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Raj Kumar Bhatia vs Subhash Chander Bhatia on 15 December, 2017




CIVIL APPEAL NO .19400 OF 2017
[Arising out of SLP (C) No. 8858 of 2017]






1 The present appeal arises from a judgment of the High Court of Delhi dated

5 October 2016 by which an order of the Trial Court allowing an application filed

by the appellant for amendment of the written statement was set aside.

Signature Not Verified

Digitally signed by

Date: 2017.12.15
11:59:27 IST
On 11 October 2002, Sharda Rani Bhatia instituted a suit for the recovery of

possession, arrears of damages and mesne profits against the appellant. The

property in dispute is situated on the first floor at 1/6 Ramesh Nagar, New Delhi.

The case of the original plaintiff is that Desh Raj Bhatia acquired the leasehold

rights on 13 February 1962. On his death, his children are stated to have

relinquished their rights and interest in favour of their mother, Lajwanti Bhatia. She

executed a will bequeathing the property to her son Ratan Lal Bhatia who is stated

to have become the exclusive owner of the property on her death. The original

plaintiff, Sharda Rani Bhatia is the widow of Ratan Lal Bhatia. The appellant is the

son of Ratan Lal Bhatia. Ratan Lal Bhatia died intestate. On his death, a registered

deed of relinquishment was executed in favour of Sharda Rani Bhatia by the

appellant and the respondent, the sons of Ratan Lal Bhatia and by Shakti Bhatia

in favour of their mother. The original plaintiff is stated to have permitted the

appellant and the respondent to reside along with her in the property. The suit was

filed by Sharda Rani Bhatia for recovery of possession from the appellant and for

consequential relief. The original plaintiff is stated to have executed a deed of gift

in favour of the respondent in 2003 after which he was impleaded as co-plaintiff.

The original plaintiff died in 2005 and the suit is being pursued by the respondent.

3 The appellant filed his written statement in the suit on 22 February 2003.

According to the appellant, the respondent had exercised undue influence in

obtaining the deed of relinquishment. According to him, parties had lived together

jointly even after the alleged relinquishment. The appellant claims that an oral

understanding was arrived at by which he was to occupy the first and second floors

together with the terrace whereas the respondent was to occupy the ground floor

exclusively and their mother was to live on the ground floor or, with any of her sons,

as she desired. Accordingly, it has been alleged that the family arrangement was

acted upon and the appellant is in occupation of the first and second floors together

with the terrace while the respondent is in possession of the ground floor.

4 Issues were framed on 14 August 2003. The respondent moved an

application under Order 6 Rule 17 of the Code of Civil Procedure for amendment

of the plaint on 7 February 2013, which was allowed on 21 September 2013. The

appellant filed a written statement to the amended plaint. The appellant filed an

application for amendment of the written statement in March 2016, which was

opposed by the respondent. The Trial Court allowed the application by an order

dated 11 April 2016.

5 The respondent filed an application under Order 47 Rule 1 of CPC seeking

review of the order dated 11 April 2016. On 3 June 2016, the respondent filed a

writ petition under Article 227 of the Constitution. The petition was allowed by the

impugned order dated 5 October 2016.

6 By the proposed amendment, the appellant inter alia sought to introduce the

following averments in the written statement:


“22. That as a matter of fact the property in question is the
ancestral, joint Hindu Family Property as initially in view of the
pleadings as well the same was purchased by Desh Raj Bhatia,
grandfather of the plaintiff No. 2 and the defendant. After the death
of Desh Raj Bhatia, who died intestate, the suit property was
inherited by all the legal heirs namely Smt. Rajwanti Bhatia
(widow), Sunita Rani Bhatia (Daughter), Walaityi Ram Bhatia
(Son), Om Prakash Bhatia(Son), Tilak Raj Bhatia (Son), Ratan Lal
Bhatia (son), Smt Sita Virmani (daughter), Smt Shakuntala Bhatia
(daughter), Jagdish Lal Bhatia (son). All the said legal heirs have
relinquished their rights in favour of their widow mother Smt.
Lajwanti Bhatia. Thereafter, Smt Lajwati Bhatia before her expiry,
have executed a Will in favour of Ratan Lal Bhatia, who is the
father of the plaintiff No. 2 and the defendant and after death of
Smt. Lajwanti Bhatia, the suit property was inherited by Ratan Lal

