DR ANIL KUMAR BANSAL vs SH ASHOK KUMAR BANSAL & ANR

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 15th February, 2024
+ CS(OS) 68/2017
DR ANIL KUMAR BANSAL ….. Plaintiff
Through: Mr. R.K. Lamba, Advocate

versus

SH ASHOK KUMAR BANSAL & ANR ….. Defendants
Through: Mr. Kartikay Mathur and Mr. Shankar, Advocates for D-2 & 3
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
I.A. 4617/2023 (under Order 6 Rule 17 read with Section 151 CPC for amendment of the plaint)

1. The application under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”), 1908, has been filed on behalf of the plaintiffs (transposed from being defendant Nos. 5 and 6), seeking amendment of the plaint.
2. It is submitted in the application that a suit for Declaration, Partition, Possession, Permanent and Mandatory Injunction, was filed by one Sh. Anil Kumar Bansal, maternal Uncle of the present plaintiffs, who were originally impleaded as defendant Nos. 5 and 6. Being defendant Nos. 5 and 6, they had filed the Written Statement and accepted the averments made by Sh. Anil Kumar Bansal in the plaint.
3. The original plaintiff Sh. Anil Kumar Bansal, moved an application under Order 23 Rule 1 CPC, for withdrawal of the suit while the present applicants moved an application under Order XXIII Rule 1A CPC, requesting to be transposed as the plaintiffs. The application was allowed vide Order dated 29.11.2019 and the original defendant Nos. 5 and 6, have been transposed as the present plaintiffs, while the name of Sh. Anil Kumar Bansal was deleted from the array of parties. The present plaintiffs have thus, moved the present application for amendment of the plaint.
4. It is submitted that the present plaintiffs had earlier also adopted the contents of the plaint, as was filed originally and no new facts are required to be inserted in the original plaint. However, the names of the transposed plaintiffs are now to be inserted in place of the earlier plaintiffs. The proposed amendments does not in any manner change the status or the submission of the original plaint and no new cause of action is sought to be inserted in the plaint. It is, therefore, submitted that in all the paragraphs of the plaint in respect of Sh. Anil Kumar Bansal, the nomenclature needs to be corrected.
5. The learned counsel on behalf of the defendant No.1 vide its Reply has contested the application filed on behalf of the plaintiffs. It is asserted that the applicants had earlier filed two IAs bearing Nos: 11320/2022 and 2357/2023, seeking amendment of the plaint which was very vague and were dismissed as withdrawn. The plaintiff has now filed third application for amendment of the plaint which again is very vague and has been filed without the amended plaint and also without the supporting annexure as mentioned in the application. It is thus, liable to be dismissed.
6. It is asserted that the application is not maintainable as the plaintiffs have not paid the requisite Court Fees for the relief of Declaration, Cancellation of three Sale Deeds dated 05.07.1996 in regard to the suit property. Further, ad valorem Court Fees has not been paid for the relief of Partition, as they are admittedly not in possession of the property.
7. Further, the applicants by way of amendment are trying to bring within the scope of the present Suit the reliefs which are hopelessly time barred. The documents for which the Declaration is sought, have been executed around 27 to 38 years ago and thus, the amendments are time barred.
8. It is also asserted that by way of the present amendments, the applicants are trying to change the nature of the case and are setting altogether a new defence. Therefore, the application is liable to be dismissed.
9. The learned counsel on behalf of the defendant No.2 and 3(a) to (c) vide their Reply has vehemently contested the application on similar grounds and it is asserted that under the garb of the present amendment application, the plaintiff intends to change the entire cause of action and incorporate the reliefs which were not contained originally in the plaint. It is submitted that the application is liable to be dismissed.
10. Reliance has been placed by the Counsels for defendants on the case of Revajeetu Builders and Developers v. Narainaswami & Sons 2009 (10) SCC 84; South Konan Distelleries v. Prabhakar Gajanan Naik (2008) 14 SCC 632 and Harish Relan v. Kaushal Kumari Relan and Ors. 2015 (216)0DLT 299.
11. The plaintiffs vide their Rejoinders to the Reply filed by the defendant No.1 and defendant No.2 and 3(a) to (c), have reiterated their assertions made in the Application.
12. Submissions heard.
13. The proposed amendments are sought to be made by the plaintiffs, who have been transposed from being defendant Nos. 5 and 6, in the plaint.
14. The original plaintiff in the present case, Sh. Anil Kumar Bansal was the maternal uncle of the applicants who had filed the present suit for Declaration, Partition, Possession, Permanent and Mandatory Injunction. The plaintiffs, who were earlier defendant Nos. 5 and 6, had supported the case of the then plaintiff in their Written Statement, and sought Partition of the property. Further, vide Order dated 29.11.2019, defendant Nos. 5 and 6 were allowed to be transposed as plaintiffs.
15. The original plaintiff vide IA No. 5768/2022 filed under Order 23 Rule 1 read with Section 151 CPC, sought for withdrawal of the Suit, which was disposed vide Order dated with the observation that the suit cannot be withdrawn as defendant Nos. 5 and 6 have been transposed as plaintiffs and the plaintiff No.1 can only be deleted from the array of parties.
16. Further, defendant Nos. 2 and 3 had expired during the pendency of the proceedings and accordingly, an application bearing No. 17245/2021 under Order XXII Rule 4 read with Section 151 CPC was filed on behalf of transposed plaintiffs for bringing on record LRs of defendant no.2 & 3 which was disposed of vide Order dated 13.05.2022. In respect of the defendant no.2, Mr. Ankur Bansal/defendant No. 2 (i) was impleaded as legal heir and in respect of the defendant no.3, Ms. Vandanda Bansal defendant No. 3 (iii), Mr. Aditya Bansal/ defendant No. 3 (i), and Ms. Akriti Bansal/ defendant No. 3 (ii), were impleaded as legal heirs.
17. A perusal of the application shows that the proposed amendment is only to correct the nomenclature describing the original plaintiff. Further, the newly impleaded LRs of defendant Nos.2 and 3 are mentioned where applicable; no other amendment is sought to be made in the original plaint. The amendment sought is in fact more of a clerical correction occasioned by the transposition of defendant Nos. 5 and 6 as the plaintiffs. Considering the nature of the amendments sought to be made, the same is allowed.
18. The amended plaint, if not on record, be filed within three weeks with copy to the opposite counsel.
19. Be placed before the learned Joint Registrar for completion of pleadings on 18.03.2024.

(NEENA BANSAL KRISHNA)
JUDGE
FEBRUARY 15, 2024/RS

CS(OS) 68/2017 Page 1 of 5