Anita Anand vs Gargi Kapur & Ors

Yogesh Khanna, J

IA No.10957/2017

The plaintiff has filed this suit claiming she is an owner of 1/3rd unpartitioned share of property bearing No. 12/19, Western Extension Area, Karol

Bagh, New Delhi-110005 admeasuring 556 sq. yards. It is averred by the plaintiff that during the course of arguments in IA No.4817/2017, under

Order 7 Rule 11 CPC, the counsel for the defendant for the first time had argued the present suit is barred under Section 3 of the provisions of

Prohibition of Benami Property Transactions Act, 1988 on the ground the plaintiff had not expressly averred in her suit the suit property was not

purchased by the father for the benefit of his wife Late Gargi Kapur. The said plea under the Benami Act has not been elaborated by the defendant

either in his written statement or in his application under Order 7 Rule 11 CPC-IA No.4817/2017.

It is alleged in para 8 of the plaint the plaintiff has averred the suit property was purchased by Sh.Joginder Nath Kapur in the name of Smt. Gargi

Kapur so that she could hold the same for the benefit of Sh.Joginder Nath Kapur and their children and a purposeful reading of this assertion would

demonstrate the claim of the plaintiff that although Sh.Joginder Nath Kapur had purchased the property in his wife’s name the intention was it

was to be held by defendant No.1 for the benefit of the family of Sh.Joginder Nath Kapur and not for her own benefit. The counsel for the plaintiff

argued though the said averments made in para 8 of the plaint sufficiently rebut the presumption contained in Section 3(2) of the Prohibition of Benami

Property Transactions Act, 1988 so as to prevent any unjustified advantage accruing to the defendants but out of abundant caution the plaintiff by this

application seek leave to amend the plaint by addition the following sentence in the beginning of para 8 viz., “the said property was not purchased

by Sh.Joginder Nath Kapur for the benefit of his wife; Smt.Gargi Kapurâ€​.

The amended para 8 is given in para 10 of the application.

It is argued that the suit is at its nascent stage and the trial has not yet begun and since the amendment is material and necessary for the purpose of

determining the real question in controversy between the parties and since it do not add a new cause of action and being consistent with the original

case set up by the plaintiff, it be allowed.

Learned counsel for the defendants had argued the amendment can only be allowed if it determines the real question in controversy and the

question here is if the property belong to Sh.Joginder Nath Kapur or to his wife. It is argued since the plaintiff has not sought any declaration that

Sh.Joginder Nath Kapur was an absolute owner of the property, the amendment, even if allowed, would not be determining the real question(s)

involved. Further it is argued the replication filed by the plaintiff as also her reply in response to the application under Order 7 rule 11 CPC would

reveal she was well aware of the defence taken by the defendant hence cannot allege that she came to know of this defect for the first time only

when the defendant had argued their application under Order 7 Rule 11, CPC. Lastly it is averred the amendment is beyond limitation.

There is no doubt to the position of law that pending an application under Order 7 Rule 11 CPC, the amendment can be allowed under Order 6 Rule

17 CPC as was held in Wasudhir Foundation V. C.Lal & Sons 45 (1991) DLT 556 and also in Mrs.Binu Anand Khanna V. Mr.Ratan Tata, Chairman,

Taj Group MANU/DE/2976/2005.

Let me now see what the plaintiff intends to add. The plaintiff has already averred the subject property was purchased by Sh.Joginder Nath Kapur

in the name of his wife Smt.Gargi Kapur so that she could hold it for the benefit of Sh.Joginder Nath Kapur and their children. By way of this

amendment the plaintiff only seek to add the said property was not purchased by Sh.Joginder Nath Kapur for the benefit of his wife Smt.Gargi Kapur.

The averment, the plaintiff intend to add is the same thing said in a different manner and is not in any way introducing any new case or changing the

earlier case of the plaintiff. The addition sought is not in any way inconsistent with the plaintiff’s case originally pleaded and rather is in

consonance with what is stated in para 8 of the plaint. Admittedly the issues are not framed as yet hence there is no material delay in seeking the

amendment. The amendment rather is necessary for determining the real question in controversy viz., if the property is capable of being partitioned or

if the plaintiff has a share in the property. Thus the amendment stands allowed subject to cost of Rs.20,000/- to be paid to the counsel for the

defendants.

The application is disposed of.

CS(OS) 3489/2014

The amended plaint be filed by the plaintiff with an advance copy thereof to the learned counsel for the defendants within four weeks from today,

subject to payment of the above cost to the defendants. The defendants would then be at liberty to file the written statement to amended plaint, if any,

within four weeks thereafter with an advance copy thereof to the learned counsel for plaintiff. Replication thereto, if any, be also filed by the plaintiff

within two thereafter.

List for compliance and completion of pleadings before the Joint Registrar (Judicial) on 12th February, 2018.