24. That it is an admitted position that on the death of Ratan Lal
Bhatia, he was survived by his widow Shara Rani Bhatia, plaintiff
No. 2, Subhash Chander Bhatia, defendant Raj Kumar Bhatia and
one daughter namely Smt. Shakti Rani Bhatia and one daughter
namely Smt Sakshi Rani Bhatia and the plaintiff No. 2, defendant
and their sister was also having their two children. It is undisputed
position that Ratan Lal Bhatia died intestate and the assets as well
as the properties left behind by him stands inherited equally in the
name of his legal heir and thus the properties left behind by Ratan
Lal Bhatia become the coparcenary property for the rights of the
grand children of Ratan Lal Bhatia. It is submitted that the grand
children of Ratan Lal Bhatia have derived their coparcenary rights
in the properties left behind by Ratan Lal Bhatia. Meaning thereby
in case of plaintiff No. 2, although he derived 1/4th share in the suit
property but legally his own son and daughter being coparcener
then his share shall be terms as 1/12th each and likewise the share
of defendant which he derived as 1/4 th on the death of his father
shall also be deemed as 1/12th each with his two sons and the
share of Sharda Rani Bhatia which she derived as 1/4th is also to
be legally deemed as 1/12th each alongwith her sons and

7 The High Court has held that the amendment sought in the written statement

was not bona fide and was not necessary for determining the real question in

controversy between the parties. The suit was instituted in 2001 and the written

statement was filed in 2003. The High Court held that based on facts which were

known to the appellant in 2003, a belated attempt was made thirteen years later in

2016 to amend the written statement to introduce an averment on the existence of

coparcenary / hindu undivided property. On merits, the High Court held that it is a

settled principle that after the enactment of the Hindu Succession Act 1956,

property which devolves on an individual from a paternal ancestor does not

become HUF property but the inheritance is in the nature of self-acquired property

unless an HUF exists at the time of the devolution. This view was based on the

judgments of this Court in Commissioner of Wealth-tax, Kanpur v Chander Sen1

and Yudhishter v Ashok Kumar2 . In the view of the High Court, the averments

sought to be introduced by the appellant do not lead to a conclusion of the

existence of coparcenary property. While accepting that in the course of

considering an application for amendment, its merits or demerits should not be

evaluated, the High Court nevertheless held that the amendment in the present

case was untenable on merits.

8 On behalf of the appellant, it has been urged that necessary averments

about the ancestral nature of the property are contained in the original written

statement. Hence, it was urged that the averments which were sought to be

elaborated in the amended written statement had their genesis in the original

written statement. Based on this premise, it was urged that the amendment was

(1986) 3 SCC 567
(1987) 1 SCC 204

correctly allowed by the Trial Court. The High Court, it was urged, ought not to

have interfered under Article 227 of the Constitution with an order of the Trial Court

allowing the amendment. Moreover, it was urged that at the stage of allowing an

amendment, the court is not justified in considering the merits of the case which is

sought to be pleaded. The High Court, it was submitted, had declined to allow the

amendment after reviewing the merits of the defence raised, which was

impermissible. The appellant also urged that the respondent had already filed an

application for review of the order passed by the Trial Court on 11 April 2016,

allowing the amendment in spite of which, a petition was filed under Article 227.

9 On the other hand, it was urged on behalf of the respondent that the written

statement as originally filed was based on a challenge to the deed of

relinquishment executed by the appellant in favour of his mother Sharda Rani

Bhatia. The appellant also sought to plead an oral arrangement to the effect that

his possession of the suit property would not be disturbed. This, it was urged,

amounted to an admission that the property was the self-acquired property of

Ratan Lal Bhatia and the appellant cannot be permitted to withdraw the admission

by amending the written statement. Moreover, it was urged that issues were

framed on 14 August 2003. The respondent had filed its evidence on affidavit and

the trial had already commenced prior to the filing of the application for amendment

of the written statement. In the absence of due diligence on the part of the

appellant, the amendment could not have been allowed. The amendment, it was

submitted, changes the fundamental nature of the defence and is aimed at

delaying the disposal of the suit.

