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Delhi High Court
Sh. Vijay Kumar Bhan vs Sh. Manoj Kumar & Ors. on 19 May, 2011
Author: Valmiki J. Mehta
*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM(M) No. 155/2011
%                                                       May 19, 2011

SH. VIJAY KUMAR BHAN                                   ...... Petitioner
                          Through:    Ms. Sangeeta Jain, Advocate

                          VERSUS

SH. MANOJ KUMAR & ORS.                                 ...... Respondents
                    Through:          Mr. Javed Ahmad, Advocate with Mr.
                                      Eram Khan, Advocate

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the Reporters of local papers may be
         allowed to see the judgment?

    2.   To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

Caveat No.123/2011 in C.M.(M) No.155/2011

Counsel for the caveator has entered appearance and thus the

caveat stands discharged.

C.M. No.2952/2011 (exemption) in C.M.(M) No.155/2011

Exemption allowed subject to just exceptions.

Application stands disposed of.

+ C.M.(M) No.155/2011 and C.M. Nos.2951/2011 (stay)

1. The challenge by means of this petition under Article 227 of

the Constitution of India, is to the impugned order dated 3.12.2010 which

has dismissed the application of the petitioner/plaintiff under Order 6 Rule

CM(M) No. 155/2011 Page 1 of 8
17 of Code of Civil Procedure, 1908 (CPC) by which the petitioner was

seeking to add in para 4 of the plaint certain averments with respect to

four documents dated 3.10.1988 i.e. an agreement to sell, affidavit, Will

and a general power of attorney.

2. The disputes in the present case pertain to the property WZ-

123 (D-58), Raj Nagar, Part-II, Palam Colony, New Delhi admeasuring 100

sq. yards. The plaintiff put up a case in the plaint that this property was

purchased jointly by the petitioner/plaintiff/son alongwith his father Sh.

Govind Ram Bhan. After making this averment in para 4 of the plaint the

plaintiff/petitioner in support of the averment with respect to the joint

ownership with his father also relied upon documents being agreement to

sell/receipt dated 3.9.1988, registered receipt dated 3.10.1988 and

general power of attorney dated 28.12.1988 in favour of the father Sh.

Govind Ram Bhan.

3. The plaintiff in the original plaint claimed that the

defendant/brother/respondent No.1 was in illegal possession of the

property and therefore the relief of partition and possession was claimed

in the suit. The case set up in the plaint was therefore of ownership of

50% of the property plus also a share from the undivided interest of the

father late Sh. Govind Ram Bhan as one of his legal heirs.

4. In the suit, the petitioner/plaintiff had earlier filed an

application under Order 7 Rule 14 CPC to put on record the aforesaid four

additional documents dated 3.10.1988 and which application was

dismissed by the trial Court.

CM(M) No. 155/2011 Page 2 of 8

5. The petitioner challenged that order dismissing the application

under Order 7 Rule 14 CPC in this Court and the petition being C.M.(M)

No.220/2010 was dismissed by a learned Single Judge of this Court dated

3.5.2010, subject to certain observations. This Court vide its order dated

3.5.2010 sustained the order of the trial Court dismissing the application

under Order 7 Rule 14 CPC by observing that since there was no averment

in the pleadings with respect to the four additional documents dated

3.10.1988 which were sought to be produced, the application for

production of such documents could not be allowed. The learned Single

Judge of this Court, however, by the order dated 3.5.2010 deleted the

findings/observations of the trial Court with respect to

manipulation/forgery of the four documents dated 3.10.1988.

6. After passing of the said order dated 3.5.2010 the petitioner

moved an application under Order 6 Rule 17 CPC before the trial Court

and which has been dismissed by the impugned order. By the application

the petitioner sought to amend para 4 of the plaint to include reference to

the four additional documents dated 3.10.1988. The trial Court has

dismissed the application on the ground that as per the amended

provision of Order 6 Rule 17 CPC amendment cannot be allowed after

commencement of trial and also considering the fact that no valid

explanation was given by the petitioner for how adding the facts which

were sought to be added.

7. A resume of the above facts shows the following:

(i) The petitioner/plaintiff in the plaint originally laid out a case of

CM(M) No. 155/2011 Page 3 of 8
joint purchase, and therefore joint ownership, of the suit property with his

father. For this purpose reliance was placed upon three documents dated

3.9.1988, 3.10.1988 and 28.12.1988. The plaint however makes it quite

clear that what was pleaded was joint ownership of property with the

father on account of having jointly purchased the same.

(ii) When the earlier application under Order 7 Rule 14 CPC was

dismissed by the trial Court, and which order was upheld by the High

Court in its order dated 3.5.2010, para 14 of the High Court order had

observed that the documents are not allowed to be produced because

there is an absence of specific averment in the plaint with respect to the

additional documents which are sought to be produced.

(iii) The learned Single Judge of this Court vide its order dated

3.5.2010 set aside the findings of the trial Court by which it was held that

documents were not genuine/fabricated/forged inasmuch as such an issue

could not have been decided in a summary manner by means of the

application and replies supported only by affidavits.

