Delhi District Court
Vijay Pal vs Ajmal & Ors on 10 July, 2013
IN THE COURT OF MS. SHAMA GUPTA: CIVIL JUDGE : 16
CENTRAL
TIS HAZARI COURTS : DELHI
Suit No. 146/11
Vijay Pal
.......... Plaintiff
VERSUS
Ajmal & Ors
.........Defendant
O R D E R
1. Vide this order, I shall dispose off the application filed by the plaintiffs under order VI Rule 17 CPC seeking amendment of plaint averring that along with the original plaint, he had filed the site plan in which the number of suit property was mentioned as 21 instead of 21 A, but plaintiffs are claiming right only with respect to property bearing no. 21 A, situated within the old Dora bearing Khasra No. 161, Village Joga Bai on the ground that same is ancestral property of Sh. Kure Ram and the plaintiffs are the sons of Sh. Tek Ram, one of the son of Sh. Kure Ram. It is further averred that they have also stated in the plaint that suit property ad measuring 300 Sq. Yards had fallen to their share on account of family settlement between the sons of Late Sh. Kure Ram and by virtue of same the plaintiffs are in possession of suit property from time immemorial.
2. It is averred that on these facts they had filed the present suit averring that defendants had no right, title or interest in respect of subject matter in dispute.
Suit no. 146/11 Vijay Pal Vs. Ajmal & Ors. 1/7
3. It is further averred that in the W.S, the defendants had raised the objection that in the garb of present suit, the plaintiffs are trying to grab the property bearing no.21 by representing the same as property bearing no.21 A, but it is averred by the plaintiffs that in the site plan, the number of suit property was inadvertently wrongly typed as 21 instead of 21 A and only on this ground, the application of the plaintiff under order XXXIX Rule 1 and 2 has been dismissed, and in appeal, Ld. Appellate court had directed the parties to maintain status quo and to carry out amendment in the site plan to bring the same in consonance with the relief clause.
4. Thus, by virtue of present application, the plaintiffs wish to amend the plaint thereby adding para No. 1A, 7A and 8 A, mentioning the following facts :
1A . " That house No. 21 A is a part and parcel of House no. 21 which in fact was ancestral house of the plaintiffs and said house was partitioned and divided between the sons of Late Sh. Kure Ram and thus was re assigned House No. 21 A, 21 B, 21 C and 21 D and subdivision was done by co owners at the time of division by way of family settlement and consequently the portion bearing no. 21 A as shown in site plan in red, green and yellow came to the exclusive possession and occupation of the plaintiffs father Sh. Tek Ram. The suit property as shown in yellow color came to the exclusive share and occupation of plaintiff no.1 and 2, property shown in green color came to the share of plaintiff no.3, and the red portion came to share of Rajesh which he had sold, alienated and transferred to third parties."
7A. "The father of the plaintiffs namely Sh Tek Ram was never the Suit no. 146/11 Vijay Pal Vs. Ajmal & Ors. 2/7 owner of house no. 21 as the portion which had fallen to his share had been registered as House No. 21 A at the time of family settlement between him and his brothers. Since the portion had been re numbered as House No. 21 A as such Sh Tek Ram never had any right, title or interest in respect of house no. 21 at the time of his death which House no was not in existence at that time.
In para no. 8 A the plaintiffs wish to mention that the defendants are falsely and illegally claiming that House No. 21 A which is in possession of the plaintiffs is acutally House no. 21 Village Joga Bai. The defendants on this pretext are illegally trying to interfere in the peaceful possession of the plaintiffs in house no. 21 A as clearly depicted in site plan annexed. The defendants have no right, title or interest in any portion of house shown in yellow and green color in site plan which is in exclusive possession of plaintiffs alone. It is further averred that Sh Rajesh or any body else had at no time remained in possession of portion as shown in green and yellow color in any capacity what so ever, and defendants had no right over the same. It is averred that the amendment is necessary for the just decision of the case.
5. Reply to the said application was filed by the defendants seeking dismissal of present application averring that the plaintiffs by misusing the provision of order VI Rule 17 are trying to change the nature of entire claim and hence the application has no substance.
6. It is averred that the plaintiffs had deliberately filed the site plan in respect of property bearing no. 21 which actually belonged to wife of defendant no. 1, but now when objections were raised by defendants in Suit no. 146/11 Vijay Pal Vs. Ajmal & Ors. 3/7 the W.S, the plaintiffs are trying to show that the site plan is of property bearing no. 21 A. It is further averred that in the suit the plaintiffs had stated that they have got their share in the ancestral property which is 300 Sq. Yards . Sh. Rajesh also got 300 Sq. yards and also got 50 Sq. yards more from Sh. Tek Ram, then how the property of Sh Rajesh can be claimed to be property belonging to the plaintiffs. Thus the question that arose as to where is the suit property of the plaintiffs which they have allegedly got in equal share from their ancestors, thus the plaintiffs had raised the question pertaining to belongingness and demarcation which cannot be decided in present suit for injunction.
9. It is further averred that by present suit the plaintiffs are trying to grab the property bearing no. 21 to which wife of defendant no.1 has been appointed attorney by actual owner of suit property Sh. Rajesh .
