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Subhash Chander vs Bal Krishan & Ors on 31 January, 2019

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on : 10th January, 2019
Date of decision : 31st January, 2019

CM(M) 1255/2018 CM APPL. 42905/2018

SUBHASH CHANDER ….. Petitioner

Through: Mr. Daljinder Singh Mr.
Avineet Singh, Advocates.

versus

BAL KRISHAN ORS ….. Respondents

Through: Mr. Sanjeev Goyal, Mr.
Amitesh Giroti, Advocates.

CORAM:
HON’BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT

ANU MALHOTRA, J.

1. The petitioner Sh. Subhash Chander s/o Sh. Chetan Dass of CS
No. 9800/16 pending before the learned ADJ-01, South East, Saket
Courts, New Delhi assails the impugned order dated 11.07.2018 filed
by the petitioner herein as plaintiff for the said suit vide which the
application under Order VI Rule 17 of the Code of Civil Procedure,
1908, as amended filed by the petitioner i.e. the plaintiff of the said
suit was partially allowed with observations to the effect : –

“6. In view of my aforesaid observation, the application
under Order VI Rule 17 CPC is allowed only to the
extent as mentioned in para no. 6A, 6B of application
and to add defendant no. 1 / defendants instead of

CM(M) 1255/18 Page 1 of 13
defendant as prayed for in remaining application. Rest
of the amendments as sought to be incorporated being in
the nature of new case / withdrawal of admission /
superfluous in nature are dismissed. Cost of Rs. 10,000/-
is imposed upon plaintiff, Rs.5000/- of which to be paid
to opposite side and remaining to be deposited in DLSA,
South East.

7. Fresh amended plaint be filed on or before next date.
Two weeks advance copy be supplied to the opposite side.

Matter now be listed for payment of costs and arguments
on maintainability on 20.09.2018.”,
it having been observed vide the said impugned order that the plaintiff
i.e. the petitioner herein had sought to introduce new facts in the plaint
stating that the said facts came to his knowledge just before filing the
application which application was not at all considered as nothing had
been mentioned as to what were the circumstances in which the said
facts came to his knowledge and could not have been so brought forth
with due diligence previously. It was also observed vide the impugned
order that the amendments which had been declined were also totally
superfluous for the just and proper adjudication of the suit on merits
and that vide the order dated 17.10.2015 of the learned Joint Registrar
(Judicial) in the proceedings in the suit bearing No. CS (OS)
3396/2012 before transfer of the same from this Court to the District
Courts on change of pecuniary jurisdiction in I.A. No. 25273/2014, an
application under Order 1 Rule 10 CPC of the of the Code of Civil
Procedure, 1908, as amended filed by the plaintiff i.e. the petitioner
herein had been allowed and all the legal representatives of Late Sh.
Chetan Dass, the owner of the property in the suit in relation to which

CM(M) 1255/18 Page 2 of 13
the suit had been filed by the plaintiff i.e. the petitioner herein for
partition, cancellation of sale deed dated 10.06.2010 and permanent
injunction with respect to Plot Bearing No. L-27, Lajpat Nagar-II,
New Delhi against Sh. Bal Krishan, arrayed as the respondent no. 1, to
the present petition were held to be necessary and proper parties to the
suit and were thus allowed to be impleaded as the defendant no. 2 to
defendant no. 5 and are also arrayed on record to the present petition
as the respondent no. 2 to respondent no. 5 and that it was directed
vide order dated 07.10.2015 of the learned Joint Registrar (Judicial)
that in view of the impleadment of the defendants no. 2 to 5, the
plaintiff was directed to amend the plaint and that it was made clear
that the amendment should be restricted to the extent required by the
impleadment of the new defendants and that no new case should be set
up and that the averments already made should not be withdrawn

2. In this context, the learned Trial Court has observed to the
effect that there has been an introduction of new facts in the plaint in
violation of the order dated 07.10.2015 in the proceedings.

3. Notice of the petition was issued to the respondents.

4. Submissions have been made on behalf of either side.

5. The amendments that have been sought by the plaintiff vide the
application under Order VI Rule 17 of the Code of Civil Procedure,
1908 dated 15.10.2015 read to the effect : –

“A) That in the entire plaint the plaintiff wants to add the
word “No. 1” after the word appears in the entire plaint
as “defendant”.

