Delhi High Court
Anila Dasgupta (Deceased) Thr Lrs vs Maya Bhattacharjee (Deceased) Through ... on 29 May, 2018
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 29th May, 2018
+ CM(M) 11/2017 & CM No.239/2017 (for stay)
ANILA DASGUPTA (DECEASED) THR LRS .... Petitioner
Through: Mr. S.K. Bhandari, Ms. Vandana and
Mr. Prem Prakash, Advs.
Versus
MAYA BHATTACHARJEE (DECEASED)
THROUGH LRS ..... Respondent
Through: Mr. P.K. Maitra, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This petition under Article 227 of the Constitution of India impugns
the order [dated 19th November, 2016 in CS SCJ No.7841/2016 of the Court
of Civil Judge-04 (West), Tis Hazari Courts, Delhi] allowing the application
of the respondent/plaintiff under Order VI Rule 17 of the Code of Civil
Procedure, 1908 (CPC) for amendment of the plaint.
2. The petition came up first before this Court on 4 th January, 2017 when
notice thereof was ordered to be issued and on the application of the
petitioner/defendant, the operation of the order impugned was stayed and
owing whereto, the proceedings in the suit from which this petition arises
have come to a standstill.
3. The counsel for the respondent/plaintiff has been appearing and the
counsels were heard on 15th November, 2017.
4. The respondent/plaintiff, since deceased and represented through legal
heirs, in or about the year 1987 instituted the suit from which this petition
arises against the petitioner/defendant, also since deceased and represented
CM(M) 11/2017 Page 1 of 17
through legal heirs, for specific performance of an agreement of sale of
immoveable property bearing No.J-1840, Chittranjan Park, Kalkaji, New
Delhi and for injunction restraining the petitioner/defendant from alienating,
encumbering or parting with possession of the said property.
5. Vide order dated 2nd December, 1987, the following issues were
framed in the suit:
"1. Whether the defendant agreed to sell the property in suit
to the plaintiff as alleged?
2. Whether the plaintiff has always been and is still ready to
perform her part of the contract?
3. Whether the plaintiff is entitled to damages from the
defendant? If so, to what extent?
4. Relief."
The order dated 2nd December, 1987 also records that the
respondent/plaintiff was not pressing the relief of permanent injunction
claimed in the suit.
6. Vide order dated 7th December, 1987 in the suit, reasoning that it was
difficult at that stage to believe the existence of any agreement to sell as
alleged in the plaint and that it was also difficult to believe that, while there
was ample correspondence between the parties, the parties did not formalise
a document evidencing the agreement to sell, the application of the
respondent/plaintiff under Order XXXIX Rules 1&2 of the CPC for
restraining the petitioner/defendant from alienating, encumbering or parting
with possession of the property during the pendency of the suit was
dismissed.
7. The respondent/plaintiff, in or about March, 1993 applied under Order
CM(M) 11/2017 Page 2 of 17
VI Rule 17 of the CPC for amendment of the plaint and which application
remained pending till 19th November, 2016, when it was allowed vide the
impugned order.
8. Though it is unfortunate that the suit, of specific performance of an
agreement of sale of immoveable property, has remained pending for 20
years and recording of evidence of the respondent/plaintiff even has not
commenced as yet inspite of issues also having been framed 20 years back
but this is not the stage to ponder over the reasons for such undue delay.
Rather, pronouncement of this order also has been delayed.
9. The counsel for the petitioner/defendant has argued, that the
respondent/plaintiff was a tenant under the petitioner/defendant in the
property aforesaid and till date continues in possession of the property. It is
further stated that though the petitioner/defendant has instituted a petition
under Section 14(1)(e) of the Delhi Rent Control Act, 1958 for eviction of
the respondent/plaintiff from the premises as a tenant but the said petition for
eviction also has been pending for several years and the Additional Rent
Controller (ARC) is delaying hearing arguments and pronouncing order on
the application for leave to defend filed by the respondent/plaintiff owing to
the pendency of the suit for specific performance from which this petition
arises.
10. Though again this is not the forum to comment thereon but it is
inexplicable, as to why the ARC would not proceed with the petition for
eviction and dispose of the application for leave to defend stated to be
pending therein.