10. It is further averred that the amendments as sought would change the entire nature of the case and is not maintainable .
11. On merits, the defendant had averred that the plaintiffs had knowingly filed the site plan pertaining to property bearing no. 21 and on this ground interim injunction application has been dismissed by the court . It is further averred that under the garb of filing site plan of property bearing no. 21 A, the plaintiffs are trying to show that property bearing no. 21 A is a part and parcel of property bearing no. 21 which is totally wrong . It is further averred that the plaintiffs had not filed any document to show where the property is situated, if they got share from ancestral property and to show it is standing in their names or to show their possession over the same, hence the suit itself is not maintainable. It is further averred that Suit no. 146/11 Vijay Pal Vs. Ajmal & Ors. 4/7 before Ld. Appellate court plaintiffs had given a statement that property bearing no. 21 and 21 A are two different properties and now the plaintiffs are raising baseless plea that property bearing no. 21 A is a part of property bearing no. 21 .
12. It is further averred that in the garb of present suit the plaintiffs are trying to change the nature of suit as one for declaration and partition.
13. Despite opportunities neither the plaintiffs nor the defendant had addressed arguments, but counsel for the defendants had placed reliance on following judgments:
Monika Banerjee Vs. Biswabikash Sen Gupta AIR 1986 Calcutta 113 but the reliance on this is misplaced as in the said decision it is observed that when by virtue of proposed amendment the applicant is pleading entirely different case which is not aiding the case of plaintiff then the application is liable to be rejected, but in present case the plaintiff is not introducing new facts, but the plaintiffs had only amended the site plan in order to bring the same in consonance with the relief clause and further the facts which the applicant wants to incorporate are only explaining the facts earlier pleaded .
Kesho Lal Kapoor & Ors Vs. Vinod Kumar & Anr. 81(1999) DLT 20, but the decision in said case is not relevant for deciding the present application as in the decision relied, by proposed amendment the applicant in that suit wants to incorporate the facts which is superseded in view of subsequent acts of the parties, but in present case there is no subsequent acts on part of either party making the proposed amendment in effective. The third decision relied by the defendants is J. Samuel and Ors Vs. Gattu Suit no. 146/11 Vijay Pal Vs. Ajmal & Ors. 5/7 Mahesh and Ors 2012(110) AIC 24 (S.C), wherein it was observed as to what is meant by typographical error and it means mistake made in the printed/typed material during printed/typing process but excludes errors due to ignorance.
14. On perusal of records of the case in the light of rival submissions of both the parties as stated in the application as well as reply, this court is of considered opinion that all the grounds raised by the defendants seeking dismissal of present application is on the maintainability of the suit which cannot be considered at the stage of deciding application under order VI Rule 17 CPC and at the stage of deciding present application, the plaintiffs are required to plead, whether the proposed amendment is necessary for adjudication of real disputes between the parties and why the application is not moved prior to commencement of trial.
15. Perusal of contents of application reveals that the plaintiffs had averred that by clerical mistake in the site plan the number of the property was mentioned as 21 instead of 21 A, thus according to the plaintiffs they had filed the site plan with respect to property bearing no. 21 A, but inadvertently the number was mentioned as 21. Now the questions, whether the same was because of typographical mistake or it was deliberately filed by the plaintiffs as averred by the defendant and whether site plan is correct as per site or not and whether it supports the case of plaintiffs or not, is a matter of trial, but it does not changes the nature of the suit.
16. Further, the plaintiffs through proposed amendment wants to explain the factum of family settlement earlier pleaded to show how they Suit no. 146/11 Vijay Pal Vs. Ajmal & Ors. 6/7 are in exclusive possession over suit property, so in considered opinion of this court, the proposed amendment is necessary for the proper and effective adjudication of the present case and for determining the real controversy between the parties.
17. In the present case, the plaintiffs were given the liberty by Ld. Appellate Court vide order dated 13.09.2011 to move application to carry out necessary amendment in site plan, but there is certainly delay in moving the application as the present application is filed highly belatedly and that too after the commencement of trial, but because of delay no vested right had accrued in favour of the defendant which cannot be compensated by cost, but if the application is not allowed it will lead to multiplicity of litigation between the parties.
18. Further, the cross examination of plaintiff's witness had not yet concluded, therefore the defendants have the opportunity to test the veracity of the plaintiff's witness with respect to site plan during their cross examination, thus it is in interest of justice that the application of the plaintiffs be allowed.
With aforesaid observations, the application of plaintiffs is allowed but subject to cost of Rs. 5,000/ to be paid to opposite party by the plaintiffs.
(SHAMA GUPTA)
CIVIL JUDGEC16/THC
DELHI /10.07.2013
Suit no. 146/11 Vijay Pal Vs. Ajmal & Ors. 7/7
CS No.146/11
Vijay Pal Vs. Ajmal & Ors.
10.07.2013
Present: None.
Vide separate order of even date, the application of plaintiffs is allowed but subject to cost of Rs. 5,000/ to be paid to opposite party by the plaintiffs.
Put up for further proceedings on 02.09.2013.
(SHAMA GUPTA)
CIVIL JUDGEC16/THC
DELHI /10.07.2013
Suit no. 146/11 Vijay Pal Vs. Ajmal & Ors. 8/7