SATNAM SINGH SALUJA vs INDERBIR SINGH SALUJA & ORS.

2024-08-07 Information

$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 07.08.2024

+ CS(OS) 399/2019 & I.A. 16843/2019
SATNAM SINGH SALUJA …..Plaintiff
Through: Mr.Ravi Kapoor, Ms.Gauri Puri, Mr.Rishab Ambastha, Ms.Aditi Gupta, Advs.
versus

INDERBIR SINGH SALUJA & ORS. …..Defendants
Through: Mr.Nishchal Joshi, Adv. for D-1 with D-1 in person.

CORAM:
HON’BLE MR. JUSTICE NAVIN CHAWLA

NAVIN CHAWLA, J. (ORAL)

I.A. 3307/2021 & I.A. 17673/2023
1. I.A.3307/2021 has been filed by the defendant no.1 praying for the striking off/taking off of the record the Amended Plaint filed by the plaintiff in purported compliance with the permission granted by this Court vide order dated 07.02.2020 passed in I.A. 1762/2020.
2. The defendant no.1 claims that by the order dated 07.02.2020, this Court while partially allowing the said application, that is, I.A. 1762/2020, filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure, 1908, further directed that if the plaint as directed is filed with any other changes than what has been allowed, the amendment shall deem to be declined and the plaintiff shall not be allowed to carry out the said amendment in the plaint. The defendant no.1/applicant complains that as the Amended Plaint makes the amendments which were not allowed by the Court vide order dated 07.02.2020, the Amended Plaint be struck off from the record in terms of the said order.
3. Realizing the above mistake, the plaintiff has filed an application, I.A.17673/2023, now seeking to remove the certain unauthorized amendments made in the Amended Plaint, while at the same time, seeking permission of this Court to further amend the plaint. It is explained that the amendments now sought to be made are in conformity with what was allowed by this Court vide its order dated 07.02.2020 and to give effect to it.
4. To appreciate the above contentions, the order dated 07.02.2020 passed by this Court would require a detailed reference. In paragraph 3 of the said order, the Court culled out the amendment that was sought to be made by the plaintiff by filing the application I.A.1762/2020. The same is reproduced herein below:
3. The senior counsel for the defendant No.l has argued, (i) that the ground floor of property No.73, Anand Lok, New Delhi was acquired vide Sale Deed dated 17th November, 1996 whereunder the defendant No.l had 50% share and the father of the parties had 50% share; (ii) that the defendant
No.l executed and registered a Gift Deed dated 9th September, 2005 of his 50% share in the property in favour of the mother of the parties; (iii) that the defendant No. 1 subsequently filed a suit for declaration as null and void of the Gift Deed executed by him in favour of the mother and in which suit, the father of the parties appeared as attorney of the mother and consented and the decree impugned in this suit was granted; (iv) that the defendant No.1 in his written statement disclosed that the father of the parties had also executed and registered a Gift Deed dated 15th December, 2017 of his 50% share in the property in favour of the wife of the defendant No.1; (v) that the plaintiff now by way of amendment wants to impugn the Gift Deed executed by the father of the parties in favour of wife of the defendant No.1; (vi) that besides the aforesaid amendment, the plaintiff also seeks partition of a property at Kanpur and a property at Lucknow; (vii) that as per the plaintiff also, the property at Kanpur is of the partnership; and, (viii) that the plaintiff by way of amendment also seeks accounts of another property at Bombay, lease whereof was in favour of a trust, beneficiary whereof was the mother of the parties and prior to the demise of the mother, the lease of the said property was surrendered.

