Delhi District Court
Vide This Order I Shall Dispose Off An ... vs . on 31 August, 2012
1
IN THE COURT OF SH. SANJEEV AGGARWAL LD. ADJ03
(CENTRAL) DELHI
Suit No. 110/08
31.08.2012
Smt. Priti Pratap Singh
Vs.
Rani Prem Kumari & Ors
O R D E R
1. Vide this order I shall dispose off an application U/o 6 Rule 17 r/w S 151 CPC filed by the plaintiff.
2. Brief facts are the plaintiff had filed a suit for partition and injunction against the defendants with regard to the property left behind by her father Late Raja Pratap Singh. It is further stated that after filing of the present suit the plaintiff had realized that the defendants were contending that the Fort and Palace had been transferred to a Trust Known as the Ma Anandmayee Kuchaman Trust.
3. It is further stated that the plaintiff was aware of a Trust Deed executed in 1978 and Registered at Bombay. However, the defendants had set up a new case of a new trust. The said trust was impleaded as a party on an oral prayer of defendant on 05.12.1994.
4. It is further stated that after many inquiries and time consuming efforts in the different offices, the plaintiff got some information in bits and pieces about the alleged transfer of the Suit No. 110/08 Priti Pratap Singh Vs. Rani Prem Kumari 2 Fort and Palace to this new Trust. Further facts came to the knowledge of the plaintiff only after the defendants through the alleged Trust responded to the application filed by the plaintiff in a suit interalia challenging the registration of the alleged trust before the court at Parbatsar and after order dated 19.10.2011 was passed by the Additional District & Sessions Judge Parbatsar Rajasthan, based upon the defence of the alleged trust, the plaintiff made further inquiries in the relevant offices.
5. It is further submitted that the so called trust allegedly registered in Rajasthan on 27.03.1984 as relied upon by the defendants as the alleged owner of the Kuchaman Fort and Palace is a complete sham. The said trust of 1984 not having been validly constituted could not have hold any property.
6. It is further stated that she was not in possession of the full facts relating to the construction, status and the formation of the alleged trust of 1984. The plaintiff submits that since she is seeking a partition in respect of all the properties left behind by her father, she was filing the present application for amendment of the plaint as under so that all the matters in controversy are before this Hon' ble Court and seeks permission to make the amendments by inserting para No. 9A in the plaint in this respect.
7. It is further stated that the alleged Trust of 1984 known as the Ma Anandmayee Kuchaman Trust which according to the defendants is the owner of the Kuchaman Fort and Palace does Suit No. 110/08 Priti Pratap Singh Vs. Rani Prem Kumari 3 not own the Kuchaman Fort and Palace, nor does it have any rights in the said Fort and Palace. It is submitted that there was no valid transfer of the Fort and Palace in favour of the said Trust by the late Raja Pratap Singh and hence even if the said Trust of 1984 was formed by a valid Trust Deed, which it is not, it is not the owner of the said Fort and Palace. The Fort and Palace are liable to be partitioned between the parties to the said suit.
8. It is further stated that the above amendment is bonafide and necessary for determining the real controversy between the parties. The plaintiff has filed the present application for amendment of plaint as soon as she could gather information required in respect of the alleged trust and the alleged transfer of the Fort and Palace to the Trust.
9. Defendants No. 1 to 4 have filed reply to the said application stating that the above captioned suit is near conclusion and was listed for final hearing on 25.05.11, when the plaintiff herein filed application U/o 6 Rule 17 r/w S 151 CPC seeking amendment to the plaint. It is stated at the outset that, U/o 6 Rule 17 provisio, it is clearly provided that no application for amendment shall be allowed after the trial is commenced, unless the court comes to the conclusion that, inspite of due diligence, the party could not have raised the matter before the commencement of trial. In the present matter, trial commenced years back, and further the plaintiff Suit No. 110/08 Priti Pratap Singh Vs. Rani Prem Kumari 4 was aware of the facts, which are sought to be adjudicated upon in the present suit, by way of the present amendment, from the very inception of this suit and filing of written statement and documents by the defendants. Therefore, the plaintiff is wrong in stating that they have just acquired some knowledge and are seeking amendment. It is the case of the defendants that they have not come to this court with clean hands.