8. In my opinion, the trial Court has fallen into an error in

dismissing the application for amendment. The law with regard to

amendment is well-settled that merits of the matter are not to be looked

into at the time of allowing of the amendment. By an amendment only

the plea/pleadings is put forth, and it is not as if such plea/pleadings is

accepted as correct. Once an amendment application is filed, the opposite

party will have an opportunity not only to deny such pleadings and to

effectively reply the same but also thereafter to disprove the case as set

CM(M) No. 155/2011 Page 4 of 8
up in the amended pleadings by leading its evidence. To disallow the

amendment application by holding on merits that documents are forged

and fabricated would be to pre-judge the issue and therefore the learned

Single Judge of this Court on 3.5.2010 rightly set aside the findings of the

trial Court which held that the four documents dated 3.10.1988 cannot be

brought into evidence because they are forged/fabricated/manipulated.

9. Learned counsel for the respondents very vehemently

opposed the petition and raised three basic points:-

(i) The trial Court has rightly relied upon various Supreme Court

judgments which show that amendment ordinarily should not be allowed

after commencement of trial and trial had commenced in the present case

inasmuch as the petitioner had already filed his affidavit by way of

evidence.

(ii) Allowing of the amendment application would mean

withdrawal of admission by the petitioner/plaintiff.

(iii) Allowing of the amendment application would be to indirectly

set aside the order of learned Single Judge of this Court dated 3.5.2010

passed in C.M.(M) No.220/2010 because the very documents which were

not allowed to be produced would now be allowed to be produced.

10. In my opinion, all the contentions as raised by the counsel for

the respondent are misconceived and are liable to be rejected. Firstly, the

trial Court while relying upon the Supreme Court judgments that

amendment should not be allowed after trial had commenced has also

observed that however once necessary explanation is given then in

CM(M) No. 155/2011 Page 5 of 8
certain facts and circumstances, amendment can be allowed. In the

present case the petitioner sought amendment of the plaint on the stated

facts that knowledge of four documents dated 3.10.1988 came to his

knowledge much after filing of the suit in the year 2006 i.e. only in 2008.

Surely, this was a subsequent fact, and which if correct, and with respect

to which I am not entitled to give a finding for the present that it is not

correct, are good enough circumstances so as to bring the case within

exception to the general rule of disallowing of the amendment after

commencement of trial. Once there are sufficient reasons given, and in

this case sufficient reasons are those of coming to be know the existence

of the documents after the commencement of the trial, in my opinion, is a

just and sufficient ground to allow the amendment. To disallow the

amendment would be to pre judge the case by holding on merits that

what the petitioner/plaintiff said about discovery of documents in the year

2008 is false. I may hasten to add that it is still open to the respondent

No.1/defendant No.1 during course of trial to show that the

petitioner/plaintiff has been telling lies and that not only the documents

are forged/fabricated/manipulated but also the story put up of the

discovery in the year 2008 is not correct because such story was put up to

bring on record the forged/manipulated documents. However, this is an

issue which will be considered at the stage of final judgment after trial i.e.

evidence is led by both the parties and the respective witnesses have

been cross-examined. At this stage, it cannot be said that the explanation

as put forth by the petitioner should be summarily rejected.

CM(M) No. 155/2011 Page 6 of 8

11. Secondly, in my opinion, the stand of the learned counsel for

the respondent No.1 that by allowing of the amendment, admission will be

withdrawn, is bereft of reasoning. This is because the original case was of

joint ownership through joint purchase by the petitioner with its father and

today also after amendment, the case will remain of joint ownership on

account of joint purchase of the property by the petitioner with his father.

Only what has been done is that documents are being filed in support of

the pleadings. Surely, there is a difference between pleading and proof.

The stage of proof comes subsequently to the stage of pleadings.

12. So far as the third argument that allowing of the amendment

would mean to indirectly set aside the order dated 3.5.2010 passed in

C.M.(M) No.220/2010, I need only to reproduce only first three lines of

para 14 of the order dated 3.5.2010 and which read as under:-

“14. Consequently, this Court is of the view that in the
absence of a specific averment in the plaint in relation to the
GPA dated 3rd October 1988, the agreement to sell dated 3rd
October 1988, the Will dated 3rd October 1988 and the
affidavit dated 3rd October 1988, and a further averment that
they were not in the Plaintiff’s possession and were therefore
not being produced, the Plaintiff cannot be permitted to
produce those documents subsequently.

xxxxxx”

Clearly, the order dated 3.5.2010 disallowed the bringing on

record the documents because there was no such pleading. That does not

however mean that the petitioner thereafter cannot amend his pleadings

so as to bring his pleading in the line of the documents which he seeks to

produce. In my opinion, the documents which are now sought to be

produced viz the four documents dated 3.10.1988 are in fact only the

CM(M) No. 155/2011 Page 7 of 8
proof with respect to the averments of the joint ownership of the

petitioner with his father.

13. In view of the above, the petition is allowed. The impugned

order dated 3.12.2010 is set aside. The amendment application dated

2.6.2010 which was filed by the petitioner to amend para 4 of the original

plaint, and which amended para is contained in para 22 of such

application is allowed. The amended plaint be now filed before the trial

Court within a period of four weeks from today inasmuch as I am informed

that the next date of hearing is 12.7.2011. Needless to say that nothing

contained in this order will amount to reflection on merits of the case of

either of the parties and trial Court will decide the suit in accordance with

law uninfluenced by any observations if any made qua merits in the

present order. The respondent No.1/defendant No.1 will also be fully

entitled to put up its own case in response and thereafter disprove the

case as set up in the amended plaint after filing its amended written

statement.

Petition and application are accordingly disposed of.

MAY 19, 2011                                     VALMIKI J. MEHTA, J.
Ne




CM(M) No. 155/2011                                               Page 8 of 8
 

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