5. A reading of the above would show that the plaintiff primarily sought to challenge the purported Gift Deed dated 15.12.2017 executed by the father of the plaintiff in favour of the wife of the defendant no.1, and seeks partition of the properties at Kanpur and Lucknow in addition to the property at Delhi.
6. This Court by its order dated 07.02.2020, allowed the plaintiff to make the amendment pertaining to the challenge to the Gift Deed dated 15.12.2017 executed by the father of the plaintiff in favour of the wife of the defendant no.1.
7. This Court also allowed the plaintiff to make the amendment to seek partition of the property at Lucknow.
8. This Court, however, declined the prayer of the plaintiff to seek partition of the property at Kanpur which belongs to the Partnership Firm, observing that it would be a separate cause of action.
9. As far as the property in Bombay is concerned, this Court passed the following order:
10. As far as the Bombay property is concerned, with respect to which only accounts are claimed, the counsel for the plaintiff controverts that the lease was surrendered in the lifetime of the parents. If any accounts are to be settled with respect to the said property, the cause of action therefor
would also be the same but for the benefit of the mother.

10. This Court while allowing the above limited amendment to be made in the plaint, categorically directed as under:
14. The plaintiff to file amended memorandum of parties and amended plaint as permitted above, on or before 20th February, 2020. If no plaint as directed is filed or if any other changes are made in the amended plaint than what has been observed above, the amendment allowed shall be deemed to have been declined and the plaintiff shall not be entitled to carry out the same amendments in the plaint.