CM(M) 1255/18 Page 3 of 13

B) That in para No. 1 of the plaint, the plaintiff wants to
add the words, in first line, after the words ‘and the’ as
“defendant No.2 is mother of the parties and Defendant
No.3 to 5 are the sisters of the parties”. Whereas the
word ”brothers’ be removed.

C) That the Plaintiff further wants to add in paragraph
No.1 before the last sentence after the words “Shri
Chetan Dass” the words be added as “out of the family
funds, which were generated from the family business”.
D) That the Plaintiff further wants to add paragraph
No.1-A after paragraph No.1 in the plaint as, “1-A. That
Shri Sadhu Ram, the grand father of the Plaintiff died
somewhere in the year 1983 or 1984 leaving behind his
only son, i.e. father of the Plaintiff Shri Chetan Dass”.
E) That the Plaintiff further wants to add in paragraph
No.2 after the word “Will” , the words be added “during
his lifetime”.

F) That the Plaintiff further wants to add in paragraph
No.2 in the last line after the word “property”, the words
be added as, “bearing plot No.1/27, Lajpat Nagar-II, New
Delhi”.

G) That the Plaintiff further wants to add in paragraph
No.2 towards the end of this paragraph, the words be
added as “the said Will dated 09.02.2006 of late Shri
Chetan Dass is in possession of Defendant No.1”.

CM(M) 1255/18 Page 4 of 13

H) That the Plaintiff further wants to add in paragraph
No.3, the word “Defendant” be replaced as
“Defendants”. In same paragraph, the words ”and other
family members” be removed.

I) That the Plaintiff further wants to add in paragraph
No.4 of the plaint after the word “Defendant” the word
“No.1”. After this paragraph the Plaintiff further wants
to add one more paragraph as “paragraph ‘No.4A’ as
“That since the defendants were harassing the wife of the
Plaintiff who was living in the same premises, hence the
wife of the plaintiff had lodged one F.I.R. bearing No.
225/11 under Section 498A/406/34 I.P.C. against the
Defendants as well as the Plaintiff. She had also initiated
other criminal proceedings against the Defendants,
which are pending against the Defendants etc. in the
Criminal courts at Delhi. At one stage, the Defendants
had debarred / boycott the Plaintiff. Accordingly, the
Plaintiff has been deprived from all the ancestral
properties by the Defendants. The Plaintiff has to file
suits in respect of all the ancestral properties situated at
Haryana and Delhi against the Defendants to get his
legal rights from the Defendants. All the defendants had
hatched out the conspiracy not to give Plaintiffs share
from the ancestral properties and that is why the Plaintiff
and his family members were debarred / boycott by the
defendants.”

CM(M) 1255/18 Page 5 of 13

J) That the Plaintiff further wants to add in paragraph
No.5 of the plaint in the entire paragraph, wherever the
word “Defendant” appears, the word “No.1” be added
after the word Defendant. In the same paragraph after
the date 09.02.2006, the words be added as “which was
executed by late Shri Chetan Dass”. At the end of this
paragraph, the words “with the Defendant No.1” be
added.

K) That the Plaintiff further wants to add in paragraph
No.6 as “No.1” after the word “defendant” wherever it
appears in the entire paragraph. In this paragraph, the
Plaintiff further wants to add in second line after the
words ”with respect” the words “of 1/2 share in”.
L) That the Plaintiff further wants to add in paragraph
No.7 the words as “No.1” after the word “Defendant” in
first line.

M) That the Plaintiff further wants to add in paragraph
No.8 the words as “No.1” after the word “Defendant”
wherever it appears in paragraph No.8.
N) That the Plaintiff further wants to add in paragraph
No.9 the words as “No.1” after the word “Defendant”
wherever it appears in paragraph No.9.
O) That the Plaintiff further wants to add in paragraph
No.11 in line 3 after the words “of” the words “Late” is
to be inserted by removing the words “the father of the
parties”. In eighth line of this paragraph, the word

CM(M) 1255/18 Page 6 of 13
“Defendant” be replaced as “Defendants”. At the end of
line No.9 of this paragraph, after the words “grand-
father”, the words “of Plaintiff late Mr.Sadhu Ram” by
inserted by removing the words “of the parties “. In rest
of the paragraph No. 11 wherever the words appear as
“parties”, the word “Plaintiff be inserted by removing
the word parties. In the last fourth line, the word “No.1”
be added after the word “Defendant”.

