Full Judgment Text
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of Decision: 19 March, 2025
+ CM(M) 1109/2015 & CM APPL. 26389/2015
INDER RAJ (DECEASED THR LRS) .....Petitioner
Through: Mr. Madan Lal Sharma with
Mr. Amit Kumar, Advocates.
versus
MALIK CHAND GROVER & ORS .....Respondents
Through: Mr. M K Singh, Advocate for
respondent No.3
Ms. Puja S. Kalra, Advocate for
respondent No.4.
Mr. Sunil Dalal, Sr. Advocate with
Mr. J Singh, MR. Bhusahn Arora,
Mr. Shryas Malik, Ms. Saumitra
Saxena, Mr. Nikhil Beniwal,
Mr. Navish Bhati, Ms. Shipra Bali
and Ms. Riya Rana, Advocates for
respondent No.5.
CORAM:
HON'BLE MR. JUSTICE MANOJ JAIN
J U D G M E N T (oral)
1. Petitioner is successor-in-interest of original plaintiff Sh. Inder Raj
and is aggrieved by order dated 07.09.2015 passed by learned Trial Court
whereby application moved by the plaintiff under Order VI Rule 17 CPC
has been dismissed.
2. Let me give a very brief factual matrix of the case.
3. Sh. Inder Raj (original plaintiff) and Sh. Malik Chand Grover
(original defendant No.1) were real brothers.
4. Plaintiff had filed a suit seeking declaration, cancellation of sale deed
and permanent and mandatory injunction.
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5. According to plaintiff, Plot No. A-20, W.H.S. Timber Block, Kirti
Nagar, was jointly allotted to him and his said brother i.e. defendant No.1 by
DDA in the year 1982.
6. The allotment was by virtue of a perpetual lease deed .
7. Since the allotment was joint, plaintiff and defendant No.1 became
owner of half share each of the abovesaid plot i.e. in equal proportions.
According to plaintiff, defendant No.1, however, occupied an area of 270 sq.
yards and started doing business in such area whereas the area which came
to his occupation was mere 180 sq. yards.
8. The plaintiff also asserted that since the lease was in joint names, as
per the terms of the lease deed, the property could not have been sold or
transferred without permission of plaintiff or, for that matter of DDA, to
anyone. Moreover, being a joint owner, he had right of pre-emption.
9. Without elaborating further details and averments made in the suit,
according to petitioner, the abovesaid portion in occupation of defendant
No.1 had been sold/transferred by him to defendant No.2 Kuldeep Kaur
(who also subsequently transferred the same to defendant No.5) and it was
in the abovesaid backdrop that while challenging such sale deed dated
23.02.2005, the suit was filed in the year 2005 itself, with the following
prayers:-
“i. Declaring that the following alleged documents in regard to the
property No. A-20, W.H.S., Timber Block, Kirti Nagar, New Delhi
and more specifically shown in RED COLOUR in the Site Plan
filed herewith, all under signatures of Defendant no.1 :
a. Agreement to Sell 23.02.2005;
b. G.P.A. dated 23.02.2005;
c. S.P.A. dated 23.02.2005.
d. Any other documents or Sale/Transfer is executed by the
Defendant no.1
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are neither valid nor binding upon the plaintiff, and have been
executed as a result of a fraud perpetrated by the Defendants no.1
and 2.
ii. Declaring that property known as No. A-20, W.H.S., Timber-Block,
Kirti Nagar, New Delhi and more specifically shown in RED
COLOUR in the Site Plan filed herewith, is owned by the Plaintiff
and Defendant No. 1 and its title thereto has not been divested by
the acts of Defendant no. 1
iii Restraining the Defendants No. 1 and 2 from further selling
mortgaging, alienating, letting or creating any third party interest
over property No. A-20, WHS, Timber Block, Kirti Nagar, New
Delhi and more specifically shown in RED COLOUR in the Site
Plan filed herewith,
iv Pass a decree of Mandatory directing the Defendant no. 1 and 2 to
handover the original lease deed, C Form, D form and other
documents regarding the property in question and to restore the
physical possession of the property No. A-20, WHS, timber Block,
Kirti Nagar, new Delhi and more specifically shown in RED
COLOUR in the Site Plan filed herewith, as it was before
23.02.2005 and the Defendant no.4 may kindly be directed to
remove all illegal and unauthorized construction over the suit
property.
v. The Defendant no. 1 be directed to execute necessary documents of
transfer of the property in question in favour of the Plaintiff, as the
Plaintiff is having the right of pre-emption being the co-lessee of
the property in question.
v. Any other order or orders relief or reliefs as the Hon’ble court
deem fit and proper under the circumstances of the whole case may
also kindly be awarded in favour of the Plaintiff.
vi. Cost of the suit and such other relief as the court deems proper, be
also awarded.”