10. It is further stated that the plaintiff in her application submitted that after many inquiries and time consuming efforts in different offices, the plaintiff got some information in bits pieces about the alleged transfer of the Fort and Palace to the new trust. It is also the case of the plaintiff that the further facts came to the knowledge of the plaintiff only after the defendants through the alleged trust responded to the application filed by the plaintiff in a suit interalia challenging the registration of the alleged trust before the court at Parbatsar and after order dated 19.10.2010 was passed by the Additional District & Sessions Judge, Parbatsar, Rajasthan. It is also the case of the plaintiff that she was not in possession of the full facts relating to the construction, status and the formation of the alleged Trust of 1984.
11. It is stated that the plaintiff has not come to this court with clean hands, as she was aware of the creation of the trust from the very inception of the present suit and that the Kuchaman Fort and Palace have been vested in Shree Shree Suit No. 110/08 Priti Pratap Singh Vs. Rani Prem Kumari 5 Maa Anandmayee Kuchaman Trust since the year 1979. The facts which shows the same are detailed herein below:
(i)That the written statement filed on behalf of the defendants No 1, 3 & 4 on 15.05.1995 had already mentioned that the Kuchaman Fort and Palace are not the properties of Late Raja Pratap Singh.
(ii)Further, the Trust viz, Shree Shree Maa Anandmayee Kuchaman Trust, filed its written statement before this court on 31.05.1995, in which also it is clearly mentioned that the said trust, after being formed in the year 1978, was vested with the properties of Late Raja Pratap Singh Viz the fort and the palace.
(iii)It is also mentioned therein that after execution of the Trust deed on 15.02.1979, the property was mutated in the municipal record of Kuchaman in the name of the trust. It is further submitted that ever since 1979, the house tax and other dues being paid by the trust, and the name of the trust has been mutated in the municipal record.
(iv)It was also stated in the said written statement that the properties of which the plaintiff is asking for partition, are not properties of Late Raja Pratap Singh, but are the properties of Shree Shree Maa Anandmayee Kuchaman Trust. The said situation existed since 1979 onwards. A copy of the said written statement is annexed herewith Suit No. 110/08 Priti Pratap Singh Vs. Rani Prem Kumari 6 as Annexure A for the convenience of this court.
(v)Further the defendants filed following documents before this court on 11/17.08.1995:
(i) Trust deed dated 24.02.1978
(ii) Pranyas Parta dated 15.02.1979
(iii)Formal Application in form No. 6(Rule 72) to the Assistant Commissioner, Devasthan, Bikaner.
(iv) Notice under the Rajasthan Public Trusts Act, 1959 by the Assistant Commissioner, Devasthan, Jodhpur, U/s 18(2) of the Act.
(v) Holographic Will dated 06.11.1992 of Late Raja Pratap Singh.
(vi) Registered Will dated 16.11.1992 of Late Raja Pratap Singh.
(vi) The said documents clearly shows creation of the Trust in the year 1978 and its registration under the Rajasthan Public Trust Act, 1959 in the year 1984, and vesting of the Kuchaman Fort and Palace in the said trust. The said documents are annexed and marked herewith as Annexure B(colly) for the convenience of this court.
(vii)Further, in various I.A.s filed from time to time, pertaining to the Shree Shree Maa Anandmayee Kuchaman Trust, the said facts were clearly brought to the notice of the plaintiff. One such IA is IA No. Suit No. 110/08 Priti Pratap Singh Vs. Rani Prem Kumari 7 5235/1999, which was an application U/o 1 Rule 10 r/w S 151 CPC on behalf of Shree Shree Maa Anandmayee Kuchaman Trust for striking out the name of Shree Shree Maa Anandmayee Kuchaman Trust from the array of defendants in the present suit. It is clearly mentioned in the said I.A that Raja Pratap Singh by a deed dated 15.02.1979 transferred and assigned absolutely his properties situated at Kuchaman city to the said trust.
Such properties included, interalia the fort and the palace .
