MOHINDER KUMAR MEHRA vs. ROOP RANI MEHRA

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C.A. No.-019977-019977 - 2017Supreme Court2017 INSC 121211 December 2017Bench: HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE ASHOK BHUSHANAuthor: HON'BLE MR. JUSTICE A.K. SIKRI22 pages
For Petitioner: SHOBHA GUPTA

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1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURI ICTION CIVIL APPEAL NO.19977 OF 2017 (Arising out of SLP (C) No. 26695/2017) MOHINDER KUMAR MEHRA …APPELLANT VERSUS ROOP RANI MEHRA & ORS. …RESPONDENTS J U D G M E N T ASHOK BHUSHAN, J.

1.

This appeal has been filed against the judgment of Delhi High Court dated 02.08.2017 by which judgment, the Writ Petition filed by the appellant challenging the order of Additional District Judge dismissing the application of the plaintiff under Order VI Rule 17 of the Civil Procedure Code (hereinafter referred to as “C.P.C.”) has been dismissed. Facts in brief necessary to be noted for deciding the appeal are:- The appellant and respondent No.5 are sons of respondent No.

1.

Respondent Nos. 2, 3 and 4 are wife, son and daughter of another brother of appellant. The appellant’s father Late Shri O.P. Digitally signed by ASHWANI KUMAR Date: 2018.02.15 15:32:50 IST Reason: Signature Not Verified

2 Mehra alongwith his wife and three minor sons came to Delhi from Lahore after Partition. Shri O.P. Mehra died in 1951. The respondent No.1 and her sons were held entitled to compensation under Order of Settlement Commissioner, New Delhi dated 14.08.1956. The respondent No. 1 was declared as highest bidder in a public auction for a House No. D-4, Lajpat Nagar, area measuring 300 sq. yds. which amount was adjusted from the claim to which the respondent No.1 and her sons were held entitled. Another property was also allotted in the name of respondent No.1 of area measuring 200 sq. yds. at G-11, Nizamuddin, New Delhi. The property G-11, Nizamuddin was sold by respondent No.1 in the year 2000. On 04.11.2009, the appellant filed a Suit No. 2082 of 2009 against the respondents seeking partition of the suit property described in Appendix A. In Appendix A, only property mentioned was Plot No.D-4, Lajpat Nagar, Part-II, New Delhi. Written statement was filed by the respondent and on 17.05.2010, issues were framed by the Court. 10.08.2010 was fixed for recording the evidence of the plaintiff. The plaintiff prayed for time for

3 producing evidence. On 17.01.2011, plaintiff filed an application under Order VI Rule 17 praying for amendment of the plaint. By the application plaintiff sought to add certain pleadings and a prayer claiming share in the sale proceeds received by defendant No.1 from sale of the property of Nizamuddin. Application filed by the plaintiff was objected by the defendants by filing a reply. It was pleaded that several opportunities were given to the plaintiff to lead evidence and last opportunity was given on 08.12.2010 to file his evidence by 28.01.2011. It was further pleaded that in the sale document of Nizamuddin property, plaintiff himself was a witness. The relief which is sought to be amended is barred by time and is altogether a separate cause of action. Plaintiff filed a rejoinder in which it was stated that plaintiff came to know that plaintiff had undivided share in the property at Nizamuddin only in November, 2010. He further stated that he informed all the facts to his earlier counsel but in the plaint the mention of Nizamuddin property was not made by earlier counsel and while preparing for evidence in the suit, the fact was noticed by the

4 plaintiff only in November, 2010 and hence application for amendment has been filed. The Court passed on order on 26.07.2011 granting the plaintiff four week’s time as a last opportunity to file the examination-in-chief of his witnesses subject to payment of Rs.5,000/-, with regard to I.A. No.1001 of 2011, it was stated “Needless to say in Case I.A. No.1001/2011 is allowed, appropriate orders for evidence of the plaintiff would be made.” Parties led evidence and suit was fixed for final disposal. On 14.02.2014, an order was passed directing that amendment application shall be considered at the time of final hearing of the suit. Plaintiff filed an application for amendment of issues, which was rejected by the High Court on 09.02.2015. The plaintiff filed a FAO (OS) No.196 of 2015, in which Division Bench of the High Court by order dated 28.04.2015 directed the learned Single Judge to decide the amendment application I.A. No. 1001 of 2011. In the meantime on account of pecuniary juri iction of the case, the suit was transferred to the Court of Additional District Judge, Saket. The Additional District Judge took up the amendment

5 application and vide order dated 24.10.2016 rejected the amendment application. The trial court took the view that the suit for recovery of money of his share could have been filed by plaintiff within three years from the date of sale. The trial court held that the amendment sought is barred by time, hence the application was rejected. A Writ Petition under Article 227 was filed by the plaintiff in the High Court challenging the order dated 24.10.2016, which has been dismissed by the High Court by the impugned judgment, against which this appeal has been filed.

2.

We have heard Ms. Shobha, learned counsel for the appellant. Shri S.B. Upadhyay, learned counsel was heard for respondent No.1, Shri Rana S. Biswas and Ms. Sharmila Upadhyay, has been heard for respondent No.

5.

Learned counsel for respondent No.5 having adopted the submissions raised on behalf of respondent No.1, we shall hereinafter refer to the submissions of respondent No.1 and respondent No.5 as submissions on behalf of respondents.

6

3.