P) That the Plaintiff further wants to add in paragraph
No. 12 in the first line after the word ”Defendant” the
word as “No.1” be added. In third line of this paragraph,
the Plaintiff wants to add the word as “/ competent”. The
Plaintiff further wants to add in fifth line after the word
”Funds ” as “of the family”. The Plaintiff further wants
to add in sixth line after the word “Plaintijf”, the words
during his lifetime” be added. In 10th line of this
paragraph, the word “Defendant” be replaced as
“Defendants” by removing the words alongwith three
sisters. In line No. 11th of this paragraph, the word
“Plaintiff” be inserted by removing the word “parties”.
In 13th line of this paragraph the word appears as “of
after the word “proceeds” be removed and the word
“from” be inserted. In the same line at the end, after the
word “land” the words “which is” be inserted. In line
14th of this paragraph the word “that” be removed The
Plaintiff further wants to add the words “from those

CM(M) 1255/18 Page 7 of 13
ancestral funds/income” at the end of this paragraph
after the word “Dass”.

Q) That the Plaintiff further wants to add in paragraph
No. 13 in 2nd line after the word “Dass” as “in favour of
Defendant No.1”. In the same line after the word “law”,
the words “in view of the above facts” be inserted. In 5 th
line of this paragraph after the word “Defendant”, the
word “No.1” be added after the words “Sale Deed” in
the same line, the words “which was obtained
mischievously after playing fraud upon him” be added.
In 7th line after the word “properly” the words “or
receive the consideration amount” be added. In 16th line
of this paragraph, the words “Plaintiff be added by
removing the word “parties”. In 18th line of this
paragraph, after the word “problem”, the words “for
the” be added after removing the word “since”. At the
end of this paragraph, the words “the medical records of
Holy Family Hospital, Okhla, New Delhi are in
possession of the Defendants, particularly Defendant
No.1”.

R) That the Plaintiff further wants to add in paragraph
No. 14 in 2nd, 5th and 17th line after the word
“Defendant”, the word “No.1” be inserted. Towards end
of the 10th line, the word “to” may be inserted. In 16th
line after the words “80 days” the words “by the
Defendant No.1” be inserted. In 19th line after the word

CM(M) 1255/18 Page 8 of 13
“lakhs” the words “So there is no sale consideration took
place between the Defendant No.1 and late Shri Chetan
Dass at the time of execution of the said sale deed” be
inserted. In line No.21, the word “Plaintiff be inserted by
removing the word “parties”. In line No.22, the word
“is” be removed and the word “Plaintiffs” be inserted. In
line No.23, the word “Plaintiff be inserted by removing
the word “parties”.

S) That the Plaintiff further wants to add in paragraph
No. 15 in line No.2 after the word “Defendant” the word
“No.1” be inserted. In line No.3 after the word “remedy”
the word “available” be inserted.

T) That the Plaintiff further wants to add in paragraph
No. 16 wherever the word appears as “Defendant” the
same be replaced as “Defendants”. In line No.7 of this
paragraph, after the word “Defendant”, the word “No.1”
be inserted.

U) That the Plaintiff further wants to add in paragraph
No.18 towards end of this paragraph the words “the
Plaintiff undertakes to pay the requisite court fees if
accrued while passing the judgment and decree or as
ordered by the court.

V) That the Plaintiff further wants to add the words
towards end of prayer clause (b) as “executed between
late Shri Chetan Dass and Defendant No.1 in respect of
the suit property”.

CM(M) 1255/18 Page 9 of 13

W) That the Plaintiff further wants to add in prayer
clause (d) in 5th line after the word “share”, the words
“awarded in the preliminary decree”.

6. The amendments allowed vide the impugned order as observed
hereinabove relate only to permission granted for amendment as
sought vide para 6A and 6B and to add the word ‘defendants’ in place
of ‘defendant no. 1’. It has been submitted on behalf of the petitioner
and not refuted on behalf of the respondents no. 1 to 5 that there are
other consequential typographical amendments as prayed through the
application under Order VI Rule 17 of the Code of Civil Procedure,
1908 and vide the present petition, which would be essential as prayed
by the petitioner which relate to.