10. It will also be important to mention that during pendency of the
abovesaid suit, plaintiff sought amendment, the first one, in the plaint by
filing an application on 10.12.2007. Such amendment was allowed by
learned Trial Court. Thereafter, plaintiff, again, moved an application
seeking amendment in the plaint and even such amendment was allowed.
11. The case, eventually, reached the stage of final arguments and when
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the Court had started hearing final arguments, yet another application was
moved by the plaintiff seeking amendment in the suit and the subject matter
of the present petition is rejection of the abovesaid application.
12. Before touching other aspects of the controversy in hand, it needs to
be highlighted that by virtue of proposed amendment, plaintiff is seeking
incorporation of several paragraphs in his plaint and is also seeking
additional prayers to the following effect:-
“vii) The decree of declaration may be passed in favour of the plaintiff
and against the defendants whereby the Order of the L.G. dated
29.08.2007 be declared null and void whereby the sub-division of plot
no. A-20, W.H.S. Timber Market, Kirti Nagar, New Delhi, measuring 450
sq.yds. in two portions i.e. 180 sq.yds. in favour of plaintiff given no.A-
20/B and 270 sq.yds. in favour of defendant no.1 giving no.A-20/A
respectively, be declared as illegal, invalid, unlawful and not binding
upon the plaintiff.
viii) A decree of declaration may be passed in favour of the plaintiff
whereby plaintiff be declared as co-owner to the extent of half share in
the entire property bearing no. A-20, W.H.S. Timber Market, Kirti
Nagar, New Delhi.
ix) That the Conveyance Deed dated 22.01.2010 in favour of defendant
no.2 beyond the area measuring 225 sq.yds. and/or to be extent of 45
sq.yds. of the property be declared as illegal and invalid and
consequently the sale deed dated 03.07.2010 beyond the area of 225
sq.yds. as regard 45 sq.yds. of the property of the plaintiff in respect of
the property bearing no. A- 20, W.H.S. Timber Market, Kirti Nagar, New
Delhi, be declared null and void and not binding upon the plaintiff.
x) A decree of partition may be passed in respect of the property No.A-
20, W.H.S. Timber Market, Kirti Nagar, New Delhi measuring 450
sq.yds. whereby the half share of the plaintiff may be ordered to be
adjudicated upon and determine in accordance with law pursuant to the
preliminary decree of partition and a final decree may be passed
whereby the property bearing no. A-20, W.H.S. Timber Market, Kirti
Nagar, New Delhi measuring 450 sq.yds. be divided by metes and bounds
and separated half share of property measuring 225 sq.yds. may be
allocated to the plaintiff alongwith the possession.”
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By:SONIA THAPLIYAL
Signing Date:24.03.2025
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13. Learned Trial Court, while rejecting the amendment, observed that
the abovesaid application had been moved, when the case was pending for
final arguments and instead of, advancing the final arguments, the plaintiff
had filed the abovesaid application whereby he, primarily, wanted to
incorporate certain prayers and certain events relating to order dated
29.08.2007 passed by Hon’ble Lieutenant Governor of Delhi and, inter alia ,
wanted to incorporate the relief related to partition by metes and bounds
with respect to the Kirti Nagar property.
14. After considering the legal principles, which any Court is always
required to keep in mind while dealing with any such application seeking
amendment in the pleadings, learned Trial Court dismissed the application
while observing as under:-
“(14) Applying the settled principles of law to the facts of present case,
at the very Outset I may note that it is an admitted case of the plaintiff
that application has now been filed on 17.8.2015 when the case was
listed for final arguments. The perusal of the record shows that the first
time the case was listed for final arguments on 24.1.2015 by the order of
Ld. Predecessor of this Court and now it is in the month of August that
after the case has been received by this court by way of transfer and was
listed for filing of the written memorandum of arguments, that this
application has been filed by the plaintiff at this belated stage when the
trial is virtually concluding.