(viii)It is further pertinent to mention that it is mentioned in the said I.A, that the plaintiff did not file any objection even against the issuance of the certificate of registration under the Rajasthan Public Trust Act, 1959. (As such, the title of the trust in the Kuchaman Fort and Palace is perfected as the said property of Kuchaman have been recognized by the Devasthan Commissioner to be the properties of the Trust and the entries have been made in the register on the basis of the application of the author, Raja Pratap Singh). Moreover, the certificate of registration has been issued evidencing which vests in it. It is pertinent to mention that the said I.A was filed on 17.05.1999. A copy of the said I.A is annexed and marked herewith as Annexure C for the convenience of this court.
Suit No. 110/08Priti Pratap Singh Vs. Rani Prem Kumari 8
12. It is further submitted that therefore, it is clearly evident that the plaintiff was aware of the creation of Shree Shree Maa Anandmayee Kuchaman Trust, interalia under the Rajasthan Public Trusts Act 1959, and the vesting of the Kuchaman Fort and Palace in the same, from the very inception of the suit, and therefore, to seek the amendment as sought for in the present application, is belated and filed only with the intention to delay the entire trial.
13. I have heard Ld. Counsel for the plaintiff Ms. Tasneem Ahmedi and Bakshi Sri. Rang Singh, and also Counsel for defendants No 1 to 4 Ms. Seema Bengani and counsel for defendant No .5 Sh. Brijesh Kalappa. I have also gone through the written submissions filed on behalf of plaintiff and defendants 1 to 4 & 5.
14. Order 6 Rule 17 is reproduced as under:
17.Amendment of pleadings The court may at any stage of the proceedings allow either part to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has Suit No. 110/08 Priti Pratap Singh Vs. Rani Prem Kumari 9 commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
15. Counsel for the plaintiff has relied upon the judgment (2012) 2 SCC page 300 in which it was held as under:
"The Hon' ble Supreme Court has held at para 16 that reasonable cause to allow the amendment has to be shown.
The Apex Court has proceeded to hold
at Para 19 that the term ' due diligence'
determines the scope of a party' s
constructive knowledge, claim and is very critical to the outcome of the suit. It is further held in para 23 that: "This Court in various decision upheld the power that in deserving cases, the Court can allow delayed amendment by compensating the other side by awarding costs. The entire object of the amendment to Order 6 Rule 17 as introduced in 2002 is to stall filing of an application for amending a pleading subsequent to the commencement of trial, to avoid surprises and checking the delays in filing the applications."
16. On the other hand counsel for the defendants No. 1 to 4 & 5 has relied upon number of judgments in support of their contentions including judgment titled as Rajkumar Guawara Vs. S.K.Sarwagi and Company Private Ltd(2008) 14 SCC 364, Suit No. 110/08 Priti Pratap Singh Vs. Rani Prem Kumari 10 at para 12, 13 in which it was held as under:
"12. In order to consider whether the appellantplaintiff has made out a case for amendment of his plaint, it is useful to refer Order 6 Rule 17 CPC which reads as under:
"17. Amendment of pleadings: The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial."
The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this Rule is subject to proviso appended therein .
The said Rule with proviso again substituted by Act 22 of 2002 w.e.f 01.07.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the Suit No. 110/08 Priti Pratap Singh Vs. Rani Prem Kumari 11 proceedings are able to satisfy the court that inspite of due diligence they could not raise the issue before the commencement of trial and the court is satisfied with their explanation, amendment can be allowed even after commencement of the trial.
13. To put it clear, Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pretrial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the court to satisfy the conditions prescribed in the proviso."
17. In view of the law laid down in the aforesaid judgments it is to be seen in the present case, when the trial has already concluded, whether the amendments sought by the plaintiff Suit No. 110/08 Priti Pratap Singh Vs. Rani Prem Kumari 12 can be allowed or are necessary for determining the real issue in controversy between the parties. The plaintiff has contended that the defendants had suppressed certain material facts from the court as well as from the plaintiff to defeat the present suit which is the suit for decree of partition by repeatedly stating that the trust deed of 1978, the Pranayas Patra of 1979, application Form No. 6(Rule 72) and the notice under the Rajasthan Public Trust Act pertains to the formation of a single trust, while infact the defendant had formed two trusts by the same name which fact came to the knowledge of the plaintiff in a suit which was decided by the court of Sh. Parbatsar vide order dated 19.10.11.
