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2013 Supreme(Del) 1105
High Court of Delhi
HIMA KOHLI
M/s. Sunshine India Pvt. Ltd.
Versus
Bhai Manjit Singh(Huf) & Others
IA Nos. 8859 of 2012 & 17901 of 2011 in CS(OS) 2501 of 2011
Decided On : 03-09-2013
For the Plaintiff:P.V. Kapur, Sr. Advocate with Sudhir Makkar, Aman Anand, Sidhant Kapur, Advocates.
For the Defendants:D1 & D3, Arvind Nigam, Sr. Advocate with Arun Arora, D2 & D4, Amit Sibal, Alok K. Aggarwal, Apoorv Karup, D5, Pratyush Sharma, Ms. Sadhana Sharma, Jatan Singh (CGSC), Tushar Singh, Jaswinder Singh, Vivek Sood, ASC for NDMC with Ms. Janhavi Mahane, Advocates.
Headnote:
The court allowed the plaintiff's application to amend the plaint and implead the L&DO as a co-defendant in a suit for specific performance of an agreement to sell. The court held that the amendments were necessary to determine the real controversy between the parties and would not cause any prejudice to the defendants. The court also held that the L&DO was a proper party to the suit as it had a direct interest in the property in dispute.
Fact of the Case:
The plaintiff, a company, had entered into an agreement to sell a property with the defendants. The plaintiff had filed a suit for specific performance of the agreement and also sought a declaration that the defendants' act of cancelling the power of attorney executed in favor of the plaintiff was null and void. The plaintiff also sought an injunction restraining the defendants from selling or transferring the property to any third person. The defendants had filed a written statement denying the plaintiff's claims. The plaintiff then filed an application to amend the plaint and implead the L&DO as a co-defendant. The defendants opposed the application.
Finding of the Court:
The court held that the amendments proposed by the plaintiff were necessary to determine the real controversy between the parties and refusing them would in fact lead to multiplicity and prolongation of the litigation, which is avoidable. Neither shall the proposed amendments cause any prejudice to the defendants, who shall have the opportunity to meet the case of the plaintiff company in their written statements, nor do the proposed amendments amount to substituting one cause of action for another, much less result in altering the very nature/character of the suit.
Issues: Whether the plaintiff could amend the plaint to include additional claims and implead the L&DO as a co-defendant.
Ratio Decidendi: The court held that the amendments were necessary to determine the real controversy between the parties and would not cause any prejudice to the defendants. The court also held that the L&DO was a proper party to the suit as it had a direct interest in the property in dispute.
Final Decision: The court allowed the plaintiff's application to amend the plaint and implead the L&DO as a co-defendant.
Hima Kohli, J.
1. The plaintiff company has filed I.A.No.8859/2012 under Order VI Rule 17 of the Code of Civil Procedure (for short ‘the Code’) praying inter alia for permission to amend the plaint by incorporating fifteen paragraphs, after the existing para 27 of the plaint, by substituting the cause of action para with paras 28-A to 28-C and the existing para 30 pertaining to court fees and jurisdiction with the proposed para 30 and finally, by asking for additional relief and adding two prayer clauses, i.e., prayer clauses (C-1) and (C-2). In I.A.No.17901/2011 filed by the plaintiff under Order 1 Rule 10 C.P.C., permission has been sought to implead L&DO and NDMC as defendants No.6 & 7 in the memo of parties.
2. As the present case has a chequered history, a brief reference to the relevant facts leading to filing of this application by the plaintiff, is considered necessary.
3. On 27.9.2011, the plaintiff company had instituted the present suit against the defendant No.1[Bhai Manjit Singh(HUF)], defendant No.2 (Mrs.Maheep Manjit Singh), defendant No.3(Mr.Vikram Jeet Singh), defendant No.4(Mr.Mohan Jeet Singh) and defendant No.5(Bhai Manjit Singh) praying inter alia for the relief of specific performance of an Agreement to Sell dated 29.7.2005 (hereinafter referred to as ‘the Agreement’) in respect of premises bearing No.61, Golf Links, New Delhi (hereinafter referred to as ‘the suit premises’) by directing the defendant No.1/HUF to execute the sale deed/conveyance deed in its favour after the suit premises is converted from leasehold to freehold. Besides the above, the plaintiff company has prayed for a decree of declaration that the act of the defendant No.1/HUF of cancelling the power of attorney dated 12.8.2005 executed by her on behalf of the defendant No.2, in favour of Sh.Abhay Aggarwal (Director of the plaintiff company), be declared as null and void and for the relief of mandatory injunction, directing the defendants to take steps to have the suit premises converted from leasehold to freehold.
4. The plaint was registered as a suit on 12.10.2011 and summons were issued to the defendants, returnable on 1.12.2011. On the application filed by the plaintiff company for interim relief (IA No.16121/2011), the defendants were restrained from selling, transferring or alienating the suit premises to any third person till further orders. Within one month from the date of issuance of summons in the suit, the plaintiff company had filed the following four applications:-
(i) IA No.17899/2011 under Order VI Rule 17 of the CPC for permission to amend the suit.
(ii) IA No.17900/2011 under Section 80(2) of the CPC for leave to maintain the suit against UOI.
(iii) IA No.17901/2011 under Order I Rule 10 of the CPC for impleading L&DO and NDMC as defendants in the suit.
(iv) IA No.17960/2011 under Section 151 of the CPC for issuance of directions to the L&DO to give a no objection to the plaintiff company to carry on construction of the suit premises.
5. Vide order dated 15.11.2011, notices were issued on the aforesaid applications to the non-applicants/defendants, as also to the proposed defendants in I.A. No.17901/2011, returnable on 1.12.2011. IA No.17899/2011 filed by the plaintiff under Order VI Rule 17 CPC was listed for hearing on 19.03.2012 and the said application was disposed of as not pressed with liberty granted to the plaintiff company to file an application giving subsequent events and the nature of the relief. The remaining applications mentioned hereinabove were adjourned to 17.5.2012.
6. The undisputed facts of the case are that in the records of the L&DO, the suit premises stands mutated in the name of the defendant No.1/HUF. On 21.1.2000, the defendant No.5 had executed a power of attorney in favour of one Mr.P.C.Joshi and Mr.M.Naryana Kutty. On 10.3.2000, a Memorandum of Family Settlement was executed by the members of the defendant No.1/HUF that included the defendants No.2 to 4 herein. On 29.7.200