11. The counsel for the petitioner/defendant has argued that the
CM(M) 11/2017 Page 3 of 17
respondent/plaintiff in the plaint as originally filed, sued for specific
performance of an oral agreement to sell and has in this regard drawn
attention to the following paragraphs of the plaint as originally filed:
"2. That the Defendant agreed to sell the aforesaid plot
together with the built up property on 10.05.1985 for a
total consideration of Rs.2,05,240/- (Rupees Two Lacs
Five Thousand Two Hundred Forty Only), out of which
the Plaintiff paid a sum of Rs.50,000/- (Rupees Fifty
Thousand) by means of a cheque No.JP.0091840 dated
15.05.1985, the amount agreed to be paid pending
sanction/permission of Land and Development Office.
This Agreement was subject to sale permission being
granted by the Land and Development Officer, Ministry
of Works and Housing, New Delhi in obtaining which the
Plaintiff assured the Defendant her assistance.
3. That it was also agreed that the Plaintiff would pay the
Defendant the balance amount of Rs.1,55,240/- (Rupees
One Lac Fifty Five Thousand Two Hundred Forty) once
sale permission was obtained from Land and
Development Office in addition to Rs.50,000/- (Rupees
Fifty Thousand) payable before the sale permission is
obtained and requisite sale deed is executed and in the
following manner:
a. Rs.50,000/- (Rupees Fifty Thousand) in National
Saving Certificate of three years.
b. Rs.50,000/- (Rupees Fifty Thousand) by Demand
Draft account payee.
c. Rs.30,000/- (Rupees Thirty Thousand) in cash.
d. The balance of Rs.25,240/- (Rupees Twenty Five
Thousand Two Hundred Forty Only) in the form of
jewellaries.
The Defendant in addition stipulated the items of
jewellery and also gave the measurements to the bangles
and necklace to purchase in satisfaction of the entire
CM(M) 11/2017 Page 4 of 17
consideration. No formal deed in respect of this
Agreement was thought necessary in view of the
relationship between the parties and because of the fact
the Plaintiff along with her husband and family was the
tenant in the premises and in occupation and possession
of the same. The only qualification/condition being sale
permission being obtained from Land & Development
Office, New Delhi."
(emphasis added)
12. It is argued that it is owing to the express case of the
respondent/plaintiff in the plaint and at the stage of decision of the
application under Order XXXIX Rules 1&2 of the CPC and framing of
issues and owing to the denial by the petitioner/defendant of any such
Agreement, that the issues as aforesaid were framed and while dismissing
the application of the respondent/plaintiff under Order XXXIX Rules 1&2 of
the CPC, it was reasoned that it was unbelievable that the parties inspite of
being in correspondence with each other would not formalise a document
evidencing agreement to sell.
13. It is next contended, that the respondent/plaintiff, by way of
amendment which has been allowed, seeks to substitute the case in the plaint
as originally filed, of an oral agreement to sell, with a case of an agreement
to sell in writing.
14. Attention is invited to the application for amendment, where the
respondent/plaintiff has pleaded (i) that subsequent to fixing of the date of
trial, the respondent/plaintiff came to know as a matter of fact that the oral
agreement to sell was reduced to writing by the deed of Agreement to Sell
executed by the petitioner/defendant on 3rd October, 1985; (ii) that it then
CM(M) 11/2017 Page 5 of 17
came to the knowledge of the respondent/plaintiff, that the
petitioner/defendant had also executed a General Power of Attorney (GPA)
in favour of the husband of the respondent/plaintiff and in which document
also, the petitioner/defendant admitted execution of the Agreement to Sell in
favour of the respondent/plaintiff; (iii) that these documents had been
received by the respondent/plaintiff through a common friend.
15. The respondent/plaintiff thus wanted to amend the plaint to plead that
the oral agreement to sell had been reduced into writing and was for a total
sale consideration, instead of Rs.2,05,240/- as mentioned in the plaint as
originally filed, of Rs.2,05,240/- and Rs.5,240/-. Para 2 of the plaint as
reproduced above, was sought to be substituted to the following paragraph:
"That the defendant agreed to sell the aforesaid plot together
with the built-up property on 10.5.1985 which was reduced to
writing vide agreement dated 3.10.1985 for the total
consideration of Rs.2,05,240/- (Rupees Two lacs Five thousand
Two hundred Forty only) by means of cheque No. JP 0091840
dated 15.5.1985 and Rs.5,240/- (Rupees Five thousand Two
hundred only) in cash vide receipt dated 11.8.1985 the amount
agreed to be paid pending sanction/permission of L&DO. This
agreement was subject to the sale permission being granted by
the Land and Development Officer, Ministry of works and
housing, New Delhi in obtaining which the plaintiff assured the
defendant her assistance."
