Sushil Kumar Karwal vs Mrs. Rita Karwal & Ors

$~47
* IN THE HIGH COURT OF DELHI AT NEW DELHI
st
Date of decision: 01 SEPTEMBER, 2026
IN THE MATTER OF:
# CNR No. DLHC012541282017
+ CS(OS) 451/2017 & I.A. 17567/2019, I.A. 11159/2022, I.A.
12455/2022, I.A. 19976/2023
SUSHIL KUMAR KARWAL .....Plaintiff
Through: Mr. Kuldeep Kumar, Advocate

versus

MRS. RITA KARWAL & ORS .....Defendants
Through: Ms. Tamali Wad, Sr. Advocate with
Mr. Varyam Pandey, Advocate for D-
3

CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT (ORAL)
1. The Plaintiff has filed the instant Suit for partition and permanent
injunction with respect of the Suit Property bearing No.146, Sukhdev Vihar,
New Delhi-110025 admeasuring area of 294.8 sq. yds. [“ Suit Property ”].
2. It is the case of the Plaintiff that the Plaintiff is in possession of the
Suit Property for the last thirty (30) years and has also been regularly paying
the house tax, electricity as well as water bills. As per the Plaintiff, the Suit
Property was allotted to the mother of the Plaintiff, Late Smt. Prakash Wati
by the Delhi Development Authority [“ DDA ”]. It is averred that the Suit
Property was constructed with joint family funds in the year 1981 and since
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Signed By:PRATEEK
Signing Date:05.09.2026
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then, the Plaintiff along with his mother has been in possession of the Suit
Property.
3. It is stated that the mother of the Plaintiff passed away on 07.06.1994,
leaving behind the Plaintiff and his elder brother, i.e., Late Dr. Shanti
Swarup Karwal, who was the husband of Defendant No.1 and father of
Defendant No.2, as her legal heirs. It is stated that Late Dr. Shanti Swarup
Karwal along with his family, left to live in the United States of America in
the year 1980.

