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2014 Supreme(Del) 10
High Court of Delhi
THE HONOURABLE MR. JUSTICE MANMOHAN SINGH
Salma Wasil
Versus
Nazar Shamsie & Another
CM(M) No. 392 of 2013 & CM No. 5937 of 2013
Decided On : 02-01-2014
Advocate Appeared:
For the Petitioner:M. Salim, Advocate.
For the Respondent:R2, Bharat Bhushan Jain, Advocate.
Headnote:
Amendment - Civil Procedure - Order 6 Rule 17, Section 151 CPC - 2002 (61) DRJ 401 (DB), 1966 (1) SCR 796, (2013) 9 SCC 349, (2013) 9 SCC 485 - The court discussed the application for amendment of the written statement under Order 6 Rule 17 read with Section 151 CPC seeking to retract crucial admissions. The court referred to legal provisions and held that a party cannot be allowed to set up a new case or resile from admissions made in the original written statement. The amendment sought was considered belated and an afterthought, contrary to the proviso of Order 6 Rule 17 CPC, and was dismissed as false and frivolous.
Fact of the Case:
The petitioner sought to amend the written statement to retract crucial admissions regarding the possession and gift of the suit property. The trial court dismissed the application, stating that the admissions in the original written statement were clear and unambiguous.
Finding of the Court:
The court found that the application for amendment was false and frivolous, filed to drag the trial and harass the respondent. The court held that the amendment sought was contrary to the proviso of Order 6 Rule 17 CPC and dismissed the petition with costs.
Issues: The issues revolved around the application for amendment of the written statement, the retraction of crucial admissions, and the possession and gift of the suit property.
Ratio Decidendi: The court held that a party cannot be allowed to set up a new case or resile from admissions made in the original written statement. The amendment sought was considered belated and an afterthought, contrary to the proviso of Order 6 Rule 17 CPC.
Final Decision: The petition for amendment was dismissed with costs of Rs. 10,000 to be deposited with the Prime Minister Relief Fund within four weeks.
Manmohan Singh, J.
1. By the impugned order dated 29th January, 2013, the application filed by the petitioner (defendant in the suit) under Order VI Rule 17 read with Section 151 CPC seeking amendment of the written statement was dismissed.
2. The petitioner sought the amendments in paras 4, 5, 7, 8, 8A, 8B, 15(ii) and 16 of the written statement. The reasons for rejecting the said application were given by the learned trial court in paras 3 to 5 of the impugned order. The same are read as under :
“3. In the earlier written statement, the defendant No.2 has clearly and specifically pleaded that the gift in favour of the plaintiff and the defendant No.1 by the defendant No.2 did not materialize as she (defendant No.1) did not accept the oral gift of half share of the suit property in her favour. She also admitted that the defendant No.2 could not deliver the physical possession of the whole of the property to the plaintiff and the defendant No.1. She also admitted that the CM (M) plaintiff and the defendant No.1 had been residing in the portions of suit property as licensee of the defendant No.2. She also admitted that the defendant No.2 was sole owner of the property.
4. Despite those clear and unambiguous admissions in the earlier written statement, now the defendant No.1 wants to retract from those admissions and the defendant No.1 now wants to take a stand that the gift is not denied but the intention of the gift was not complied with since mother of parties was also in possession of the suit property. She also wants to plead that only symbolic possession of the suit property was transferred by the defendant No.2 in pursuance of the oral gift. She also wants to plead that the plaintiff and the defendant No.1 are residing in the suit property with their respective families. She now wants to plead the plaintiff and defendant No.1 became joint owner of the suit property after the defendant No.2 gifted the suit property under oral gift to them. She also wants to now plead that after the death of mother, the plaintiff and the defendant No.1 remained in joint possession of the suit property.
5. A perusal of the application would show that vide the present application for amendment, the defendant No.1 is seeking to retract crucial and important admissions made in the suit. For that reason alone, the application cannot be allowed.”
3. The facts of the matter are that the respondent No.2 herein purchased the suit property from his father Sh.S.M. Shamsie vide registered sale deed in June 1992 and from then onwards the answering respondent No.2 is owner in possession of the suit property till now.
4. In or about 1992 the respondent No.1 herein requested the respondent No.2 to gift the suit property to him and the respondent No.2 said that he will consider the request, however, that talks never materialized as the possession of the property remains with the respondent No.1 all the time.
5. The sister of the respondent No.2 never wanted to accept the gift of the suit property at all and after that respondent No.2 changed his mind and kept the property with himself only.
6. The mother and sister of respondent No.2 was living with the respondent No.2 in the suit property and respondent No.2 stayed in the suit property whenever he was in Delhi and the possession of whole property remains with the respondent No.2 and at no point of time it has been delivered to the petitioner and respondent No.1.
7. The respondent No.2 has allowed the plaintiff/respondent No.1 herein to stay in the suit property as licensee alongwith the family, however in return of the favours done by the respondent No.2, the plaintiff/respondent No.1 is trying to grab the suit property by making false and fictitious stories of oral gift of the suit property.
8. Due to ill-will and with intention to grab the suit property, the respondent No.1 filed suit for partition in or about 1995, inter-alia, claiming himself the owner of share of suit property on the basis of oral gi
