Mrs. Abha Chhabra And Anr. vs Mr. V.K. Jetly And Ors. on 20 September, 2005

Delhi High Court
Mrs. Abha Chhabra And Anr. vs Mr. V.K. Jetly And Ors. on 20 September, 2005
Author: A Kumar
Bench: A Kumar

JUDGMENT

Anil Kumar, J.

1. By this application for amendment under Order 6 Rule 17 of the Code of Civil Procedure, the plaintiff, who is the grand son of Shri B.B.S. Jetly, son of a deceased daughter, Late Smt. Asha Bali, seeks to incorporate the relief of declaration that the Lease deed dated 20.11.1967 executed by Government Servant Co-operative Housing Building Society, defendant No. 7, in favor of son of Shri B.B.S. Jetly, Shri V.K. Jetly, defendant No. 1 was null and void and other consequential amendments.

2. Some brief facts to appreciate the controversy are that Asha Chhabra (now defendant No. 8) one of the daughter of Late Shri B.B.S Jetly, along with one grand son Shri Rajat Bali (son of a deceased daughter, Smt. Asha Bali), applicant, filed the above noted suit for partition, possession, recovery of mesne profits/damages and for rendition of accounts in respect of property No. 1/3 Shanti Path Extension, New Delhi contending inter-alia that the property was owned by Shri B.B.S Jetly and after his demise the plaintiff No. 1 (now defendant No. 8) along with defendants No. 1 to 4 have 1/6th share each while plaintiff No. 2/applicant and the defendants No. 5 and 6 are co-owners to the extent of each having 1/18 share in the suit property.

3. Though the suit for partition was based on the ownership of the property of Shri B.B.S. Jetly, however, a copy of the lease deed showing the ownership of the maternal grand father of the applicant/plaintiff was not filed with the plaint, rather it was prayed that the defendant No. 1, Shri V.K. Jetly should file the lease deed.

4. After defendant No. 1 filed a copy of Lease Deed, which was in his favor and not in favor of Late Shri B.B.S. Jetly, the daughter of Late Shri B.B.S. Jetly, Smt. Asha Chhabra, plaintiff No. 1 (now defendant No. 8) filed an affidavit that she does not want to pursue the matter and her name was deleted as plaintiff No. 1 vide order dated 11th May, 2000, however, thereafter she was again imp leaded as defendant No. 8. All other daughters, party to the suit, had filed written statement expressly stating that they do not have any interest in the property and the rights exclusively belonged to Defendant No. 1. Defendant No. 1, Shri V.K. Jetly also died, during the pendency of the case and his legal representatives were substituted.

5. Applicant/plaintiff filed the present application under Order VI Rule 17 of the Code of Civil Procedure contending inter-alia that after the written statement was filed by the defendant No. 1 in 1998, he came to know about the fraud played by defendant No. 1 on defendant No. 7, society, by which the defendant No. 1 got the lease deed of the property in his name instead of Late Shri B.B.S. Jetly. It was claimed that since the fraud came to the notice of plaintiff in 1998, he could not claim the relief of declaration earlier and the application for amendment is filed at the earliest. The applicant claimed that the amendment is bona fide and is sought with a view to get the entire controversy fully and finally adjudicated. To contend that the relief claimed is within time, the plaintiff relied on Article 56 of the Limitation Act, 1958. The plaintiff also relied on , India Export House Pvt. Ltd. v. Orient Enterprises and Ors. and (2001)2 SCC 472, Raghu Tilak D. John v. S. Rayappan and Ors. The applicant contended that the plea of limitation, as raised by the defendant No. 1, against the amendment in his case will be a mixed question of fact and law and consequently at the stage of considering the application for amendment, amendment cannot be denied on the ground that it is barred by time. The plaintiff/applicant came to know about the fraud and forgery committed by defendant number No. 1 when he received a copy of the written statement filed by defendant No. 1 on 8th December 1998 and consequently the time began to run from that date. Plaintiff contended that consequently the application for amendment is within time and amendment sought is necessary for the determination of real controversies between the parties and should be allowed as there is no other impediment against allowing the amendment.

6. Per Contra, the defendant contended that the application for amendment, if allowed by this Hon’ble Court would result in enabling the plaintiffs to seek the relief which is time barred. Relying on section 3 of the Transfer of Property Act, it was contended that plaintiff had notice of the lease deed which is a registered document. The mother of the plaintiff did not claim any right nor claimed that the lease deed was a result of fraud and forgery. The plaintiff willfully abstained from an inquire or search which he ought to have made or on account of gross negligence on his part, otherwise he would have known about the lease deed. As per section 17 of Registration Act, the lease for more than one year required compulsory registration therefore ease, which was executed in favor of defendant No. 1 was compulsorily registerable. The counsel for the defendant No. 1 also relied on section 17 of the Limitation act. Under this section the limitation does not begun to run provided the applicant could no discover the fraud despite due diligence on his part and thus contended lack of diligence apparent on the part of the applicant/plaintiff.

