* 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