16. The petitioner/defendant opposed the aforesaid application for
amendment inter alia contending (a) that by way of amendment, a valuable
right which had accrued to the petitioner/defendant was sought to be
forfeited; (b) that by way of amendment, the respondent/plaintiff was
wanting to deprive the petitioner/defendant of admission already made by
the respondent/plaintiff; (c) that the respondent/plaintiff, by way of
CM(M) 11/2017 Page 6 of 17
amendment, was seeking to introduce absolutely new case inconsistent with
the earlier one; (d) that the amendment was barred by limitation; (e) that the
respondent/plaintiff had failed to state as to when the deed of the Agreement
to Sell and the GPA had come to her knowledge; (f) that the alleged
documents bear the signatures of the respondent/plaintiff and the
respondent/plaintiff should have been in know of them.
17. The learned Civil Judge, before whom the suit is pending, allowed the
amendment, reasoning (I) that the recording of evidence in the suit was yet
to begin; (II) that though the respondent/plaintiff was changing her plea in
the plaint from that of an oral agreement to sell to that of a written agreement
to sell but the relief claimed in the suit remained the same; (III) that though
the respondent/plaintiff by way of amendment was taking a stand contrary to
the stand in the plaint as originally filed, however since the relief and the
cause of action remained the same, hence at that stage, no prejudice could be
said to be caused to the petitioner/defendant.
18. The counsel for the respondent/plaintiff has drawn attention to an
application under Order XIII Rule 2 of the CPC dated 5th September, 1994
filed by the petitioner/defendant for filing additional documents in the suit.
19. It appears that the respondent/plaintiff along with the application
aforesaid for amendment of the plaint, also filed an application for filing the
deed of Agreement to Sell and GPA, on the basis whereof, the amendment
aforesaid was claimed.
20. The petitioner/defendant in the application aforesaid under Order XIII
Rule 2 of the CPC inter alia pleaded that the documents sought to be filed by
the respondent/plaintiff along with her application for filing additional
CM(M) 11/2017 Page 7 of 17
documents were "procured back-dated and not genuine, making the
defendant who is an old and ailing widow to sign the same when she was in
semi-conscious state under threat and coercion. The defendant has brought
out these facts in the letters written by her from time to time to her attorney
who is handling the present case on her behalf." The petitioner/defendant
vide her application dated 5th September, 1994 aforesaid, under Order XIII
Rule 2 of the CPC, wanted to produce the said letters written by the
petitioner/defendant to her attorney.
21. The counsel for the respondent/plaintiff has argued that the
petitioner/defendant by her pleas aforesaid has admitted the signatures on the
deed of the Agreement to Sell and GPA to be hers, with her plea only being
that the said signatures had been obtained when the petitioner/defendant was
in a semi-conscious state and under threat and coercion. He has thus argued
that once the petitioner/defendant had admitted the signatures on the deed of
Agreement to Sell and GPA and on the basis whereof, the
respondent/plaintiff claimed amendment of the plaint, the amendment has
been rightly allowed. Attention has also been invited to the order dated 14th
December, 2016 in the suit allowing the application of the
respondent/plaintiff for filing the deed of Agreement to Sell and GPA on
record.
22. I may however notice that the order dated 14 th December, 2016 allows
the application aforesaid of the respondent/plaintiff to file additional
documents only for the reason of it being consequential to the application for
amendment which had been allowed. Thus, if the order allowing the
application for amendment were to be set aside in this proceeding, the order
CM(M) 11/2017 Page 8 of 17
dated 14th December, 2016 would also be of no avail and in any case the
documents filed being beyond pleadings, cannot be proved.
23. The counsel for the petitioner/defendant has cited (a) Heeralal Vs.
Kalyan Mal (1998) 1 SCC 278, (b) R. Gupta Alias Raj Gupta Vs. Nirmal
Nanda 35 (1988) DLT 206, (c) S. Malla Reddy Vs. Future Builders
Cooperative Housing Society (2013) 9 SCC 349.