7. The counsel for defendant No. 1 contended that the lease deed in question was executed and registered in favor of defendant No. 1 on 28.12.1967 by Shri B.B.S Jetly as attorney on his behalf, however, it was not recorded that Shri B.B.S Jetly was acting as an attorney, inadvertently by the Registrar. Reliance has been placed on a photocopy of a power of attorney dated 26.10.1967 issued by Shri V.K. Jetly authorizing his father to act as an attorney. During the arguments, attention was drawn to the fact that power of attorney executed by Defendant No. 1 had been attested by Shri. R.C. Sharma, Accounts officer, Land and Building Department who is also a witness to the Lease Deed dated 20.11.1967. To contradict the pleas of the plaintiff, reliance has also been placed on the Mortgage Deed dated 17.8.1971 executed by Defendant No. 1. The learned counsel contended that the plaintiff deemed to had the notice of Lease Deed as well as other registered documents and therefore, for the lease deed registered on 20.11.1997, plea of the applicant that it was obtained by forgery and fraud, is ex-facie barred by time and the plaintiff cannot be allowed to take such a plea by amending his plaint. The counsel also sought presumption under Section 90 of the Evidence Act in respect of lease deed dated 20.11.1967 being more than thirty years old. Defendant No. 1 relied on , Pallav Seth v. Custodian and Ors. , Satindra Nath Choudhury v. Jatindra Nath; , Vishhwambhar and Ors. v. Laxminarayn and Anr. and , Ram Niwas v. Smt. Bano and Ors.

8. I have heard the learned counsel for the parties and perused and considered the application and the reply. This is no more res integra that the purpose and object of Order 6 Rule 17 is to allow either party to alter or amend his pleading in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down in various precedents. It is also true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the Courts while deciding such prayer should not adopt a hyper technical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation. It has also been held that pretrial amendments are allowed more liberally than those which are sought to be made after the commencement of trial or after conclusion thereof. Mere delay usually cannot be a ground for refusing a prayer for amendment because merits of amendment sought to be incorporated by way of amendments are not to be judged at the stage of allowing prayer for amendment.

9. The learned counsel for defendant has greatly emphasized on willful abstention from an inquiry or search which ought to have been made by the plaintiff regarding the lease deed which is sought to be challenged now by way of amendment to the plaint before filing the suit for partition or even after the demise of her mother, daughter of late Shri B.B.S. Jetly, as the alleged rights devolved upon plaintiff on the demise of her mother.

10. The submissions of the counsel for defendant No. 1 seems to be self-contradictory. Had the plaintiff made an inquiry before filing the suit and has taken a plea of declaration that the lease deed is void on account of fraud and forgery, the plea could not be rejected without determining whether the plaintiff willfully abstained earlier from an inquiry or search during the lifetime of her mother or after the demise of her mother. Under section 17 of the Limitation Act an exception has been carved out against running of limitation in case of discovery of fraud which could not be discovered despite due diligence on the part of a person. Whether a person acted with due diligence or not is also a question of fact which is to be determined on the basis of the pleadings and evidence of the parties. Absence of due diligence or negligence cannot be determined or inferred on the basis of averments only made by the parties in the facts and circumstances of the present case.

11. The learned counsel for defendant No. 1 has also placed heavy reliance on statement of account of Shri B.B.S Jetly; letter dated 3rd October 1969 from the Society to the Engineering supervisor regarding water connections; letter dated nil from Mr. B.B.S. Jetly to the Secretary of the Society; nothings from the files for the period 21st May, 1971 to 14th June, 1977 and letter dated 25th September 1966 from Shri B.P. Mittal to Mr. B.B.S. Jetly besides other documents some of which have not been admitted by the plaintiff to show that lease deed is not a result of any fraud. The question will be whether the plea that the claim of the plaintiff is barred by time, can be determined on the basis of these documents even before plaintiff is allowed to amend is plaint and take the plea about the lease deed being void on account of alleged fraud on the part of defendant No. 1.

12. It seems that the basis of arguments of the counsel for the defendant No. 1 is that the plea of the defendant that the claim of the plaintiff is barred by time, can be conclusively inferred from the facts pleaded by both the parties. However taking into consideration all the facts pleaded, even before the plaintiff is allowed to take the plea of declaration, it cannot be said or inferred that his plea will be barred by time in the present facts and circumstances, especially when the plaintiff is contending that he came to know about the fraud after the written statement was filed by defendant No. 1. Lack of due diligence or negligence on the part of defendant No. 1 is to be established and in my opinion can not be inferred conclusively on the basis of leadings only. Without allowing the plaintiff to raise the plea, the defendant No. 1 cannot contend that there is lack of due diligence and negligence on the part of plaintiff/applicant.