18. On the other hand, it is the contention of the defendants that the plaintiff was aware from the date of filing of Written Statement dated 31.05.95 about the registration of Shree Shree Maa Anandmayee Kuchaman Trust in the year 1984 in Rajasthan and from the various documents including the Written Statement dated 31.05.95 filed by defendant No. 5 and defendants No. 1, 3 & 4, as also from the application U/o 1 Rule 10 CPC r/w S 151 CPC filed by defendant No. 5 dated 17.05.99 alongwith other documents mentioned in the reply of defendants No 1 to 4 and it is stated that the plaintiff was always aware that by deed of trust made at Bombay on 24.02.1978, her father Late Raja Pratap Singh created a Public Trust known as Shree Shree Maa Anandmayee Kuchaman Suit No. 110/08 Priti Pratap Singh Vs. Rani Prem Kumari 13 Trust and further by a deed dated 15.02.79 transferred and assigned the properties situated at Kuchaman city to the said trust and the said trust was also later on registered at Bikaner under the provisions of Rajasthan Public Trust Act.
19. Counsel for the plaintiff during the course of arguments did not dispute the above documents relied upon by the counsel for defendants no. 1 to 4. Further in the Written Statement filed by defendant No. 5 dated 31.05.95, defendant No. 5 had made the following averments in relevant para(s) as under:
(iv). That the said trust after being formed in 1978 was vested with the properties of Late Raja Pratap Singh namely the Kuchaman Fort and Palace by Trust Deed dated 15.02.1979 registered in the office of the Sub Registrar Kuchaman.
(v). That after the execution of Trust Deed on 15.02.1979 the property was mutated in the Municipal record of Kuchaman in the name of the trust. It is further submitted that ever since 1979 the House Tax and other dues are being paid by the Trust and the name of the Trust has been mutated in the Suit No. 110/08 Priti Pratap Singh Vs. Rani Prem Kumari 14 Municipal record.
(vi). That the trust was further registered under the Rajasthan Public Trust Act, 1959 by making a formal application in Form No. 6(Rule 72) to the Assistant Commissioner, Devasthan, Bikaner appointed for the said purpose. The said application was made in Jodhpur on 20.04.1979.
(vii). That the trust'
s application
for registration under the Rajasthan Public Trust Act 1959 was accepted and the Trust was registered under the said Act.
(viii). That before registration of the said Trust under the Rajasthan Public Trust Act the Assistant Commissioner, Devasthan, Jodhpur on 18.12.1979 took out a notice U/s 18(2) r/w Rule 21 of the Rajasthan Public Trust Act 1959 and rules thereunder stating that if any person had any objection to the grant of registration to the trust the same may be submitted in Suit No. 110/08 Priti Pratap Singh Vs. Rani Prem Kumari 15 the office of the Asstt. Commissioner, Devasthan, Jodhpur within 60 days from the date of issuing the notice.
(ix). That under the provisions of the Rajasthan Public Trust Act, no suit can be filed against a registered trust except in the manner provided under the Act namely by raising objections before the authorities concerned within the period provided under the Act and in the manner provided under the Act.
(x). That the trust, in order to augment its income and fulfilling its objectives as spelt out in the Trust Deed, decided to give the entire Kuchaman Fort including the portion which is in occupation of a Govt. School as well as other shops(Godowns) to M/s Rathore Hotels and Tours Pvt., Ltd., on lease.
20. Alongwith said Written Statement number of documents including the trust deed dated 24.02.1978 and copy of Pranayas Patra dated 15.02.1978 was also filed. Similarly, in the application U/o 1 Rule 10 CPC filed on behalf of defendant No. 5 it was stated in relevant paras as under:
Suit No. 110/08Priti Pratap Singh Vs. Rani Prem Kumari 16 7.5. By a deed of Trust made at Bombay on 24th day of February, 1978, Raja Pratap Singh crated a Public Trust known as Shree Shree Maa Anandmayee Kuchaman Trust (hereinafter referred to as the "Trust") for public charitable and religious activities. The trustees of the said trust were the creator thereof, Raja Pratap Singh, his wife Rani Prem Kumari, his daughter Raj Laxmi Shah and B.K.Shah, President of Anandmayee Sangh.