24. The counsel for the respondent/plaintiff has cited (a) Andhra Bank
Vs. ABN Amro Bank N.V. (2007) 6 SCC 167, (b) Rajesh Kumar Aggarwal
Vs. K.K. Modi (2006) 5 SCC 385, (c) Rajesh Sharma Vs. Krishan Pal 2011
(126) DRJ 34, (d) Rajkumar Gurawara Vs. S.K. Sarwagi and Company
Private Limited (2008) 14 SCC 364, (e) A.K. Gupta and Sons Vs. Damodar
Valley Corporation (1966) 1 S.C.R. 796, (f) Prithi Pal Singh Vs. Amrik
Singh (2013) 9 SCC 576, (g) Prestige Lights Ltd. Vs. State Bank of India
(2007) 8 SCC 449.
25. I have considered the rival contentions.
26. The respondent / plaintiff, at the time of institution in February, 1987
of the suit from which this petition arises, took a categorical and unequivocal
stand that "No formal deed in respect of this Agreement was thought
necessary in view of the relationship between the parties and because of the
fact that the plaintiff along with her husband and family was the tenant in the
premises and in occupation and possession of the same". The respondent /
plaintiff however by way of amendment sought in March, 1993 i.e. after
about six years of the institution of the suit, wanted to plead that there was an
Agreement to Sell in writing. The same was indeed diametrically opposite
and contrary to what was earlier pleaded. This is not a case of the respondent
CM(M) 11/2017 Page 9 of 17
/ plaintiff suing for specific performance of an agreement to sell without
filing the Agreement to Sell along with the suit and subsequently producing
the same. Here, I repeat, the respondent / plaintiff took a categorical stand
not only of there being no Agreement to Sell in writing but also gave an
explanation therefor. The question which arises for consideration is, whether
a plaintiff in a suit for specific performance of an agreement of sale of
immovable property can substitute by way of amendment one agreement for
another. The impugned order though notices that the respondent / plaintiff by
way of amendment was taking a contrary stand, still allows the amendment
reasoning that the cause of action remains the same and the relief claimed in
suit remains the same. The impugned order does not notice that the
agreement to sell for specific performance of which suit was filed, was being
substituted for another.
27. The reason given in the application for amendment may also be noted.
Paras 5 to 8 of the application for amendment in this regard are as under:-
"5. That the plaintiff's late husband was dealing with
the property and was discussing the matter with
the defendant till the time of his death and
plaintiff was not fully aware of the nature and
contents of the documents with her. She had
affixed her signature in some of the documents
prepared by her late husband, the significance of
which she was not aware and she was not having
these documents in her custody.
6. That on the death of the plaintiff's husband on
9.2.1986 the defendant communicated to the
plaintiff that she was no longer prepared to sell
the property to the plaintiff and as such the
plaintiff was forced to file the present proceedings
on the basis of the oral agreement to sell as she
CM(M) 11/2017 Page 10 of 17
was not having the written agreement nor she was
aware of the existence of such a written
agreement to sell.
7. That subsequent to fixing the date of trial the
plaintiff came to know that as a matter of fact the
oral agreement to sell was reduced to writing by
the deed of Agreement. To Sell executed by the
defendant on 03.10.1985.
8. That recently it has come to the knowledge of the
plaintiff that an agreement to sell was duly
executed by the defendant and other documents
like the general power of attorney in favour of the
plaintiff's late husband, showing that the
defendant has executed all necessary documents
including the agreement to sell in favour of the
plaintiff. These have been received through Mr.
Bhaumik who is a common friend."
28. Significantly, the respondent / plaintiff at the time of institution of the
suit did not state that she had affixed her signatures on some documents
prepared by her late husband and that the said documents were not found by
her. It is also not as if the Agreement to Sell in writing was signed on behalf
of the respondent / plaintiff by the husband of the respondent / plaintiff and
the suit was also instituted in his lifetime and the respondent / plaintiff
impleaded herself in the suit only after the death of her husband and
subsequently discovered the Agreement to Sell. The husband of the
respondent / plaintiff is stated to have died on 9th February, 1986 i.e. more
than one year prior to the institution of the suit. Only a vague averment is
made in the application for amendment that the documents have been
received "through Mr. Bhaumik who is a common friend", without even
disclosing as to how the documents went into the custody of the said Mr.