13. The precedents relied on by the defendant are clearly distinguishable. In , Virendra Kumar Goel v. Kusum Bhuwania, the plaintiff had claimed declaration and injunction only on the basis of the agreement for purchase after its breach. Subsequently he claimed amendment seeking claim of specific performance of the contract after it was breached, after the period of limitation had expired for specific performance, as for the same cause of action, he had already sought relief for declaration and injunction. After expiry of period of limitation, the amendment thus sought for the relief of specific performance which was ex facie barred by time, was not allowed. Similarly, , Vishwambhar and Ors. v. Laxminarayan (Dead) though LRs. and Anr. it was held that the amendment though properly made cannot relate back to the date of filing of the suit and cure the defect of limitation. Where the amendment changes the basis of the suit itself, the suit would be taken to have been filed on the date of amendment for the purpose of limitation. In , Ganesh Trading Co. v. Moji Ram it was held that if the plaintiff seeks to alter the cause of action itself and to introduce indirectly through an amendment of his pleadings an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which the suit is pending of any right which may have accrued in its favor due to lapse of time. At the same time it was observed that mere failure to set out an essential fact does not by itself constitute a new cause of action. Cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove so that he may succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be defective.

14. For amendment in the pleadings, reliance can also be placed , B.K.N. Pillai v. P. Pillai; , Estralla Rubber v. Dass Estate Pvt. Ltd.; , Lt. Col. Gaj Singh Yadav v. Satish Chander Yadav and , Kanwal Kishore Manchanda v. Ms. Raksha Arora and Ors. In B.K.N. Pillai (supra), it was held that the application for amendment should not be rejected, especially when the party opposing amendment can be compensated by lost and the application does not suffer from any delay. Similarly, in M/s. Estralla Rubber (supra), the apex Court held that it is open for the defendant to take an alternative or additional defense and merely because there was delay in making an amendment application will not cause any prejudice or shall take away any right accrued and in such circumstances the amendment should not be rejected. A single Judge of this Court in Kanwal Kishore (supra) had held that the object of allowing the amendment in the averments of the parties is to iron out and solve the tangle and not to complicate them or to leave certain points for decision in future litigation and the endeavor of the court should always be to settle the matter by taking into consideration all the facts, especially in the matters pertaining to partition between the brothers and sisters. In Lt. Col. Gaj Singh Yadav (supra), these principles for amendment of the written statement were noted and it was held that those amendment which do not constitute addition of a new cause of action or raises different case but amounts merely to a different or additional approach to the same facts should be allowed which amendments are necessary for determination of real controversies between the parties and are just for decision of the matter.

15. The plaintiff has filed the suit for partition, possession, recovery of mesne profits/damages and for rendition of accounts on the ground that the property was owned by Sh. B.B.S. Jetly and after his demise the rights in the property devolved upon his legal heirs including mother of the plaintiff who is also dead therefore, rights have devolved upon him. The contention of the plaintiff is that he came to know about lease deed executed by defendant No. 7 in favor of Late Sh. V.K. Jaitley only after written statement was filed on behalf of defendant No. 1. The plaintiff is seeking partition of the property and in case he has come to know that the lease was not in favor of his grandfather but his maternal uncle which he alleges to be a result of a played by ate Shri V.K. Jetly on the defendant No. 7, he will be entitled to claim declaration that the lease deed was executed in favor of his maternal uncle on account of fraud played in the facts and circumstances as alleged by the plaintiff/applicant. As far as the plea of the defendant No. 1 that the claim of declaration regarding lease deed executed by defendant No. 7 in favor of Sh. V.K. Jetly is time barred, it is to be adjudicated as it will depend on whether the plaintiff was negligent and there was lack of due diligence on his part in ascertaining about the lease deed executed by the Society defendant No. 7 in favor of Sh. V.K. Jetly. Whether the plaintiff could not have discovered about the registered document and should have made enquiries before filing the suit and would be deemed to have knowledge from the date of registration and the execution of lease deed in favor of Shri V.K. Jetly could be discovered by him with due diligence and without being negligent, in my opinion will require adjudication and cannot be ascertained conclusively, only on the basis of the proposed pleadings of the parties and the documents some of which are not admitted by the plaintiff. Merely on the basis of Section 3 of Transfer of Property Act, Section 17 of the Limitation Act and Section 17 of the Registration Act it cannot be held conclusively at this stage that the plea of the plaintiff is barred by time. This plea would require adjudication and consequently on the ground that the claim of the plaintiff is barred by time, amendment cannot be denied. The plaintiff, however, will have to establish lack of negligence and due diligence on his part.

16. Considering all the facts and in totality of circumstances and for the reasons stated hereinbefore, I am of the opinion, that the amendment sought by the plaintiff shall be relevant for determination of controversies between the parties and considering that issues have not been framed in the matter nor the proposed amendment tantamount to withdrawal of any admission made by the plaintiff and the defendant can be compensated, the amendment of plaint should be allowed to the plaintiff in terms of prayer made in the application.

15. The application of the plaintiff under Order VI Rule 17 read with Section 151 of Code of Civil Procedure is, therefore allowed, subject to payment of a cost of Rs. 20,000/- to the Defendant No. 1.

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