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High Court Of Delhi
SEHDEV SETH - Appellant
Versus
VIDYAWANTI SETH - Respondent
Civil 129 of 1972
Decided On : 01/18/1974
AMENDMENT OF PLAINT - ORDER 6, RULE 17, CODE OF CIVIL PROCEDURE - SUIT FOR DECLARATION OF TITLE AND POSSESSION - AMENDMENT OF PLAINT TO ADD PRAYER FOR POSSESSION - WHETHER ALLOWABLE - PRINCIPLES GOVERNING AMENDMENT OF PLEADINGS - DELAY IN FILING APPLICATION FOR AMENDMENT - EFFECT - COURT FEES AND JURISDICTION - PROCEDURE UNDER ORDER 33, CODE OF CIVIL PROCEDURE - NECESSITY TO FOLLOW.
Fact of the Case:
Plaintiff filed a suit for a declaration that she was the owner and in possession of a plot and that the defendant had no interest in the said plot. The defendant filed a written statement raising preliminary objections, including that the suit was not maintainable without a prayer for possession. The plaintiff then filed an application to amend the plaint by adding the Refugee Co-operative Housing Society as a party. The amendment was allowed, and an amended plaint was filed. The defendant filed a written statement reiterating the preliminary objections. The plaintiff adduced evidence, and the defendant adduced evidence. During the course of the arguments, the plaintiff's counsel requested time to file an application for amendment of the plaint by adding a prayer for possession of the property. The adjournment was granted. The plaintiff filed an application under Order 6, Rule 17 of the Code of Civil Procedure for amendment of the plaint, seeking to add a prayer for delivery of possession of the plot either from the defendant or from the Society, defendant 2, in the alternative. The application was opposed by the defendant, but the trial Court allowed the amendment prayed for on payment of Rs. 50 as costs. The defendant filed a Civil Revision against the order.
Finding of the Court:
The Court held that the amendment sought to introduce a claim based on the same cause of action, i.e., the title, and did not seek to introduce a new case. The plaintiff's claim to possession was mentioned in the original plaint as a prayer for a declaration "that she was in fact the owner and in possession of the plot" in question. The defendant was aware that the object of the plaintiff in filing the suit was to secure her title to and possession of the plot. It was a case in which the claim regarding possession was in substance in the plaint from the beginning of the suit. Defendant 1 could not, therefore, legitimately say that he was taken by surprise by the amendment. The prayer for possession was just a consequential relief, and was not a new case and much less an inconsistent case.
Issues: 1. Whether the amendment of the plaint to add a prayer for possession was allowable? 2. Whether the delay in filing the application for amendment was fatal? 3. Whether the court fees and jurisdiction were properly determined?
Ratio Decidendi: 1. The Court held that the amendment sought to introduce a claim based on the same cause of action, i.e., the title, and did not seek to introduce a new case. The plaintiff's claim to possession was mentioned in the original plaint as a prayer for a declaration "that she was in fact the owner and in possession of the plot" in question. The defendant was aware that the object of the plaintiff in filing the suit was to secure her title to and possession of the plot. It was a case in which the claim regarding possession was in substance in the plaint from the beginning of the suit. Defendant 1 could not, therefore, legitimately say that he was taken by surprise by the amendment. The prayer for possession was just a consequential relief, and was not a new case and much less an inconsistent case. 2. The Court held that the delay in filing the application for amendment was not fatal. Rule 17 itself provides that amendment may be allowed at any stage of the proceedings. The mistake in the frame of the suit appeared to be more that of the learned counsel, and there was no ground for thinking that the plaintiff had not acted bona fide and in good faith. The suit for possession for the plot on the amended plaint was not barred by limitation on the date of the application for amendment. In the circumstances, it could not be said that any valuable right had accrued to the defendants or that by the delay in filing the application for amendment any injury that may not be compensated by costs had been caused to the defendants. 3. The Court held that the impugned order was only one granting the amendments prayed for, and not one granting permission to the plaintiff to sue-in forma pauperis. The lower court had still to go through the procedure under Order 33 and decide the Question regarding the alleged pauperism of the plaintiff.
Final Decision: The Civil Revision was dismissed. The parties were directed to bear their own costs in the Civil Revision. The parties were also directed to appear before the lower court for further proceedings in the suit.
( 1 ) THIS Civil Revision has been filed by Shri Sehdev Seth, defendant in Suit No. 624 of 1965, on the file of the Court of Shri S. C. Ahuja, Subordinate Judge, 1st Class, Delhi, against an order, dated March 2, 1972, passed by the learned Subordinate Judge allowing an amendment of the plaint prayed for by the plaintiff, Shrimati Vidya Wati Seth, under Order 6, Rule 17 of the Code of Civil Procedure.
( 2 ) SHRIMATI Vidya Wati Seth, widow of Shri Multani Ram Seth, filed the aforesaid suit for a declaration that she was the owner and in possession of plot No. 69, Road No. 42, measuring 533. 33 square yards. Class "c, situated in Punjabi Bagh, Delhi, and that Shri Sehdev Seth, defendant in the suit. had no interest in the said plot.
( 3 ) ACCORDING to the plaint filed in the suit, the plaintiff s husband, Shri Multani Ram Seth, was a displaced person from Lahore, and he settled at Delhi after the partition of the Country. He was duly registered as a displaced person at Delhi under Refugee Registration Certificate KAR 829 (l)-v on November 21. 1947. He became a member of the Refugee Co-operative Housing Society Limited, and the Society agreed to allot one plot in his name. Accordingly, plot No. 69, Road No. 42, measuring 533. 33 square yards. Class "c", was allotted to him by the Society. Shri Multani Ram Seth had given the name of the plaintiff as his nominee. Subsequently, on June 22, 1955, Multani Ram Seth died. The plaintiff thereupon made an application to the Society on July 30, 1955. informing it about the death of her husband and requesting that the share held by him be transferred in her name, being his nominee. The Society agreed to allot one Class "c" plot to the plaintiff as per an agreement, dated January 10, 1959, subject to the payment of the development charges and other call money as and when the same would be demanded. It was alleged that the plaintiff paid all the call money and other demands which were made from time to time by the Society and that she was, therefore, entitled to the execution of a sale deed in her favour by the Society in respect of the said plot.
( 4 ) THE plaintiff further alleged that she had to raise a loan for constructing a building on the aforesaid plot, that the defendant, her real eldest son, who was aware that she had to apply for a loan for the construction of a building on. the plot, told her that she should sign an application which he would present in the office and arrange for the loan, and that having full faith in the defendant and believing what he stated, signed a letter typed in English on April 1, 1962, which was read over to her by the defendant to be an application on her behalf for raising the loan. According to the plaint, the plaintiff had been making enquiries from the defendant as to what had happened to her loan application, but the latter had been putting her out saying that her loan application was yet under consideration. About a month prior to December 14, 1965, the date of the plaint, she made enquiries and was informed that the letter, dated April 1st which she had signed was in tact a letter for transferring the plot from her name to that of the defendant, and that the defendant, on the basis of the said letter, had managed to get a sale deed executed on June 7, 1962, by the Society in his name in respect of the plot in question. The plaintiff submitted that she was never informed by the defendant that the letter was a letter for transfer of the plot and the share held by her in that plot in the name of the defendant, that had she known the same she would never have signed the same, that her signatures were obtained by fraud/misrepresentation and concealment of real facts, and that she never intended to transfer the plot in favour of the defendant, and in. fact had nominated her other son, Jaidev Seth, as her nominee regarding the said plot. She asked the defendant to cancel the aforesaid sale deed and recognise her as the owner of the plo
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