CM(M) 11/2017 Page 11 of 17
Bhaumik or as to when the said Mr. Bhaumik delivered the same to the
respondent / plaintiff or as to what occasioned the said Mr. Bhaumik to now
deliver the same to the respondent / plaintiff.
29. A perusal of the order dated 7th December, 1987 of dismissal of the
application of the respondent / plaintiff under Order XXXIX Rules 1&2 of
the CPC also shows a categorical stand having been taken by the counsel for
the respondent / plaintiff in the hearing thereof that the Agreement to Sell of
which specific performance was sought, was oral. Reliance rather was placed
on certain letters, extracts whereof are reproduced in the said order, to show
the keen desire of the petitioner / defendant to sell the property subject
matter of suit to the respondent / plaintiff. The order dated 7th December,
1987, after perusing the said letters, held that it was difficult at that stage to
believe the existence of any oral Agreement to Sell, especially in regard to
the price and the mode of payment of the same and goes on to further
observe that "it is further difficult to believe that when there was
correspondence between the plaintiff‟s husband on the one hand and the
defendant on the other, where was the difficulty in not formalising a
document evidencing the agreement to sell. There may have been roving
talks but not a concluded agreement to sell".
30. The possibility of the respondent / plaintiff, when the time of adducing
evidence in the suit arrived, realising the difficulty in establishing an
agreement to sell, creating the documents, cannot be ruled out.
31. The impugned order also appears to have been influenced by the
admission of the petitioner / defendant of the signatures on the Agreement to
Sell in writing and GPA being hers. However in my opinion the learned
CM(M) 11/2017 Page 12 of 17
Civil Judge erred in relying on the admission selectively. The averments of
the petitioner / defendant in the application under Order XIII Rule 2 of the
CPC did not amount to admission of the existence of the Agreement to Sell,
for the learned Civil Judge to hold that notwithstanding the respondent /
plaintiff having not earlier pleaded the same, amendment could be permitted.
What the petitioner / defendant stated in the application under Order XIII
Rule 2 of the CPC was that though there was no Agreement to Sell in writing
but the respondent / plaintiff had created Agreement to Sell and GPA by
obtaining signatures of the petitioner / defendant while she was in semi-
conscious state and by using coercion.
32. In my view, a plaintiff in a suit for specific performance, cannot by
way of amendment, substitute one agreement to sell for another.
33. I say that the Agreement to Sell in writing, pleaded by amendment and
the agreement to sell for specific performance of which the suit was
originally instituted are different, because:-
(i) While the Agreement to Sell in writing is dated 3 rd October,
1985, the agreement to sell for specific performance of which
the suit was originally filed was pleaded to be of 10th May,
1985.
(ii) While the Agreement to Sell in writing is for sale consideration
of Rs.2,05,240/- and out of which a sum of Rs.5,240/- had been
paid in cash on 11th August, 1985 and a sum of Rs.50,000/- had
been paid through Bank Draft dated 21st August, 1985, as
earnest money and the balance amount of Rs.1,50,000/- was to
be paid at the time of transfer of the property, agreement to sell
CM(M) 11/2017 Page 13 of 17
for specific performance of which the suit was originally filed
was for Rs.2,05,240/- out of which a sum of Rs.50,000/- was
paid by means of cheque dated 15th May, 1985 (subsequently
substituted with Bank Draft) and the balance amount of
Rs.1,55,240/- was agreed to be paid at the time of execution of
the Sale Deed.
(iii) While the Agreement to Sell in writing is for payment of the
balance amount of Rs.1,50,000/-, the agreement to sell for
specific performance of which the suit was originally instituted
was for payment of the balance sale consideration of
Rs.1,55,240/- by means of National Saving Certificate for three
years of Rs.50,000/-, Rs.50,000/- by Account Payee Demand
Draft, Rs.30,000/- in cash and Rs.25,240/- in the form of
jewellery.