4. It is the case of the Plaintiff that a Will was made by the Late Smt.
Prakash Wati in the year 1987 regarding the Suit Property in favour of Dr.
Shanti Swarup Karwal, on the condition that Dr. Shanti Swarup Karwal will
not sell or alienate the Suit Property to any other person beside her sons, so
long as she is alive and not even after her demise. It is stated that even
though the Plaintiff was told regarding some other Will made by Late Smt.
Prakash Wati, however, this other Will has never seen the light of the day.
5. It is stated that the Plaintiff and his elder brother, Late Dr. Shanti
Swarup Karwal both had mutually and orally agreed that both the brothers
would be the co-owners of the 50% share in the Suit Property. Thus, it is the
case of the Plaintiff that an oral partition was done at the behest of Late Dr.
Shanti Swarup Karwal, and the shares in the Suit Property have been
determined by metes and bounds between the Plaintiff and Late Dr. Shanti
Swarup Karwal, in the presence of the members of the family. It is stated
that after the demise of the Plaintiff’s mother, the Plaintiff was assured by
Late Dr. Shanti Swarup Karwal that he would be given one-half share of the
Plaintiff and had also given a No Objection/Undertaking to this effect.
6. It is stated that Dr. Shanti Swarup Karwal passed way on 27.01.2006,
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Signed By:PRATEEK
Signing Date:05.09.2026
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leaving behind the Defendant No.1 and 2, whereafter the Plaintiff came to
know that Late Dr. Shanti Swarup Karwal had entered into an Agreement to
Sell and Purchase dated 22.12.2005 [“ ATS dated 22.12.2005 ”], wherein it
was stated that the Plaintiff has already relinquished his one-half share in
favor of Dr. Shanti Swarup Karwal, which according to the Plaintiff, is not
correct.Therefore, the present Suit has been filed by the Plaintiff on the
ground that the Plaintiff is entitled to 50% of the share in the Suit Property.
7. During the pendency of the Suit, an Application being I.A. 653/2018
under Order I Rule 10 of the Code of Civil Procedure [“ CPC ”]was filed by
Defendant No.3, Ashok Dang, for being impleaded in the array of parties
inter alia on the following grounds:
i. The Defendant No. 3 was the bona fide purchaser of the Suit
Property and had entered into the ATS dated 22.12.2005 duly
executed between Late Dr. Shanti Swarup Karwal, through his
General Power of Attorney Holder, Sh. K.C. Bhatia. This fact
was always in the Plaintiff’s knowledge.
ii. After the demise of Dr. Shanti Swarup Karwal, the Defendant
No.3 had sent a notice on 19.08.2006 to Defendant No.1 and 2
for honoring the ATS dated 22.12.2005 by intimating the date
when the parties would be present in the office of concerned
Sub-Registrar for getting the sale deed executed/registered in
the name of Defendant No.3. However, when Defendant No. 3
did not receive any response to the notice dated 19.08.2006 and
learnt of the Defendants No. 1 and 2 trying to wriggle out of the
ATS dated 22.12.2005 in view of the rising market prices of the
Suit Property, the Defendant No. 3 filed a Suit being CS(OS)
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Signed By:PRATEEK
Signing Date:05.09.2026
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2245/2006 before this Court seeking specific performance of
the ATS dated 22.12.2005, whereby vide Order dated
05.12.2006, an ex parte ad-interim injunction was passed
against the Defendants No. 1 and 2 thereby restraining them
from transferring, selling, alienating, parting with possession of
or encumbering any portion of the Suit Property till disposal of
that Suit. Subsequently, vide the order dated 21.05.2007, the
interim order dated 05.12.2006 was made absolute during the
pendency of that Suit. Later, CS(OS) 2245/2006 came to be
transferred to the Additional District Judge, Saket District
Court, South-East District, Delhi and re-numbered as CS No.
9966 of 2016.
iii. In CS(OS) 2245/2006 (CS No. 9966 of 2016), the Plaintiff filed
an application under Order I Rule 10 of the CPC, which came
to be dismissed as withdrawn by the Plaintiff himself on
09.02.2007.
iv. The Plaintiff filed another Suit for partition being CS(OS)
546/2007 against the Defendants No. 1 and 2, though no
objection regarding the ATS dated 22.12.2005 was contained
therein. Ultimately, this suit was also dismissed as withdrawn
on 30.10.2007, on the ground that an alleged compromise was
arrived at between the parties therein.
v. Subsequently, the Plaintiff appeared before the ADJ, Saket
District Court in CS No. 9966 of 2016, and filed an application
under Order I Rule 3 and Order I Rule 10(2), seeking to be
impleaded as a Defendant in CS No. 9966 of 2016.
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Signed By:PRATEEK
Signing Date:05.09.2026
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vi. Shortly thereafter, the Plaintiff filed another suit being CS No.
52284/2016 before the ADJ, Saket District Court, seeking a
decree of permanent and mandatory injunction from
dispossession of the Suit Property. In this suit, the Defendant
No. 3 filed an application under Order I Rule 10 of the CPC,
which came to be allowed vide Order dated 14.09.2016 passed
by the ADJ, Saket District Court.
vii. During the pendency of his own suit being CS No. 52284/2016
before the ADJ, Saket District Court, the Plaintiff approached
this Court by way of the instant Suit, however, all the facts as
stated hereinabove were concealed.
viii. It is further stated that a second application under Order I Rule
10 of the CPC filed by the Plaintiff was dismissed vide Order
dated 24.11.2017 passed by the ADJ, Saket District Court in CS
No. 9966/2016. The Order dated 24.11.2017 was challenged by
the Plaintiff before this Court by way of a petition being
CM(Main) 1374/2017 which also came to dismissed vide Order
dated 21.11.2019 passed by this Court.
ix. Later, the second Suit being CS No.52284/2016 filed by the
Plaintiff herein for injunction was dismissed vide Order dated
29.11.2017 passed by the ADJ, Saket District Court as being
not maintainable under Order VII Rule 11(d) of the CPC.
8. I.A. 653/2018 filed by the Defendant No. 3, is an application under
Order I Rule 10 of the CPC for impleadment, which was disposed of by the
learned Joint Registrar vide the Order dated 13.02.2019, observing that the
Defendant No.3 was a necessary party for deciding the real controversy
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Signed By:PRATEEK
Signing Date:05.09.2026
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between the parties to the instant Suit. The learned Joint Registrar also
observed that the impleadment of Defendant No. 3 was necessary in order to
protect his interests. The essential observations of the learned Joint Registrar
in the Order dated 13.02.2019 are reproduced as under:-
“Amended Memo of Parties be filed by plaintiff within
two weeks. Pursuant to impleadment of applicant as
defendant in the case, plaintiff is at liberty to amend
the suit. The amended plaint, if any be filed by plaintiff
within two weeks with advance copy to counsel for
applicant.

IA stands disposed of accordingly.”