(15) Secondly it is also an admitted fact that the order of the Hon'ble Lt.
Governor, Delhi, was of the year 2007 i.e. dated 29.8.2007 which the
applicant/plaintiff is seeking to challenge in the month of August 2015 by
seeking to bring the same on record vide this application for
amendments. No explanation is forthcoming as to why the
applicant/plaintiff has waited for almost eight years to file the present
application for seeking to bring this on record of this court if it was
relevant.
(16) Thirdly it is submitted by Ld. Counsel for the defendant and not
denied by the Ld. Counsel for the applicant / plaintiff that this order of
Hon'ble Lt. Governor, Delhi, dated 29.8.2007 had already been agitated
previously in WP (C) No. 7671/2007 which was dismissed by the
Hon'ble Delhi High Court vide detailed order dated 5.8.2008 (Ex.
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PW1/D5X18) which was further challenged by the plaintiff before the
Hon'ble Division Bench in LPA No. 740/08 and was dismissed vide
order dated 1.12.2008 (EX.PW1/D5X19) against which SLP No.
2632/09 was filed which was dismissed vide order dated 19.10.2009
(Ex.PW 1/8). All these orders and judicial proceedings form a part of
judicial record before this court but for the reasons best known to the
plaintiff, the fact regarding these judicial proceedings do not find a
mention in the present application seeking amendments, which appears
to be deliberate.
(17) Fourthly in so far as the proposed amendments in Para 24 E to H
are concerned, as pointed out by the Ld. Counsel for the defendant, the
said facts already find incorporated in the plaint and hence the necessity
of re-agitating the same by way of the proposed amendments by re-
wording the same, does not arise. The proposed Paragraph No. 24 E is
already part of pleadings in the Plaint and its contents are incorporated
in Para 6 ; the contents of proposed Paragraph No. 24 H are already a
part of existing Para 20 of the Plaint and contents of proposed
Paragraph No. 24 I are already part of existing Para 20 of the Plaint .
The remaining proposed paragraphs are simply a challenge to the order
of the Hon'ble Lt. Governor, Delhi, dated 29.8.2007 and any declaration
upon this order as regards its legality should have been made within the
period of limitation, which has not been done.
(18) Lastly I am informed that by way of the impugned orders which is
now proposed to be challenged, the plaintiff had exhausted all his legal
remedies in respect of the same in the year 2010, I fail to understand as
to why the same are being agitated now in this application under Order 6
Rule 17 CPC.
(19) It is writ large from the aforesaid discussions that not only has the
plaintiff failed to place before this court the circumstances showing that
inspite of his due diligence, he could not raise the matter before the
Commencement of trial in the present suit which was filed in the year
2005 but also failed to explain and justify as to how the proposed
amendments are necessary for determining the real question of
controversies between the parties and that too after the plaintiff had
exhausted the other legal remedies available to him and having already
challenged the order of the Hon'ble Lt. Governor, Delhi, dated 29.8.2007
by way of which the suit property had been sub-divided between the
plaintiff and the defendant no. 1 in Writ Jurisdiction. Here I may also
observe that the directions of the Hon'ble Supreme Court in the SLP are
very clear. While dismissing the SLP, it was observed that the order of
the Hon'ble High Court and Hon'ble Supreme Court will not come in the
way of the present suit but it does not imply that the plaintiff can be
permitted to re-open the entire issue which had already been dealt with
considered and adjudicated upon by the courts of competent jurisdiction,
so as to frustrate the earlier proceedings. There has to be a finality to the
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Signing Date:24.03.2025
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judicial proceedings and merely by playing with the words the plaintiff
cannot be permitted to continue with the litigation endlessly in the
manner in which it is sought to be done.
(20) In this background, I find no merits in the application under Order
VI Rule 17 CPC filed on behalf of the plaintiff. The same is hereby
dismissed. Only two weeks time is being granted to the plaintiff to now
place on record the detailed issue wise written memorandum of
arguments with advance copy to the counsel for defendant and soft copy
to the court. Case be listed for oral arguments thereafter on 24.11.2015 .”