7.6. The objects of the said Trust are mentioned in Clause 5 of the Trust Deed dated 24.02.1978 which clearly spells out that the Trust is public charitable and religious Trust. A copy of the trust deed dated 24.02.1978 is annexed hereto and marked as Annexure A. 7.7. Raja Pratap Singh by a Deed dated 15.02.1979 transferred and assigned absolutely his properties Suit No. 110/08 Priti Pratap Singh Vs. Rani Prem Kumari 17 situated at Kuchaman City to the said trust and /or the trustees. Such properties included, interalia, the Fort and the Palace part of which was under
the tenancy of the STC school and they became vested absolutely on the Trust and/or the trustees. A copy of the deed dated 15.02.1979 is annexed hereto and marked as Annexure B. 7.9. The trust being a separate legal entity in the eye of law has been filing its income tax returns and having its accounts audited as provided under the Rajasthan Public Trust Act, 1959 (hereinafter referred to as the Act of 1959). A certificate dated 18.01.95 issued by the Nagar PalikaKuchaman City clearly shows that Kuchaman Fort is entered in the name of the said trust on page No .68 in the House Tax Assessment register in the year 1987
88. A copy of the certificate dated 18.01.95 is annexed hereto and marked as annexure C. Suit No. 110/08 Priti Pratap Singh Vs. Rani Prem Kumari 18 7.10. The trust filed an application on 20.04.1979 for registration of the trust under the said Act. The said application is filed by the author under his signature annexing a copy of the deed dated 15.02.1979, it has been clearly mentioned in reply to clause 6, i.e the particulars of immovable property, which includes (a) the Fort situated in the municipality of Kuchaman City and
(b) Places below the Kuchaman Fort situated in Kuchaman Municipality.
English translation of the copy of the application dated 20.04.1978 is annexed hereto and marked as annexure D.
21. In view of the said averments mentioned in the written statement filed by defendant No. 5 and defendants No. 1, 3 and 4 and also in the application U/o 1 Rule 10 CPC filed by defendant No. 5, it is apparent that the plaintiff was aware about the stand of the said trust that the Fort and Palace situated at Kuchaman City was claimed by Shree Shree Maa Anandmayee Kuchaman Trust. It was also the stand of the said trust that the said properties were not available for partition and the said defendants had also filed number of documents on Suit No. 110/08 Priti Pratap Singh Vs. Rani Prem Kumari 19 the record, which clearly show the creation of the trust and its registration under Rajasthan Public Trusts Act, 1959 in the year 1984 and the said properties were also mutated in the name of said trust, therefore the judgment relied upon by counsel for the defendant (Supra) are not applicable to the peculiar facts and circumstances of the present case, as the plaintiff has failed to show to this court that the aforesaid facts for which she is seeking amendment in her plaint were not within her knowledge inspite of exercising due diligence and it appears that the plaintiff was aware about the fact for which she is seeking amendment in the plaint from as early as in the year 1995, yet no steps were taken by the plaintiff to amend the plaint at that stage and the plaintiff allowed the trial to go on until its culmination on 24.02.11, when the matter was listed for final arguments.
22. The moving of present application thereafter when the trial had already concluded, despite the fact that the plaintiff was well aware about the facts for which she is seeking amendment now by way of present application does not appear to be bonafide. In all it cannot be said that the said facts could not have been raised by the plaintiff inspite of exercising due diligence during trial. Therefore the present application moved by the plaintiff is not bonafide and cannot be allowed and the same is abuse of process of law and filing of the same at this belated stage appears to be only with the intention to delay the Suit No. 110/08 Priti Pratap Singh Vs. Rani Prem Kumari 20 decision of the case. Consequently, same is dismissed with the costs of Rs. 20000/ Now to come up for final arguments on 20.12.12.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal) COURT ON 31.08.2012 ADJ(Central03) Delhi/31.08.2012 Suit No. 110/08 Priti Pratap Singh Vs. Rani Prem Kumari 21 Suit No. 110/08 Priti Pratap Singh Vs. Rani Prem Kumari