7. On behalf of the petitioner, reliance was placed on the verdicts
of the Hon’ble Supreme Court in : –

Revajeetu Builders and Developers v. Narayanswamy
and Sons and Others; (2009) 10 Supreme Court Cases 84
Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal
Kabrawala and others; AIR 1964 Supreme Court 11
Baldev Singh Ors. etc. v. Manohar Singh Anr. Etc.;
AIR 2006 Supreme Court 2832 and;

B.K. Narayana Pillai v. Parameswaran Pillai and Anr.;
(2000) 1 SCC 712 and the verdict of this Court in
Adesh Kanwarjit Singh Brar v. Ms.Babli Brar Ors.;

AIR 2011 DELHI 187,
to contend that the amendments sought on behalf of the petitioner, the
plaintiff of the CS No. 9800/16, do not in any manner fundamentally

CM(M) 1255/18 Page 10 of 13
change the nature and character of the suit and that the amendments
sought are only to clarify the existing pleadings and merely to
elucidate and plead the cause more specifically and in express words
and that the amendments sought are essential to determine the real
controversy between the parties without altering the original cause of
action.

8. On a consideration of the rival submissions made on behalf of
either side, the verdicts relied upon on behalf of the petitioner, the
amendments sought by the petitioner herein as the plaintiff of the suit
before the learned Trial Court vide para 6A to para 6W of the
application of the plaintiff i.e. the petitioner herein and the reply that
was submitted by the respondents to the application under Order VI
Rule 17 of the Code of Civil Procedure, 1908 before the learned Trial
Court, it is essential to observe that as regards the amendments sought
other than those permitted as prayed vide para 6A and para 6B of the
application filed by the plaintiff i.e. the petitioner herein allowed vide
the impugned order, as regards the amendment sought vide para 6E,
para 6F, para 6H, the first sentence in para 6I, which reads to the
effect that the plaintiff wants to add in para 4 of the plaint after the
word defendant, the word ‘No. 1’, the amendment sought vide para
6L, para 6M, para 6N, para 6O, the word ‘No. 1’ after the word
defendant in para as prayed vide para 6Q, the word ‘No. 1’ as prayed
vide para 6R in paragraph 14 of the plaint in 2nd, 5th and 17th line and
the word ‘to’ at the end of the 10th line, the word ‘plaintiff’ by removal
of the word ‘parties’ in line 21 of the para 14, the word ‘plaintiff’s’ in
line 22, the word ‘plaintiff’ in line 23 of para 21 of the plaint as prayed

CM(M) 1255/18 Page 11 of 13
vide para 6R, the word ‘No. 1’ in para 15 as prayed vide para 6S, the
word ‘No. 1’ after the word defendant in line 7 of the para 16 as
prayed vide para 60, the amendment sought to para 18 as prayed vide
para 6U, the words as prayed in prayer clause-‘b’ as prayed vide para
6V of the application are allowed to be amended as prayed vide the
application dated 15.10.2015 by the petitioner herein as had been
submitted before the learned Trial Court as these are mere
consequential amendments and inter alia rectification of grammatical
variations. All other amendments sought by the petitioner vide the said
application dated 15.10.2015, which have been opposed on behalf of
the respondents have rightly been held by the learned Trial Court to be
inserting new averments which cannot be new permitted as there is
nothing to indicate that the plaintiff of the suit i.e. the present
petitioner could not have raised the pleas now sought to be
incorporated through the amendment application inspite of exercise of
due diligence.

9. It is apparent thus that the proviso to Order VI Rule 17 of the
Code of Civil Procedure, 1908, as amended, which reads to the effect:-

17. “Amendment of pleadings – The Court may at any
stage of 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

CM(M) 1255/18 Page 12 of 13
party could not have raised the matter before the
commencement of trial.”

(emphasis supplied)
has to be given effect to.

10. In the facts and circumstances of the case, thus all other
amendments as sought by the plaintiff i.e. the petitioner herein other
than those permitted hereinabove vide para 7 of this order are
declined.

11. To this limited extent the impugned order dated 11.07.2018 of
the learned ADJ-01, South East, Saket Courts, New Delhi is modified.

ANU MALHOTRA, J
st
JANUARY 31 , 2019/mk

CM(M) 1255/18 Page 13 of 13

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