Vinet Dargar vs Krishna Mohan Dargar & Ors

Jayant Nath, J

Pursuant to order of this court dated 17.04.2017, the learned senior counsel for the plaintiff has clarified that an affidavit has been filed and placed

on record. He reiterates on instruction that the phrase „concern‟ as used refers to M/s AMF Exports which was a family business and was the sole

proprietorship concern of defendant No.1. It is stated that this M/s AMF Exports continues to operate. In addition, there is a company AMF Exports

Pvt. Ltd. which has been impleaded as defendant No.4.

The above clarification is taken on record.

I.A.12586/2015

This application is filed seeking amendment of the plaint under Order 6 Rule 17 CPC. The plaintiff has filed a suit seeking a decree against the

defendants declaring the plaintiff to be the owner of property No.H-20A, Saket, New Delhi. He has also sought a decree declaring the plaintiff to be

owner of property being A-106 Sector-63, Noida. He has also sought a decree of possession in respect of the property at Noida. Other connected

reliefs also sought.

It is the case of the plaintiff that in the written statement filed by defendant No.1, a plea has been taken that the suit is infructuous regarding

property No.H-20A Saket, New Delhi, in view of the fact that the property has been gifted by defendant No.1 to his daughter-in-law i.e. wife of

defendant No.2, hence, it is urged that the suit is liable to be dismissed.

It is further stated by the plaintiff that subsequent to filing of the suit, the plaintiff was in possession of the property in Saket on the day of filing of

the suit. He has now been dispossessed on 29.07.2014. I may point out that subsequent to filing of the written statement by defendant No.1, the

plaintiff had filed an application under Order I Rule 10 CPC being I.A. No.12585/2015 which was allowed on 29.01.2016 whereby the defendant No.5

who was beneficiary of gift deed dated 11.03.2014 regarding the property at Saket was impleaded as a party.

Hence, the present application has been filed whereby in the prayer clause relief is sought to be added seeking a decree of possession of the

property at Saket. Relief is also sought to be added seeking a decree of declaration declaring the gift deed dated 11.03.2014 alleged to have been

executed by defendant No.1 in favour of defendant No.5 as void and illegal.

 5. I have heard learned counsel for the parties.

The learned counsel for the defendants has strongly opposed the present application saying that the nature of the suit is sought to be changed. It is

urged that a suit for declaration and possession is now sought to be changed into a suit for partition. Reliance is placed on para 4A of the proposed

amendment where it is prayed that the suit has been filed by the plaintiff claiming the relief for partition. It is also stated that the facts which are to be

brought on record were within the knowledge of the plaintiff.

Order 6 Rule 17 CPC reads as follows:

“17. Amendment of Pleadings.- the Court may at any stage at the proceedings allow either party to alter or amend his pleadings in such manner

and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in

controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of

due diligence, the party could not have raised the matter before the commencement of trial.â€​

I may note that one of the triggers for filing of the present amendment application is an order of this court dated 29.01.2016 impleading defendant

No.5.

Under Order I Rule 10(4) CPC, when a party is impleaded, the plaintiff may make consequential changes in the plaint.

It is the case of the plaintiff that the present case apart from making consequential changes pursuant to impleadment of defendant No.5, certain

additional facts are sought to be brought on record which do not change the nature of the suit. Two additional reliefs are also sought namely for

possession of the Saket property as the plaintiff has been dispossessed from the said suit property after filing the present suit. Similarly, relief of

declaration is sought that the gift deed is void as knowledge of the execution of this gift deed came to the plaintiff only when he was illegally

dispossessed from property at Saket and the written statement was filed.

As far as the plea of the defendants is concerned, namely that the nature of relief is sought to be changed, the plea is entirely misplaced. In the

prayer clause which are sought to be added there is no relief sought to be added for partition of the property as already noted above. There are only

two additional prayer clauses which are sought to be added, namely to declare the gift deed dated 11.03.2014 executed in favour of defendant No.5 as

void and illegal and seeking possession of the property at Saket as the plaintiff claims this possession after filing of the suit. Merely, some averments

made in some portion of the proposed amendments, it does not mean that the relief of partition has been sought. In the course of arguments, the

learned senior counsel for the plaintiff has clarified that in the prayer clauses there is no averment seeking partition of the property. It cannot be said

that there is any attempt to change the nature of the suit. It is quite clear that amendments which are now being sought are only as a consequence of

events/pleas which arose after filing of the suit. The events/pleas are relating to possession of property at Saket and the gift deed executed in favour

of defendant No.5.

In Revajeetu Builders and Developers vs. Narayanaswamy and Sons & Ors., (2009) 10 SCC 84, the Supreme Court noted as follows:-

“63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while

allowing or rejecting the application for amendment:

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and

(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of

application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only

illustrative and not exhaustive.â€​

The amendments which are sought are bonafide. They are necessary for complete and proper adjudication of the disputes between the parties. I

accordingly allow the application. The amended plaint is taken on record.

Written statement to the amended plaint be filed within four weeks from today.

List before the Joint Registrar for completion of proceedings on 05.02.2018.