Learned counsel for the appellant in support of the appeal contends that the application filed by the plaintiff for amendment under Order VI Rule 17 was not barred by time. Relying on Article 110 of the Limitation Act, 1963, learned counsel submits that the limitation for enforcing a right to share in a joint family property is twelve years, hence the claim was not barred by time. The High Court on one hand refrained itself from saying anything on the issue of limitation on Article 110 of the Limitation Act and on the other hand has given an approval to the view of the learned Additional District Judge that suit is barred by time. The High Court has failed to appreciate that parties have already led evidence relating to proposed amendment which fact was recorded by the High Court on 14.02.2014 and only a formal order of allowing amendment was required, which would not have caused any prejudice to the defendant. The High Court on technical grounds has rejected the amendment application whereas it is well settled that amendment applications are to be liberally considered and unless any prejudice is shown to be caused to the defendant, the applications

7 are allowed.

4.

Learned counsel for the respondent refuting the submission of the appellant contends that amendment application filed by the appellant could not have been allowed in view of Proviso to Order VI Rule 17 C.P.C. It is submitted that trial in the suit has already commenced and plaintiff failed to show that in spite of due diligence, he could not raise the matter earlier, hence the trial court has rightly rejected the amendment application. It is further stated that claim was barred by time. The amendment sought to be made related to claim for recovery of money for which limitation is only three years, as has been rightly held by the trial court. There is no substance in the case of the plaintiff that due to mistake of earlier counsel, the Nizamuddin property could not be included in the plaint. Plaintiff himself has verified the plaint and cannot be allowed to take any such plea. The Proviso to Order VI Rule 17 does not permit any such amendment as now prayed by plaintiff. It is submitted that there was no due diligence at all on the part of the appellant-plaintiff so as to enable the Court to

8 allow the amendment exercising the power reserved to the Court under Proviso. The appellant in his repllication has stated that Lajpat Nagar property was the one and the only joint family property. By allowing the amendment, the very nature of the suit shall be changed, causing great prejudice to respondent No.

1.

Learned counsel for the respondents have also raised submissions regarding the merits of the claim of the plaintiff.

5.

We have considered the submissions of the learned counsel for the parties and have perused the records.

6.

Order VI Rule 17 of C.P.C. as it now exists is as follows:-

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 par- ties: Provided that no application for amendment shall be allowed after the trial has com- menced, unless the court comes to the conclu- is to the following effect:

“26. Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again

10 been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if applica- tion is filed after commencement of trial, it has to be shown that in spite of due dili- gence, such amendment could not have been sought earlier. The object is to prevent friv- olous applications which are filed to delay the trial. There is no illegality in the pro- vision.”

8.

The judgment on which much reliance has been placed by learned counsel for the appellant is Rajesh Kumar Aggarwal & Ors. Vs. K.K. Modi & Ors. (2006) 4 SCC

385.

This Court had occasion to consider and interpret Order VI Rule 17 in Paragraphs 15 and 16, in which following has been held:- “15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for de- termining the real question in controversy be- tween the parties provided it does not cause injustice or prejudice to the other side.

16.

Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose

11 of determining the real question in contro- versy between the parties.”

9.

Although Order VI Rule 17 permits amendment in the pleadings “at any stage of the proceedings”, but a limitation has been engrafted by means of Proviso to the effect that no application for amendment shall be allowed after the trial is commenced. Reserving the Court’s juri iction to order for permitting the party to amend pleading on being satisfied that in spite of due diligence the parties could not have raised the matter before the commencement of trial. In a suit when trial commences? Order XVIII of the C.P.C. deal with “Hearing of the Suit and Examination of Witnesses”. Issues are framed under Order XIV. At the first hearing of the suit, the Court after reading the plaint and written statement and after examination under Rule 1 of Order XIV is to frame issues. Order XV deals with “Disposal of the Suit at the first hearing”, when it appears that the parties are not in issue of any question of law or a fact. After issues are framed and case is fixed for hearing and the party having right to begin is to produce his evidence, the trial of suit commences. This Court in

12 Vidyabai & Ors. Vs. Padmalatha & Anr., (2009) 2 SCC 409 held that filing of an affidavit in lieu of examination-in-chief of the witnesses amounts to commencement of proceedings. In Paragraph 11 of the judgment, following has been held:- “11. From the order passed by the learned trial Judge, it is evident that the respon- dents had not been able to fulfil the said precondition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the pro- ceeding. Filing of an affidavit in lieu of ex- amination-in-chief of the witness, in our opinion, would amount to “commencement of pro- ceeding”.” 10.Coming to the facts of the present case, it is clear from the record that issues were framed on 17.05.2010 and case was fixed for recording of evidence of plaintiff on 10.08.2010. Plaintiff did not produce the evidence and took adjournment and in the meantime filed an application under Order VI Rule 16 or 17 on 17.01.2011. Thereafter the Court on 26.07.2011 has granted four week’s time as the last opportunity to file the examination-in-chief. It is useful to quote Paragraph 4 of the Order, which is to the following

13 effect:-

4.

In view of the above, it is directed as follows:- (i) Having regard to the delay which has ensued, subject to the plaintiff paying costs of Rs.5,000/- each to the contesting defendant No.1 and 5 within a period of one week, the plaintiff is permitted four weeks time as a last opportunity

to file

the examination-in-chief of his witnesses on affidavit. (ii) The matter shall be listed before the Joint