(iv) While the Agreement to Sell in writing records that the
petitioner / defendant had handed over physical possession of
the property to the respondent / plaintiff, under the agreement to
sell for specific performance of which this suit was originally
filed, possession of the property was not delivered by the
petitioner / defendant to the respondent / plaintiff at the time of
Agreement to Sell.
(v) While the oral agreement to sell of 10th May, 1985 for specific
performance of which suit was originally filed, qua payment of
part of balance sale consideration in jewellery was reiterated by
the petitioner / defendant on 29th August, 1985, the
CM(M) 11/2017 Page 14 of 17
Agreement to Sell in writing contains no mention of the
jewellery.
34. In my view, the learned Civil Judge, in the impugned order, erred in
holding that no new cause of action was being set up by the respondent /
plaintiff and the relief claimed in the suit remained the same. The learned
Civil Judge did not notice the aforesaid differences between the agreement to
sell for specific performance of which the suit was originally filed and the
Agreement to Sell sought to be set up by way of amendment. An Agreement
of Sale of immovable property, besides the parties and the property agreed to
be sold, has a large number of other ingredients and once the said ingredients
change, it can no longer be said to be the same Agreement merely because
the parties and the property is the same. Once the agreement to sell for
specific performance of which suit was originally filed, was substituted for
another Agreement to Sell, the cause of action also changed and cause of
action for specific performance of one agreement to sell cannot be cause of
action for specific performance of another Agreement to Sell. The
respondent / plaintiff by way of amendment sought in the year 1993 was
seeking specific performance of an Agreement to Sell entirely different from
the Agreement to Sell for specific performance of which the suit was
instituted in the year 1987 and the claim for seeking specific performance of
the Agreement sought to be set up by way of amendment of the plaint was on
the date of applying for amendment barred by time and could not have been
permitted.
35. Moreover, the settled principle relating to amendment of plaints is,
that admissions made cannot be withdrawn. The respondent / plaintiff in the
CM(M) 11/2017 Page 15 of 17
plaint as originally filed made an express admission of there being no
Agreement to Sell in writing and could not have been permitted to withdraw
the said admission by way of amendment.
36. As far as the judgments cited by the counsel for the respondent /
plaintiff are concerned -
(A) Andhra Bank and Rajesh Kumar Aggarwal supra are on the
aspect of the Court, at the stage of considering the application
for amendment, being not entitled to go into the merits of the
amendment or the correctness or falsity of the case set up in the
amendment. (I have however, in aforesaid reasoning, not gone
into merits of amendment).
(B) Rajesh Sharma supra is on the aspect of, when the trial
commences (However the proviso to Order VI Rule 17 of the
CPC was introduced vide amendment in the year 2002 to the
CPC and is not applicable to the suit from which this petition
arises which was instituted prior thereto in the year 1987).
(C) Rajkumar Gurawara supra lays down that pre trial amendments
are to be allowed liberally (However it also holds that
amendments as may be just and bona fide are to be allowed; in
the present case, for the reasons aforesaid, the amendment
sought by the respondent / plaintiff is not found to be just or
bona fide).
(D) A.K. Gupta and Sons and Prithi Pal Singh supra lay down that
CM(M) 11/2017 Page 16 of 17
though amendment to set up a new case or a new cause of
action is not to be allowed but where the amendment does not
constitute addition of a new cause of action or raising a new
case and amounts to nothing more than a different or additional
approach to the facts already on record, it does not amount to
setting up a new case. (However in the facts aforesaid, the
respondent / plaintiff, by way of amendment, is seeking to
change the facts by pleading a different agreement to sell of
which specific performance is sought by amendment than the
agreement to sell for specific performance of which the suit was
originally filed).
(E) Prestige Lights Ltd. supra lays down that the petitioner who is
guilty of misleading the Court is to be non-suited; relying
thereon, it is contended that the petitioner / defendant herein
suppressed its application under Order XIII Rule 2 of the CPC
(However, the petitioner / defendant herein cannot be accused
of concealment since the same is mentioned in the impugned
order which has been produced before this Court).
37. The petition thus succeeds. The impugned order dated 19th November,
2016 allowing the amendment cannot be sustained and is set aside.
Resultantly, the application for amendment moved by the respondent /
plaintiff is dismissed.
The petition is disposed of.
RAJIV SAHAI ENDLAW, J.
MAY 29, 2018/bs/„pp‟..
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