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2016 Supreme(Del) 222
IN THE HIGH COURT OF DELHI
VALMIKI J. MEHTA, J.
MANU MARKANDE & ANR - Petitioner
Versus
THE STATE & ORS - Respondents
TEST.CAS. 51/2010
Decided on : 14.01.2016
Mr. Rajiv Aneja, Adv.
Ms. Anusha Ojha, Adv. for R-1.
Mr. Vipin Kumar Gupta and Mr. Birjesh Singh, Advocates for R-4 with R-4 in person.
Courts do not examine the merits of the matter at the stage of deciding the amendment application. The plea of time-barred suit due to the Will date and mutation was disallowed as it was impermissible in law.
Headnote:
Amendment - Testamentary Case - CPC 6 Rule 17 - Family agreement dated 11.10.1993, Will dated 16.8.2000 - The court allowed the amendments sought by respondent nos. 3 and 4 to introduce pleas related to the family agreement and the Will, but disallowed the plea of time-barred suit due to the Will date and mutation in 2001.
Fact of the Case:
The petitioners, as Class-I legal heirs, sought letters of administration to the properties of their maternal grandparents. Respondent nos. 3 and 4 sought to amend their written statement to introduce pleas related to a family agreement and a Will, and to claim time-barred suit due to mutation in 2001.
Finding of the Court:
The court allowed the amendments related to the family agreement and the Will, but disallowed the plea of time-barred suit due to the Will date and mutation in 2001.
Issues: Amendment of written statement, time-barred suit, validity of family agreement and Will
Ratio Decidendi: Courts do not examine the merits of the matter at the stage of deciding the amendment application. The plea of time-barred suit due to the Will date and mutation was disallowed as it was impermissible in law.
Final Decision: Amendments related to the family agreement and the Will were allowed, but the plea of time-barred suit due to the Will date and mutation in 2001 was disallowed.
I.A.No.21049/2014(U/o 6 Rule 17 CPC by R-3 and 4)
1. Petitioners who are the son and daughter of late Smt. Suraksha Markande claim letters of administration to the properties of their maternal grandparents Sh. Pyare Lal Sharma and Smt. Shanta Sharma. The mother of the petitioners Smt. Suraksha Markande expired on 16.3.1999 i.e before the death of the grandfather and the grandmother who expired on 20.8.2000 and 10.12.2000 respectively. Essentially the petitioners claim rights as Class-I legal heirs to the properties of their maternal grandparents and for which purpose this testamentary case seeking letters of administration has been filed.
2. By this application for amendment respondent no.3 and 4 in the petition seek amendment of their written statement to add the following pleas/stands:-
(i) The mother of the petitioners Smt. Suraksha Markande had in her life time executed a family agreement dated 11.10.1993 whereby the mother Smt. Suraksha Markande had waived of her rights in the property bearing no.C-113, Naraina Vihar, New Delhi. It is contended that on account of the negligence of the earlier counsel this most important plea was not taken earlier. This plea which is now sought to be raised is supported by filing the original agreement dated 11.10.1993 executed by Smt. Suraksha Markande.
(ii) Late Sh. Pyare Lal Sharma the grandfather died leaving behind his Will dated 16.8.2000 as per which the petitioners received a sum of Rs.1 lakh each and gave up of their rights in the properties of their grandparents. Accordingly, the written statement is sought to be amended with other related facts that on account of the Will dated 16.8.2000 of late Sh. Pyare Lal Sharma, petitioners have no rights to the properties of the grandparents.
(iii) The petition for letters of administration is pleaded to be barred by limitation as the period of limitation is 3 years with respect to the probate case and thus this letters of administration case which has been filed in the year 2010 is time barred as the Will of late Sh. Pyare Lal Sharma is dated 16.8.2000.
(iv) The petition is also barred by limitation because the respondent nos. 3 and 4 had got mutated the suit property in their names in the year 2001 and the claim of the petitioners to the suit property is hence time barred.
3. Learned counsel for the petitioners has very vehemently opposed the amendments which are sought, by arguing that there is considerable delay in filing of the present amendment application which has been filed in the year 2014 although the suit was filed 4 years back in 2010. It is also argued that the family agreement dated 11.10.1993 relied upon by the respondent nos. 3 and 4 is a forged and fabricated document and that the Will dated 16.8.2000 of late Sh. Pyare Lal Sharma is also a forged and fabricated document.
4. It is trite that at the stage of deciding the amendment application courts do not very minutely examine the merits of the matter because by allowing an amendment only a case is allowed to be set up and it is not that the case as is allowed to be set up by amendment is believed by the court. Whether the case as stated in the amendment application sought to be introduced is correct or not, will be a subject matter of decision in the suit, and merits will be decided after framing of issues and leading of evidence at the stage of final arguments in the suit. Courts ordinarily therefore do not look at the merits of the amendment sought unless and until the merits categorically show such a gross amount of malafides for the amendments sought being disallowed. If two views are possible with respect to a particular plea and a document, courts will ordinarily allow parties who have committed mistake in the conduct of their cases to rectify the mistake by allowing amendment of pleading to add the plea, subject of course to the other side being monetarily compensated. Also, it is settled law that amendment of a written statement is to be more liberally all