9. The above Order dated 13.02.2019 passed by the learned Joint
Registrar was the subject matter of challenge in the Chamber Appeal bearing
O.A. 54/2019 preferred by the Plaintiff herein. The said Chamber Appeal
was dismissed by a Coordinate Bench of Court vide Order dated
11.09.2019.It is pertinent to note that while considering the Chamber
Appeal, the Coordinate Bench of this Court noticed Paragraph No. 12 of the
Plaint, which depicts that the Plaintiff had, on an earlier occasion also,
approached this Court by filing a Suit for partition, which was ultimately
withdrawn on the basis of compromise. Paragraph 12 of the Plaint which has
been noted by the Coordinate Bench in the Order dated 11.09.2019 reads as
under:-
“12. That the cause of action to file the present this
suit firstly arose in favour of the plaintiff when after
the death of his mother, the plaintiff had asked his
brother Dr. Shanti Swarup Karwal to divide the suit
property and to give him his 50%share but the brother
of the plaintiff, despite of repeated request had not
given the 50% share of the plaintiff in the suit property.
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Signed By:PRATEEK
Signing Date:05.09.2026
20:04:29

The cause of action has further arose after the death of
Dr.Shanti Swarup Karwal in 2006 when the plaintiff
had also asked the defendant to divide the suit property
and give him his50% shares in the suit property but the
defendant have also not paid any heed on the request
of the plaintiff and are avoiding the partition of the suit
property. It is again arose in 2007 when the plaintiff
came to know about the agreement to sell in respect of
the suit property, entered into between the attorney of
late Dr. Shanti Swarup Karwal and one Mr. Ashok
Dang, and thereafter a suit for partition was filed by
the plaintiff in 2007before the Hon’ble High Court
where a compromise had been taken place between the
plaintiff and the defendants herein and even that is not
in dispute by the proposed defendant also. Even the
main person and beneficiary, Dr. Shanti Swarup
Karwal and his wife and son have not objected and
whispered about any Will. Nor they have relied upon
any Will in question. The cause of action again arose
on 01.06.2016 when the threats to go away, by leaving
the property, was extended to the plaintiff by associates
of so called purchaser of the suit property. The cause
of action is still subsisting and continuing in favour of
the plaintiff and against the defendants.”

10. Be that as it may, the fact remains that the Chamber Appeal filed by
the Plaintiff against the impleadment of Defendant No. 3 and permitting the
amendment of the Plaint, stood dismissed. That being so, an amended Plaint
was also filed by the Plaintiff, and the same is on record. Though a written
statement has been filed by the Defendant No. 3, which is also a matter of
contention as to whether the same was filed within time or not, an
application under Order VII Rule 11 of the CPC has been filed by the
Defendants No. 3 inter alia on the ground that without there being an
application under Order VI Rule 17 of the CPC, the amended Plaint could
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Signed By:PRATEEK
Signing Date:05.09.2026
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not have been taken on record.
11. It is the contention of the learned Senior Counsel for Defendant No.3
that an amended Plaint could not have been filed, without taking permission
from the Court, as the amended Plaint changes the entire nature of the Suit.
It is submitted that the Court alone has power to permit such amendments to
the Plaint.
12. The above contention of the learned Senior Counsel for the Defendant
No. 3is objected to by the learned Counsel for the Plaintiff, on the ground
that the Defendant No.3 never challenged the Order dated 13.02.2019 passed
by the learned Joint Registrar, which permitted the Plaintiff to file an
amended Plaint, nor was any such objection raised in the when the Chamber
Appeal being O.A. 54/2019 was being heard by the Coordinate Bench of
this Court.
13. Reference by the learned Counsel for the Plaintiff is also made to the
Chapter II Rule 3 of the Delhi High Court (Original Side) Rules, 2018
[“ DHC OS Rules ”] which gives the power to the Joint Registrar to consider
an application to amend the plaint, petition, written statement, replication or
subsequent proceedings where amendment sought is formal in nature. It is
submitted by the learned Counsel for the Plaintiff that the plaint had to be
amended in view of the impleadment of Defendant No.3.
14. The learned Counsel for the Plaintiff avers that in any event, the
above challenge to the amended Plaint cannot be raised in an application
under Order VII Rule 11 of the CPC, as such a challenge would not fall in
any of the categories enumerated under Order VII Rule 11 of the CPC, for
rejection of the plaint.
15. Heard learned Counsel for the parties and perused the material on
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record.
16. Chapter II Rule 3(2) of the DHC OS Rules reads as under:-
“ 3. Powers of the Registrar.—

The powers of the Court, including the power to
impose costs in relation to the following matters, may
be exercised by the Registrar:

xxx

(2) Application to amend the plaint, petition, written
statement, replication or subsequent proceedings
where the amendment sought is formal ;”

(emphasis supplied)

17. This Court is prima facie in agreement with the contention of the
learned Counsel for the Plaintiff, that the objection taken by the learned
Senior Counsel for the Defendant No. 3 cannot be considered within the
ambit of Order VII Rule 11 of the CPC. But before considering the
application under Order VII Rule 11 of the CPC filed by the Defendant
No.3, this Court deems it fit to consider whether the learned Joint Registrar
could have permitted the amendment of Plaint, while allowing an
application under Order I Rule 10 of the CPC, wherein the amendment to
the Plaint is of substantive nature that reliefs are being sought against
Defendant No.3.

