as I.A. No.10888/2011, whereunder he had sought permission to place some additional documents on record.
3. In the present application, the defendant No.1 has sought amendment to the written statement by incorporating the brief facts prior to the preliminary objections taken in the written statement. The said brief facts run into 20 paras and have been set out in para 9.1 of the application. Apart from the aforesaid amendment, the defendant No.1 also seeks to amend the averments made on merits in paras 2 and 5 of the written statement and the verification clause as set out in paras 9.2, 9.3 and 9.4 (wrongly typed as para 9.3) of the application. It is averred in the application that the amendments sought to be incorporated are only to buttress the defence already taken by the defendant No.1 in the written statement, which is to the effect that the subject property was acquired by him through a gift deed executed by his father, Shri Gurdial Singh in his favour and duly registered with the Sub-Registrar, Delhi. It is stated by the counsel for the defendant No.1 that the amendments sought in the written statement are only to explain the manner in which late Shri Gurdial Singh came to acquire the title in the subject premises and that the defendant No.1 does not propose to rescind from or alter the stand taken by him in the written statement.
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4. Secondly, it is submitted by the counsel for the defendant No.1 that the present application was accompanied by another application filed under Order VIII Rule 1(A) read with Section 151 CPC, registered as I.A. No.10888/2011, whereunder the defendant No.1 had sought to place on record certain additional documents on the ground that the same were in his custody in Canada and he had brought them to Delhi on 05.07.2011 and then had sought leave to place them on record. Learned counsel states that the relief prayed for in the aforesaid application had not been opposed by the plaintiff as is apparent from a perusal of the order dated 14.07.2011 passed by the Joint Registrar and upon payment of costs of `3,000/-, the additional documents filed by the defendant No.1 were taken on record, whereafter admission and denial of documents had also been carried out. He contends that all the documents that have been brought on record only substantiate the submissions that have been made in the proposed amendments as mentioned in the present application for purposes of completing the chain to establish the manner in which the title of the subject premises came in the hands of late Shri Gurdial Singh.
5. In support of his submission that the Court ought to be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or the prayer for amendment was not a bona fide one and further that the approach of the Court in allowing the amendment of the written statement ought to be a liberal approach as compared to the approach towards the plaintiff to seek CS(OS) 1619/2009 Page 3 of 7 amendment in the plaint, learned counsel for the defendant No.1 relies upon the following judgments:-
(i) Usha Balashaheb Swami & Ors. vs. Kiran Appaso Swami & Ors. (2007) 5 SCC 602
(ii) Surender Kumar Sharma vs. Makhan Singh (2009) 10 SCC 626
6. Counsel for the defendant No.1 further states that although in the present case, the defendant No.1 has not taken a plea which is inconsistent with the earlier plea taken by him in the written statement, it is settled law that while amending the written statement, raising of mutually inconsistent pleas by the defendant is permissible and such amendments can be permitted at any stage. To urge this ground, reliance is placed on the judgment in the case of Arundhati Mishra vs. Sri Ram Charitra Pandey reported as (1994) 2 SCC 29.
7. Per contra, the present application is opposed by the counsel for the plaintiff, who submits that by seeking to amend the written statement as filed originally, the defendant No.1 is attempting to alter and change his stand as taken in the written statement. He submits that the present amendment application came to be filed by the defendant No.1 only after the plaintiff had filed an application under Section 340 Cr.PC, registered as I.A. No.3053/2010, wherein the plaintiff had categorically stated that a collaboration agreement was entered into on behalf of the father of the parties, i.e., late Shri Gurdial Singh on one CS(OS) 1619/2009 Page 4 of 7 hand and Shri Hardial Singh, defendant No.2 on the other hand and on the basis thereof, the parties had agreed to divide the subject premises in a particular manner and that it was agreed that the premises was ancestral but formal mutation thereof had been carried out in the name of Shri Gurdial Singh.
8. This Court has heard the counsels for the parties and considered their respective stands.
9. It is a settled law that while considering an application filed by the defendant seeking amendment of the written statement, the principles to be applied by the Court should be much more liberal as compared to the principles relating to amendment of a plaint. In other words, amendment to the written statement stands on a different footing from the amendment to the plaint. Though amendment to pleadings cannot be permitted so as to materially alter the substantial cause of action in a plaint, there is no such principle that can be applied to amendment in the written statement. Therefore, it is permissible for the defendant to take inconsistent pleas, mutually contrary pleas or to substitute the original plea taken in the written statement.
10. It is also relevant to note that the present application came to be filed by the defendant No.1 when admission and denial of documents had yet to take place. Furthermore, the defendant No.1 had filed another application alongwith the present application, whereunder a number of documents were sought to be placed on record. As the aforesaid request CS(OS) 1619/2009 Page 5 of 7 was not opposed by the plaintiff, the said application was allowed by the Joint Registrar vide order dated 14.07.2011. Thereafter, admission and denial of the documents that were filed by the defendant No.1 was also conducted by the parties, while the present application remained pending.
11. A perusal of the proposed amendments sought to be incorporated by the defendant No.1 in the original written statement shows that it is not a case of withdrawal of any admissions made by him in the original written statement or of altering the stand taken by him, which is to the effect that the title of the subject premises had passed in his hands on the basis of a registered gift deed executed by late Shri Gurdial Singh in his favour. The defendant only seeks to bring on record a different set of facts that culminated in the title of the premises coming in the hands of late Shri Gurdial Singh.
12. Lastly, it is relevant to note that if the amendments sought to be incorporated by the defendant No.1 are not permitted, then it is not likely that the real controversy between the parties would be ultimately resolved, which is an additional reason for permitting the amendments sought to be incorporated by the defendant No.1 in his written statement. Moreover, the application cannot be treated as a belated one as it was filed immediately after the pleadings were completed.
13. In view of the aforesaid facts and circumstances and having regard to the fact that no prejudice shall be caused to the plaintiff if the defendant is permitted to amend the written statement, it is deemed CS(OS) 1619/2009 Page 6 of 7 appropriate to allow the present application so as to do full and complete justice between the parties. However, the application is allowed subject to payment of costs of `5,000/- to the plaintiff. The amended written statement shall be filed within two weeks alongwith proof of payment of costs with advance copy to the counsel for the plaintiff, who may file the replication within two weeks thereafter.
14. The application is disposed of.
(HIMA KOHLI)
JULY 09, 2012 JUDGE
rkb/sk
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