Interim Order 10

Order Details: COPY OF ORDER
Pdf Text: Suit No 573/23 Pg 1 of 7
IN THE COURT OF AYUSH SHARMA: CIVIL JUDGE,
EAST DISTRICT, KARKARDOOMA COURTS, DELHI
Reserved on: August 20th, 2024
Pronounced on: October 3rd, 2024
SUIT NO: 573/23
IN THE MATTER OF: -
SAHABUDDIN ...PLAINTIFF
Through: Sh. Madan Thakur,
Advocate.
VERSUS
SARFUDDIN & ORS. ...DEFENDANT
Through: Sh. Imran Khan and
Ms. Kajal Singh,
Advocate for
defendant no.1 to 3.
Sh. Ashish, Advocate
for defendant no.4.
ORDER
1. The present order shall dispose of the application filed under Order
6 Rule 17 read with section 151 of Civil Procedure Code, 1908 (‘CPC’) on
behalf of plaintiff for seeking amendment in the plaint.
2. Brief facts necessary to determine the present application are:
2.1 The plaintiff claims to be the lawful owner of the property bearing
no. 8/1, JJ Colony, Khichripur, Delhi-91, measuring 25 square yards, along
with the structure built upon it, which includes the ground floor and the
first floor (hereinafter referred to as the “suit property”). The plaintiff
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Suit No 573/23 Pg 2 of 7
states that the property was originally allotted in 1976 to one Lal Chand,
who transferred it to Ramesh Chand in 1988. Ramesh Chand, in turn,
transferred the property to the plaintiff by way of a General Power of
Attorney (GPA), Agreement to Sell, Affidavit, Receipt, and Will, all dated
24.06.1988.
2.2 The plaintiff further claims that officials from BSES informed him
that he needed to obtain a commercial electricity connection for the
property since he was carrying out commercial activities. The plaintiff
requested his younger brother (defendant no. 1) to apply for a commercial
electricity connection. However, the defendant allegedly got executed
false and fabricated documents, namely a GPA, Sale Agreement,
Affidavit, Possession Letter, Receipt, and Will, all dated 01.04.2008, to
assert his claim over half of the suit property.
2.3 The plaintiff also claims that defendant no. 1 got installed an
electricity connection in his own name, which was energized on
19.11.2013. Moreover, the defendant approached a tenant, Jalauddin,
instructing him to pay the rent to the defendant, as he now claimed
ownership of half of the suit property. The plaintiff further alleges that on
18.03.2023, defendant no. 1 placed an additional lock on an already locked
door located on the eastern side of the property.
2.4 Through the present suit, the plaintiff seeks the following reliefs: A
declaration that the documents executed in the name of defendant no. 1 are
null and void; a direction to defendant no. 1 to remove the lock placed on
the door on the eastern side of the suit premises; a permanent injunction
preventing defendant no. 1 from taking forcible and unlawful possession
of the suit property; a direction against defendant no. 4 to disconnect the
electricity connection installed in the name of defendant no. 1.
2.5 In his written statement, the defendant no.1 to 3 has asserted that the
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Suit No 573/23 Pg 3 of 7
plaintiff sold half of the suit property by executing title documents for valid
consideration in favour of defendant no. 1 and subsequently handed over
vacant and peaceful possession to him. The defendant further contends
that, since the plaintiff admittedly does not possess half of the suit
property, measuring 12.5 square yards, the reliefs of declaration and
injunction cannot be granted without the plaintiff first seeking relief for
possession.
2.6 Additionally, the defendant argues that the present suit is not
maintainable before this court, as the valuation of the suit property exceeds
the court’s pecuniary jurisdiction. The defendant also points out that the
plaintiff has failed to specify the date on which he became aware of the
documents executed on 01.04.2008, thereby rendering the plaintiff’s suit
barred by limitation.
2.7 Furthermore, the defendant states that defendant no. 1 has since
sold/transferred the suit property to Ms. Phool Bano and Mrs. Munija (his
daughter and wife, respectively) on 27.02.2023, and as a result, he no
longer has any concern with the suit property.
3. In the application filed under Order VI Rule 17 of the CPC, the
plaintiff asserts that certain important dates, months, and years relating to
the cause of action for the present suit were inadvertently omitted. He
argues that these amendments are essential for effectively adjudicating the
issues in this suit. The plaintiff seeks the following amendments:
(i) Change of the subject/title of the suit from “Suit for declaration,
mandatory and permanent injunction” to “Suit for cancellation and
declaration, possession, permanent and mandatory injunction.”
(ii) Modification of paragraph 3 by adding the phrase “in year 2008”
after the word “limited” in the sixth line.
(iii) In paragraph 6, the plaintiff seeks to add the words “in January,
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Suit No 573/23 Pg 4 of 7
2023” after “Jallauddin” in the sixth line. He also wants to specify that on
10.01.2023, when he visited the suit property to demand rent from
Jallauddin, defendant no. 1 arrived and claimed he would collect the rent
as the owner of half of the property. The amended paragraph will further
state that the plaintiff was shown the documents dated 01.04.2008 by
defendant no. 1 on that same date, thus gaining knowledge of them.
(iv) Amendment of paragraph 8 to include “on 10.01.2023” in the
beginning itself.
(v) In paragraph 9, the plaintiff wishes to add that after 19.11.2013, he
visited the BSES office to inquire about the electricity connection in
defendant no. 1’s name. The BSES officials informed him about the
documents involved.
(vi) Add the word “entire” after “take the” in the second line of
paragraph 14.
