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DELHI HIGH COURT
Manmohan Singh, J.
Sunil Gupta —Plaintiff
versus
Nargis Khanna —Respondent
I.A.Nos.12251 of 2014 and I.A.No.21133 of 2014 in CS(OS) No.149 of 2011
Decided on 10.3.2015
(B) Civil Procedure Code 1908, Order 1 Rule 10- Impleading of a party in partition suit- The plaintiff sought impleading of DDA and brother of defendant, as defendants- The suit property was given by DDA under perpetual lease- Therefore DDA was necessary as well as proper party to the case. (Para 36)
Facts of the Case
The suit property belongs to one Jagan Gopal who died in 2001 and during his life time he was residing in the suit property and was survived by his wife his son and married daughter. By his will said Jagan Gopal bequeathed his property in favour of his wife. After his death his wife let out first and second floor while the she continued to reside on the ground floor. She died in the year 2005 living behind her son and daughter to whom she bequeathed the property in equal share by her will. Son of deceased Jagan Gopal sold his 50% share to other persons and in the sale deed it was shown by the son that he was absolute owner and was entitled to specific ½ share which was impartible. Subsequently the said property was sold to plaintiff who filed suit for partition. It was contended that the plaintiff was not entitled to joint possession. In the application under Order 6, Rule 17 the plaintiff sought permission to amend the title and to add some paras in the plaint and also sought amendment in the value of the suit, alleging that it will not cause any prejudice to the defendants as the amendment sought was based on subsequent events.
Findings of the Court
As per law, ordinarily, if he other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs t the opposite side and basic principles which ought to be taken into consideration while allowing or rejecting the application for amendment are:
(i) whether the amendment sought is imperative for proper and effective adjudicating of the case;
(ii) whether the application for amendment is bonafide or malafide;
(iii) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(iv) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(v) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case. As a general rule the court should decline the amendment if the fresh suit on the amended claim would be barred by limitation, however keeping in mind the important question of the case, the amendment allowed.
Result: Appeal allowed.
Manmohan Singh, J. —This is a suit for partition filed by the plaintiff against the defendant in respect of the property bearing No. N-47, Panchsheel Park, New Delhi- 110017 (hereinafter referred to as the “suit property”). By this order, I propose to decide the pending applications, i.e.:-
(i) I.A. No.12251/2014 (under Order I Rule 10 CPC read with Section 151 CPC, filed by the plaintiff)
(ii) I.A. No.21133/2014 (under Order VI Rule 17 read with Section 151 CPC, filed by the plaintiff)
2. Brief facts for the purpose of adjudication of these applications are that the suit property belonged to one Shri Late Jagan Gopal Dewan who died on 27th April, 2001. Till the time of his death, Shri Late Jagan Gopal Dewan used to reside in the suit property. He was survived by his wife Amrit Kala Dewan, his son Prem Kumar Dewan and his married daughter Nargis Khanna, defendant herein.
3. By virtue of his last Will and Testament dated 9th December, 1972, Shri Late Jagan Gopal Dewan bequeathed the suit property to his wife Amrit Kala Dewan. While Amrit Kala Dewan let out the first and the second floor of the suit property, she continued to reside on the ground floor of the suit property. Amrit Kala Dewan also died on 12th November, 2005 leaving behind her son and daughter to whom she bequeathed the suit property in equal share by virtue of her Will and Testament dated 6th October, 2004.
4. Though the Will dated 6th October, 2004 laid down as to how the suit property is to be divided amongst Prem Kumar Dewan and Nargis Khanna, both of them after the death of their mother felt that it was not practical to partition the suit property in the manner provided in the Will dated 6th October, 2004. Accordingly, Prem Kumar Dewan and Nargis Khanna entered into a Memorandum of Settlement dated 24th November, 2005 by virtue of which they agreed that each of them will have 50% undivided share in the suit property.
5. Prem Kumar Dewan who had been residing with his family in Kolkata and also had his business in Kolkata, sold his 50% undivided share in the suit property by virtue of sale deed dated 23rd June, 2008 to two persons namely, Mr. Suneet Seth and Mr. Sunil Gupta, plaintiff herein.
6. It is averred by the plaintiff that in the said sale deed, it was represented by Prem Kumar Dewan that he was the absolute owner/ sub-lessee and was otherwise well and sufficiently entitled to one half unspecified, undivided, indivisible and impartible sub-lease hold right in the entire suit property. Further, he was in exclusive physical possession of the entire second floor and terrace over and above the second floor and entire driveway adjoining property No.45 which he had acquired by means of Will dated 6th October, 2004 and Family Settlement dated 24th November, 2005 and he is fully entitled to sell, dispose of and transfer his one half share in the suit property.
It is further averred that it was represented by Prem Kumar Dewan that the tenants of the first floor of the suit property had not vacated the same after expiry of the lease period and so a declarative suit in respect thereto had been filed wherein status quo orders had been passed.
7. It is stated that Mr. Suneet Seth who had purchased 1/3rd of one half undivided share in the suit property, sold his entire share to the plaintiff. The plaintiff thereby became the exclusive owner of the one half undivided share of the suit property. The possession of the entire second floor and terrace over and above the second floor and one of the driveways leading to and meant only for the first and the second floor of the suit property, was given by Prem Kumar Dewan to the plaintiff.
8. It is the case of the plaintiff that defendant herein filed a civil suit No. 325/2009 under Section 44 of the Transfer of Property Act against the purchasers i.e. Mr. Suneet Seth and the plaintiff herein alleging that the purchasers are not entitled to joint possession or enjoyment of the suit property belonging to an undivided family bec
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