11. The plaintiff in purported compliance with the relief granted to the plaintiff by the above order, filed an Amended Plaint, admittedly carrying out unauthorized amendments in the plaint. The unauthorized amendments in the plaint were primarily making a reference to a purported bank account with Punjab and Sind Bank, Kailash Colony, New Delhi in the name of the family firm- M/s Chanan Devi & Co. being added. The amendment was further to clarify that the partition is claimed amongst the plaintiff and defendant nos.2 to 7. In addition, claims for rendition of account and permanent injunction were prayed for. The plaintiff also unauthorizedly amended the plaint with respect to the valuation of the suit and cause of action for filing of the same.
12. The defendant no.1, therefore, filed an application, being I.A.3307/2021, praying that the amended plaint be struck off the record in terms of the order dated 07.02.2020 and, seeking a direction to the plaintiff to file amended plaint in consonance with what was permitted by the order dated 07.02.2020.
13. Realising its fault, the plaintiff, on 15.02.2023, prayed to the Court for liberty to move an amendment application.
14. This Court, vide its order dated 15.02.2023, while granting such liberty, reserved the rights of the defendant to raise all objections as may be permissible in law.
15. With this liberty, the plaintiff has now moved the amendment application- I.A.17673/2023.
16. In this application, the plaintiff seeks to delete from the amended plaint the reference to the bank account of M/s Chanan Devi & Co., that was unauthorizedly added earlier. The plaintiff further prays for permission to amend the plaint to also include the amendments made in the prayer clause, the valuation paragraph, and the cause of action paragraph.
17. The learned counsel for the plaintiff submits that with respect to the prayer clauses in the plaint of which the amendment is sought, the same do not, in any manner, change the cause of action of the suit and flow from the main prayer made in the suit. He further submits that the amendments in the valuation paragraph and jurisdiction paragraph are also sought to be made because of a technical mistake that was made in the original plaint and, to obviate any later complication arising therefrom.
18. On the other hand, the learned counsel for the defendant no.1 submits that the present application, that is, I.A.17673/2023, is not maintainable as it seeks amendment to a plaint which is otherwise struck off the record in view of the order dated 07.02.2020. He further submits that by the present amendment, even otherwise, the plaintiff is now seeking to add the challenge to the Gift Deed dated 15.12.2017 executed by the father of the plaintiff in favour of the wife of the defendant no.1, which would be a separate cause of action and cannot be added to the present suit for partition. It will also change the nature of the suit. He further submits that the order dated 07.02.2020 was very clear that in case the plaintiff makes any unauthorised amendment to the plaint, the order granting permission to amend the plaint would itself be withdrawn and shall be of no effect. He submits that the plaintiff, therefore, has lost its right to seek amendment to the plaint.
19. I have considered the submissions made by the learned counsels for the parties.
20. As is reflected from the order dated 07.02.2020, while granting liberty to the plaintiff to make the limited amendments to its plaint, this Court had also clarified that in case the amended plaint is not filed on or before 20.02.2020 or contains any change which was not otherwise allowed by the Court, the amendment allowed by the Court by the said order shall be deemed to have been declined and the plaintiff shall not be entitled to carry out the same amendment in the plaint. The plaintiff admittedly made some unauthorized amendment in the plaint while filing its amended plaint. Therefore, the plaintiff would no longer be entitled to take benefit of the order dated 07.02.2020. The defendant no.1 immediately brought this to the notice of the Court by way of application being I.A. 3307/2021. The plaintiff on being confronted with the same, has now filed an application seeking to amend the amended plaint, which was otherwise deemed to have been struck off the record. IA 3307/2021 is therefore, allowed.
21. In the present case, the plaintiff has clearly been lax in proceeding with the suit; first by making an unauthorized amendment in the plaint, and then instead of amending the original plaint, seeking amendment to the amended plaint which is still not taken on record and, in fact, in terms of the order dated 07.02.2020 is to be struck off the record.
22. At the same time, it is settled law that matter of procedure should not be allowed to defeat the substantive right of a party. This Court had already found favour with the plaintiff making certain amendment to its plaint and granted such permission in the order dated 07.02.2020. Though the amended plaint was to be filed within the fixed time schedule and is deemed to have not been filed within such time, the plaintiff can be allowed to make those amendments albeit with exemplary costs to the defendant for the delay that has been caused. These amendments, as noted above, were to be confined to the addition of challenge to the Gift dated 15.12.2017 allegedly of the father of the plaintiff, the claim of partition of the property at Lucknow, and the claim for rendition of accounts for the property at Bombay.
23. As far as the fresh amendments are concerned, I find that the same are primarily flowing from the amendments that were already allowed to the plaintiff by the order dated 07.02.2020. They are more clarificatory in nature and should be allowed.
24. With respect to the plea of the defendant no.1, that the relief against the Gift Deed dated 15.12.2017 executed by the father of the plaintiff in favour of the wife of the defendant no.1 cannot be claimed in the present suit, and the present suit by its inclusion would in fact create mis-joinder of the causes of action and parties, the said plea can be considered only on receiving the say of the defendant nos.1 and 8. As noted above, this court in its order dated 07.02.2020, by consent of the learned counsel for the defendant no.1, had already allowed the plaintiff to amend the plaint by adding a challenge to the said Will. This Court, therefore, cannot revisit the said issue. However, it is clarified that objection, if any, to the inclusion of this claim in the present suit, would not bar the wife of the defendant no.1, who has now been impleaded as defendant no.8 in the suit.
25. In view of the above, I.A. 3307/2021 is disposed of while I.A.17673/2023 is allowed subject to the plaintiff paying costs of Rs.50,000/- to the defendant no.1 within a period of two weeks from today.
26. Subject to the compliance with the above condition, the Amended Plaint is taken on record. The earlier filed Amended Plaint be removed from the record.

CS(OS) 399/2019 & I.A. 16843/2019
27. Let written statement to the Amended Plaint be filed by the defendants within the prescribed period.
28. The learned counsel for the plaintiff informs that he has been served with a copy of the written statement filed by the defendant no.8 to the Amended Plaint which has today been ordered to be taken off the record. The same shall not be relied upon, and the defendant no.8 shall be at liberty to file fresh written statement to the Amended Plaint which is now taken on the record.
29. Replications to the written statement shall be filed by the plaintiff within the prescribed period.
30. List on 23rd October, 2024 before the learned Joint Registrar (Judicial) for completion of the pleadings, who shall, after completing the pleading and admission/denial of documents, place the Suit before the Court.

NAVIN CHAWLA, J
AUGUST 7, 2024/Arya/AS
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CS(OS)399/2019 Page 9 of 9