CM(M) 1030/2021

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 1^st June, 2022

Pronounced on: 4^th July, 2022

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CM (M) 1030/2021 & CM APPL. 40806/2021

MR. VIJAY GUPTA

..... Petitioner

Through:

Mr. Raman Gandhi, Adv.

versus

MR. GAGNINDER KR. GANDHI & ORS. ..... Respondents

Through:

Mr. Manish Makhija, Adv. for

R-1 & 2

CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR

J U D G M E NT

%

04.07.2022

1.

The learned Principal District and Sessions Judge (“the learned

Trial Court”, hereinafter) has, vide the impugned order dated 22^nd

October, 2021 in CS DJ 10306/2016 (Vijay Gupta v. Gagninder

Kumar Gandhi & ors), dismissed an application filed by the

petitioner, as the plaintiff in the suit, under Order VI Rule 17 of the

Code of Civil Procedure, 1908 (CPC), seeking to amend the suit.

Facts

2.

CS DJ 10306/2016 has been filed by the petitioner, as plaintiff,

against Respondents 1, 2 and 3 as Defendants 1, 2 and 3 therein. The

issue in controversy being the rejection of the petitioner’s application

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/002386

CM(M) 1030/2021

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for amendment of the suit, it is necessary to know, exactly, at the

outset, the case set up by the petitioner, as plaintiff.

The Plaint

3.

The present proceedings deal with a property situated at A-148,

Defence Colony, New Delhi-110024 (“thesuit property”). The

petitioner averred, in the plaint, that he had, vide sale deeds dated 11^th

July, 2001 and 7^th August, 2003, purchased the first and second floors,

as well as the terrace of the suit property from Sumitra Devi, the

mother of Respondent 3. The petitioner asserted that, while executing

the aforesaid sale deeds, Sumitra Devi had also executed an

undertaking on 11^th July, 2001, wherein she undertook that (i) neither

she, nor her legal heirs, would sell or transfer the ground floor of the

suit property, without giving the petitioner a first option of purchase

and (ii) in the event of sale by Respondent 3 or by her legal heirs of

the ground floor of the suit property to any person other than the

petitioner, the petitioner would have the right and authority to enjoy

the parking space in the rear side on the ground floor of the suit

property as its owner.

4.

Sumitra Devi died on 21^st April, 2012, intestate, resulting in

Respondent 3, his brother and his seven sisters becoming co-owners,

by succession, of the ground floor of the suit property. The seven

sisters and their brother having relinquished their undivided share in

the ground floor of the suit property, with all rights, title, interest and

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/002386

CM(M) 1030/2021

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privileges, in favour of Respondent 3, Respondent 3 became the

absolute owner of the ground floor of the suit property.

5.

The plaint alleged that, in violation of the undertaking given by

Sumitra Devi on 11^th July, 2001, Respondent 3 executed a sale deed,

dated 26^th August, 2014, in respect of the suit property, in favour of

Respondents 1 and 2, which included the rear side parking area. The

petitioner asserted, in para 10 of the plaint, that Respondent 3 was

“bound to specify in the sale deed dated 26.08.2014 executed by him

is the owner of the suit property in favour of the defendant No. 1 and 2

that plaintiff is the owner of the parking space on the rear side of the

suit property”. Para11 of the plaint complained that “defendant No. 1

and 2 being not the party to the undertaking dated 11.07.2001

executed in favour of the plaintiff by the then owner of the suit

property who happens to be the mother of the defendant No. 3 are not

allowing the plaintiff to use the parking space in the rear side of the

suit property as the owner”. Thus, alleges para 13 of the plaint, “the

legal right of the plaintiff in the rear side of the parking space on the

ground floor of the property to use t