15. Sh. Madan Lal Sharma, learned counsel for the petitioner, in his usual
humble and modest style, submits that there is no new cause of action which
is being sought to be introduced by the proposed amendment. He submits
that all the material facts are, virtually, on record already and it was on
account of the naive drafting and inadvertent negligence on the part of the
then counsel, that certain prayers, imperative in nature, could not be
incorporated. He submits that by incorporating the above said prayers, the
nature of the suit is not going to be changed, even a bit. So much so,
according to him, there is no requirement of even leading any additional
evidence or, for that matter, of modifying or adding any additional issue and
the learned Trial Court, on the basis of the evidence already led before it,
can pass appropriate orders in terms of proposed prayers.
16. He, in all fairness, does admit that petitioner should have been careful
in the first instance but relying upon Pirgonda Hongonda Patil vs. Kalgonda
Shidgonda Patil : AIR 1957 SC 363, Life Insurance Corporation of India vs.
Sanjeev Builders Private Limited: (2022) 16 SCC 1 , Vineet Kumar vs.
Mangal Sain Wadhera: (1984) 3 SCC 352, Sehdev Seth vs. Smt. Vidyawati
Seth and Another, 1974 SCC OnLine Del 13, Nanda Moharana vs.
Lakshman Moharana and Others: 1972 SCC OnLine Ori 83, B.K. Narayana
Pillai vs. Parameswaran Pillai and Another, (2000) 1 SCC 712, Surender
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Kumar Sharma vs. Makhan Singh: (2009) 10 SCC 626, Mahila Ramkali
Devi and Others vs. Nandram (D) Thr. Lrs. & Others.: (2015) 13 SCC 132
and Jai Ram Manohar Lal vs. National Building Material Supply: (1969) 1
SCC 869, it has been supplemented that mere delay in seeking amendment
would not be a ground to decline amendment when such amendment is, even
otherwise, necessary for deciding the real controversy between the parties.
He also submits that a party cannot be penalized for negligence or inaction
on the part of previous counsel. He also submits that amendment can be
disallowed if it has the potential of changing the cause of action or nature of
case but in the case in hand, the amendment does not constitute addition of
any new cause of action and, therefore, learned Trial Court should not have
disallowed the amendment.
17. It is also asserted that there is nothing which may indicate that any
kind of prejudice to opposite side by the proposed amendment. He echoes
that, admittedly, there was no one to prevent plaintiff to make appropriate
request at the earliest but since all the facts, germane to decide the
controversy in question, have already been duly highlighted in the plaint
itself, mere addition of few prayers would not cause any kind of prejudice to
the respondents.
18. All such contentions have been refuted by Sh. Sunil Dalal, learned
Senior Counsel for respondent No.5, who has purchased the property from
defendant 3 Kuldeep Kaur. It may be reiterated that the area which was
under the occupation of original defendant No.1 i.e. Sh. Malik Chand
Grover was, allegedly, transferred by him in favour of Smt. Kuldeep Kaur
(original defendant No.2) and, thereafter, in favour of M/s R.R. Builders &
Furnishers Pvt. Ltd. (defendant No.5).
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Signing Date:24.03.2025
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19. Though DDA is duly represented and has contested the present
petition but no one appeared on behalf of successor-in-interest of Sh. Malik
Chand Grover (respondent No.1 herein) or, for that matter, from the side of
Smt. Kuldeep Kaur (respondent No.2 herein)
20. Sh. Sunil Dalal, learned Senior Counsel for respondent No.5, asserts
that there is no substance in the petition and that the learned Trial Court has
given cogent reasons while dismissing the application. Contending that there
is nothing new which has been pleaded and since all the facts were well
within the knowledge of plaintiff, the petition should be dismissed.
21. It is also submitted by him that plaintiff and defendant No.1, the two
brothers, were earlier having a 500 sq. yds. plot in Motia Khan, Delhi which
was, admittedly, in their respective occupation in the proportion of 200 and
300 sq. yds. They applied for a plot under the Relocation Scheme of DDA
and were allotted a 450 sq. yds. i.e. Plot No. A-20, W.H.S., Timber Block,
Kirti Nagar, New Delhi in the same ratio i.e. 2:3 i.e. 180:270 sq. yds. They
made construction over their respective portions and were occupying such
portions, ever since. On 23.02.2005, defendant No.1 sold his 270 sq. yards
to defendant No.2 and handed over possession to him. The property was
even converted to freehold and, eventually, vide registered sale deed dated
30.07.2010, defendant No.2 transferred the same in favour of the respondent
No.5 herein. He also argues that by virtue of an administrative Order passed
by the Hon’ble Lieutenant Governor of Delhi, sub-division of the plots,
pursuant to which the plots were renamed 20A and 20B admeasuring 270
and 180 sq. yds. respectively, was approved. Such Order was challenged by
the Petitioner in W.P. No. 7671 of 2007 which was dismissed vide order
dated 05.08.2008. Thereafter, LPA was filed which was dismissed vide
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order dated 01.12.2008 and, then, even the SLP filed by the plaintiff was
dismissed on 19.10.2009. It is contended that all these facts were already in
the knowledge of the plaintiff and he did not care to move any application
all these years and, therefore, he cannot be given any indulgence.