10 In the original written statement, the appellant had set up the plea that the

property in dispute was in the nature of joint family property and that even after the

alleged deed of relinquishment, parties were living together as members of a joint

hindu family. The written statement inter alia contains the following averments :

“10…The property is the joint family property. The sister of the
respondent is married and well settled at her matrimonial home…

The defendant, plaintiff and the said S C Bhatia were jointly
occupying the said property as being the undivided joint family
property. That even after execution of the alleged relinquishment
dee the abovesaid parties were living as joint family and the suit
property being the undivided joint family…

That all family members were using ground floor, first floor and
second floor jointly as undivided joint family property.”

In paragraph 12 of the written statement, the appellant has set up an oral family

arrangement, thus :

“12…That acting upon the oral family arrangement, an amount of
Rs. 6, 00, 000/- was taken out of the common fund of the Joint
Hindu Undivided Family. The said amount has been handed over
to Dr R C Bhatia and Shri Shakti Bhatia both residents of Modi
Nagar, U P on interest. The said two persons are regularly paying
interest to the plaintiff.”

In “the reply on merits”, the appellant has averred that :

“2… The defendant is in possession of the first floor, second floor
and terrace of the said property as owner as per the oral family
settlement of the undivided Joint Hindu Property…

That all other assets movable as well as immovable including the
factory in the name and style of Rattan Industries situated at 18
DLF Industrial Modi Nagar, are still in joint possession and
ownership and no division on metes and bounds has taken place.

Though the “said property” has been divided by mets and bound
as per the oral family armament. The plaintiff has made the
present averment at the behest of her younger son Shri S C Bhatia
with an ill intention and motive to deprive the defendant of his
lawful occupation. That as per the said oral family arrangements,
an amount of Rs. 6 lacs from joint funds has been handed over on
interest to Dr R C Bhatia and Smt Shakti Bhatia, son in law and
daughter of the plaintiff. That R C Bhatia and Smt Shakti Bhatia
have been regularly paying interest to the plaintiff on the said

11 This being the position, the case which was sought to be set up in the

proposed amendment was an elaboration of what was stated in the written

statement. The High Court has in the exercise of its jurisdiction under Article 227

of the Constitution entered upon the merits of the case which was sought to be set

up by the appellant in the amendment. This is impermissible. Whether an

amendment should be allowed is not dependent on whether the case which is

proposed to be set up will eventually succeed at the trial. In enquiring into merits,

the High Court transgressed the limitations on its jurisdiction under Article 227. In

Sadhna Lodh v National Insurance Company3, this Court has held that the

(2003) 3 SCC 524

supervisory jurisdiction conferred on the High Court under Article 227 is confined

only to see whether an inferior court or tribunal has proceeded within the

parameters of its jurisdiction. In the exercise of its jurisdiction under Article 227,

the High Court does not act as an appellate court or tribunal and it is not open to it

to review or reassess the evidence upon which the inferior court or tribunal has

passed an order. The Trial Court had in the considered exercise of its jurisdiction

allowed the amendment of the written statement under Order 6 Rule 17 of the

CPC. There was no reason for the High Court to interfere under Article 227.

Allowing the amendment would not amount to the withdrawal of an admission

contained in the written statement (as submitted by the respondent) since the

amendment sought to elaborate upon an existing defence. It would also be

necessary to note that it was on 21 September 2013 that an amendment of the

plaint was allowed by the Trial Court, following which the appellant had filed a

written statement to the amended plaint incorporating its defence. The amendment

would cause no prejudice to the Plaintiff.

12 In the view which we have taken, it has not become necessary to consider

the alternative submission of the appellant namely, that recourse taken to the

jurisdiction under Article 227 by the respondent after filing an application for review

before the Trial Court was misconceived. Since the matter has been argued on

merits, we have dealt with the rival submissions.


13 Hence, on a conspectus of the facts and having due regard to the nature of

the jurisdiction under Article 227 which the High Court purported to exercise, we

have come to the conclusion that the impugned judgment and order is

unsustainable. We accordingly allow the appeal and set aside the judgment of the

High Court. The order passed by the Trial Court allowing the amendment of the

written statement is accordingly affirmed.

14 There shall in the circumstances be no order as to costs.




New Delhi
December 15, 2017

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