(vii) Include a new paragraph, 14A, in which the plaintiff claims that
defendant no. 1, using the forged documents, locked the eastern door of
the suit property and is unlawfully claiming possession of the ground floor.
Therefore, defendant no. 1 should be ordered to hand it over.
(viii) Amendment of paragraph 17 to state that the suit is valued for the
relief of declaration, cancellation, and possession at Rs. 1,00,000/- with
appropriate court fees paid, and the relief for permanent and mandatory
injunction is valued at Rs. 130/- each, with proper court fees paid.
(ix) Modify the prayer clause by specifying the documents (GPA,
Agreement to Sell, Affidavit, Possession Letter, Receipt of money, and
Will dated 01.04.2008) for which cancellation and declaration are sought.
Addition of a new prayer clause 1A for possession of the ground floor of
the suit property. The plaintiff also seeks to amend prayer clause 2 by
seeking a permanent injunction against defendants no. 1 to 3 to prevent
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Suit No 573/23 Pg 5 of 7
dispossession or the creation of any third-party interest in the suit property.
Lastly, the plaintiff seeks to delete prayer clause 3 and renumber prayer
clauses 4 and 5 as clauses 3 and 4.
4. Sh. Thakur, the Learned Counsel for the plaintiff, argued that the
proposed amendments are essential for the proper adjudication of the
dispute in the present suit and do not alter the fundamental nature of the
case. He emphasized that the amendments merely add to the facts already
presented on record and do not introduce any new cause of action.
Furthermore, he contended that allowing the application would not cause
any significant prejudice to the defendant, and any potential inconvenience
could be addressed through the payment of costs.
5. Sh. Khan, the Learned Counsel for the defendant, argued the
following:
5.1 In 2012, the plaintiff and his sons allegedly attempted to grab the
suit property, prompting defendant no. 1 to file a police complaint dated
11.04.2012. As a result, it cannot be claimed that the plaintiff was unaware
of the documents in favour of the defendant. A copy of this complaint has
been submitted as part of the record.
5.2 The proposed amendment would fundamentally alter the nature of
the suit, as the plaintiff has sought amendments throughout the entire
plaint, including changing the subject/title of the suit. Additionally, the
plaintiff has not acknowledged the present owners of the suit property, as
disclosed by defendant no. 1 in his written statement.
5.3 The amendments appear to be an attempt to address the issue of
limitation raised by defendant no. 1 in his written statement, and therefore,
the application for amendment should not be allowed.
6. I have heard the submissions and perused the material on record.
Before addressing the rival contentions on either side, it is crucial to
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Suit No 573/23 Pg 6 of 7
examine the legal principles governing the granting or rejection of an
amendment to pleadings. It is well settled that the court must be extremely
liberal in granting the prayer for amendment, if the court is of the view that
if such amendment is not allowed, a party, who has prayed for such an
amendment, shall suffer irreparable loss and injury. It is also equally well
settled that there is no absolute rule that in every case where a relief is
barred because of limitation, amendment should not be allowed. It is
always open to the court to allow an amendment if it is of the view that
allowing of an amendment shall really sub-serve the ultimate cause of
justice and avoid further litigation.
7. The plaintiff initially filed the suit for declaration, mandatory and
permanent injunction based on the claim that the documents dated
01.04.2008 were allegedly got executed by the defendant no.1 in his favour
on the pretext of applying for commercial electricity connection with
defendant no.4/BSES. The plaintiff by way of the amendment seeks to add
specific dates and events to clarify when the cause of action for the present
suit arose. The plaintiff has indicated in the amendment application that in
January 2023, he became aware of documents dated 01.04.2008, which
were executed in favour of defendant no. 1. The defendant’s counsel
argued that the plaintiff is attempting to address issues of limitation
through this amendment. It is trite that each case must be assessed on its
specific facts and circumstances. The court finds that by way of the
amendment the plaintiff is not retracting from an earlier claim or
withdrawing from any clear admission, but rather the plaintiff is merely
adding facts to the already existing pleadings. It is not a case where the
plaintiff by way of amendment sets up a fresh cause of action which since
the institution of the suit has become time barred as for that purpose the
relevant dates for accrual of cause of action must have been specified
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Suit No 573/23 Pg 7 of 7
originally. It is trite that amendment may be justifiably allowed where it is
intended to rectify absence of material particulars in the plaint. (Life
Insurance Corporation v. Sanjeev Builders Private Ltd. & Anr. (2022)
16 SCC 1). The proposed amendment does not alter or substitute a new
cause of action on the basis of which the original lis was raised and
amounts to addition of facts to the already existing facts on record. The
Hon’ble Supreme Court in Vineet Kumar v. Mangal Sain Wadhera
(1984) 3 SCC 352, held that if prayer for amendment merely adds to the
facts already on record, the amendment would be allowed even if after the
statutory period of limitation.
8. The defendant has placed on record a police complaint of the year
2012 to argue that the suit is time-barred. As stated earlier, the present
application pertains to amendment and the plaintiff has merely inserted the
material facts to the facts already on record. The plaintiff has not resiled
from any previous pleading/admission made on record. The contentions
qua the question whether the suit is barred by time or not shall remain open
for consideration and shall be considered at appropriate stage. In light of
the forgoing discussion, the present application stands allowed subject to
a cost of Rs. 2000/- to be paid to defendant no.1 to 3. The application
stands disposed off.
(AYUSH SHARMA)
CJ/EAST/KARKARDOOMA
DELHI/03.10.2024
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