22. Though, the court should be, generally, liberal in approach and if
proposed amendment seems necessary to decide real disputes and
controversy between the parties, it can be allowed even if there is delay in
moving such application. In LIC v. Sanjeev Builders (P) Ltd.: 2022 SCC
OnLine SC 1128 , it has been observed that where amendment would enable
the court to pin-pointedly consider the dispute and would aid in rendering a
more satisfactory decision, the request for amendment should be allowed. It
also lays down that where amendment is only with respect to the relief in the
plaint and is predicated on facts which are already pleaded, ordinarily, the
amendment should be allowed. However, at the same time, there cannot be
any rigid and straightjacket formula as to when such request is to be granted
and when rejected. It all depends on the factual matrix of any given case
and, therefore, such request has to be understood after properly appreciating
the facts, particularly when the trial is already over and the proposed
amendment is based on the facts which were already within the knowledge
of any such applicant, even before the issues were framed.
23. After careful perusal of the matter, I am of the opinion that there is no
illegality or perversity in the order which may necessitate interference of any
kind. It also cannot be said that there would be any serious prejudice to
plaintiff, if amendment is not permitted.
24. Prime grievance is with respect to the fact that the plot in question
was jointly owned and the said two brothers were joint owners and,
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therefore, the other brother could not have sold the same.
25. Issues were framed on 30.07.2010, much after the dismissal of said
SLP and, apparently, it is too late to seek amendment. Moreover, even as per
plaintiff, all the facts are already on record and the above orders, including
the dismissal of SLP, are in the knowledge of the learned Trial Court and,
these would be, for sure, considered by the court when hearing final
arguments. Needless to say, the court can, if required, mould the relief
appropriately, in a given case on existence of certain conditions, in case it
returns any finding in favour of the plaintiff. The principle of moulding of
relief has though evolved with the objective of doing substantial justice,
nonetheless, at such a belated stage, this court shall not permit the clock to
move backwards, particularly when plaintiff himself is found to be, least
bothered.
26. Merely because, while dismissing said SLP, Hon’ble Supreme Court
had clarified that such orders would not come in way of petitioner in his
pending suit, plaintiff cannot seek to amend, as a matter of right. Moreover,
if at all, he wanted some amendment, he should have sought for the same,
immediately. As noted, issues were framed later and since trial herein, not
only commenced but has also been concluded, the request of amendment
lacks any merit. The court should, generally speaking, not come to rescue of
a party who is in deep slumber.
27. The reasons recorded by learned Trial Court are well-merited and
there is no reason to come to a different conclusion, more so when the ambit
and scope of interference in supervisory jurisdiction is circumscribed.
Moreover, evidently, the endeavour of the petitioner is to bring on record a
different cause of action. He seeks nullity of those orders which have
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already attained finality, albeit , the decision of the suit has to be while
keeping in mind the specific observations given by Hon’ble Supreme Court
in said SLP. However, such observation would not give any handle to
plaintiff to also seek a decree of partition and thus, the proposed
amendments in prayer, to a very large extent, amount to introduction of new
cause of action. It can, thus, certainly prejudice his adversary, being highly
belated.
28. As an upshot of the foregoing discussion, the petition stands
dismissed. All pending applications also stand disposed of in aforesaid
terms.
29. It is, however, clarified that the observations made in this order are,
purely, in relation to assess whether amendment is to be allowed or not and
since this Court has not even touched the evidence led by the parties, the
learned Trial Court shall not feel prejudiced by any observation contained
herein.
(MANOJ JAIN)
JUDGE
MARCH 19, 2025/st/SS
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Signing Date:24.03.2025
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