18. A perusal of the amended Plaint which has been filed by the Plaintiff
shows that the Plaintiff has now prayed for a declaration that the Plaintiff is
the absolute owner of the Suit Property on the basis of adverse possession, a
prayer which was not made in the original Plaint. The amended Plaint also
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Signed By:PRATEEK
Signing Date:05.09.2026
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seeks for a declaration that the unregistered ATS dated 22.12.2005 is a
forged, fabricated and void document, as the Plaintiff has never relinquished
his share in favor of his brother. The amended Plaint further seeks
declaration that the general power of attorney dated 17.07.2004 executed by
Dr. Shanti Swarup Karwal in favour of K.C. Bhatia, who entered into the
power of attorney on behalf of Defendant No.3 as null and void as loss of
enforceability by the death of Dr. Shanti Swarup Karwal and also for further
orders. All these prayers were not sought for by the Plaintiff in the old
Plaint. Rather, no prayer for declaration of any kind was sought in the Plaint
as originally filed.
19. In the opinion of this Court, a perusal of Chapter II Rule 3 of the DHC
OS Rules permits the learned Joint Registrar to only permit inter alia
amendment(s) that are formal in nature, such as, filing of an amended memo
of parties etc.
20. Order VI Rule 17 of the CPC specifically provides the manner in
which pleadings can be amended. Order VI Rule 17 of the CPC is
reproduced 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 in spite of due
diligence, the party could not have raised the matter
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before the commencement of trial.”

21. Reading of the wordings of Order VI Rule 17 of the CPC makes it
clear that without an application under Order VI Rule 17 of the CPC, even
the Court cannot permit amendment of pleadings, more so, when the
amendment is substantial in nature where new reliefs are being sought. As
such, when a Court itself does not have the power to permit the amendment
of plaint without there being a formal application, the Joint Registrar surely
cannot permit amendment of plaint without there being any application
under Order VI Rule 17 of the CPC, that too when the plaint is being
amended after parties are impleaded and specific reliefs are sought against
the party who is newly under Order I Rule 10 of the CPC.
22. The Court has to, while examining an application under Order VI
Rule 17 of the CPC apply its mind as to whether the amendment can be
permitted at all or not, and whether the amendment would result in giving
life to dead claims or changes the nature of the suit or that the Plaintiff is
trying to go back on admission made in the plaint. An order permitting an
application under Order VI Rule 17 of the CPC is not mechanical in nature
and requires application of mind by a Court, as substantive rights of the
parties are at stake, which have to be adjudicated after the plaint is amended
and more particularly when amendment to the plaint dates back to the date
of the filing of the suit.

23. It is trite law that amendment dates back to the filing of the Suit [Ref:
Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393 ]. In fact, the Court cannot
even exercise its inherent powers under Section 151 of the CPC to permit
amendment of pleadings, without there being any application under Order
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VI Rule 17 of the CPC, meaning thereby, that the pleadings cannot be
allowed to be amended by this Court suo motu . Therefore, in the opinion of
this Court, the amended Plaint filed by the Plaintiff pursuant to the Order
dated 13.02.2019 passed by the learned Joint Registrar, cannot be taken on
record sans an application under Order VI Rule 17 of the CPC.
24. Accordingly, the amended Plaint is returned to the Plaintiff, with
liberty to the Plaintiff to move an application under Order VI Rule 17 of the
CPC, seeking permission to amend the Plaint. The written statement filed by
Defendant No.3 to the amended Plaint is also, as a natural consequence,
returned.
25. In view of the foregoing findings, this Court is also inclined to
dispose of the application under Order VII Rule 11 of the CPC, i.e., I.A. No.
17567/2019 filed by the Defendant No. 3 as having become infructuous.
Needless to state, the Defendants would have the liberty to move a fresh
application under Order VII Rule 11 of the CPC, when and if the Plaintiff’s
application under Order VI Rule 17 of the CPC is permitted by this Court
and the amended Plaint is brought on record.
26. List on 14.12.2026.



SUBRAMONIUM PRASAD, J
SEPTEMBER 01, 2026
hsk/ap


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CS(OS) 451/2017 Page 12 of 12

Signed By:PRATEEK
Signing Date:05.09.2026
20:04:29