SMT PREETI SETHI vs THE STATE AND OTHERS

$~12 & 13

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 09th January, 2024
+ CS(OS) 50/2016
DR PREETI SETHI AND OTHERS ….. Plaintiffs
Through: Ms. Pooja B. Soni, Advocate.

versus

SUSHEEL SETHI & ORS ….. Defendants
Through: Mrs. Inderjeet Saroop & Mr. Raghav Saroop, Advocates.
13
+ TEST.CAS. 5/2016 & I.A. 6581/2018
SMT PREETI SETHI ….. Petitioner
Through: Ms. Pooja B. Soni, Advocate.

versus

THE STATE AND OTHERS ….. Respondents
Through: Mr. Nitin Soni, Advocate for R-3 to R-6.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
I.A. 16022/2019 (u/O VI Rule 17 r/w Section 151 of CPC) in CS(OS) 50/2016

1. The present Application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC, 1908”) has been filed on behalf of the applicants/plaintiffs seeking amendment of the Plaint.
2. It is submitted in the application that the defendant No. 1 is the real brother of all the applicants/plaintiffs, who are the sisters and are the legal heirs of Late Smt. Sarla Sethi and Shri Surjit Sethi. The defendant No. 2 is the wife of defendant No. 1Susheel Sethi, their brother.
3. The defendant No. 2 has filed a Probate Case No. TEST.CASE 5/2016 titled Priti Sethi vs. State & Ors., in respect of a Will allegedly executed by Late Smt. Sarla Sethi, wherein the applicants/plaintiffs and the other defendants have been arrayed as defendant Nos. 3 to 6.
4. The applicants/plaintiffs, in the present Suit, have filed the Schedule-A which is the list of movable and immoveable properties left behind by Late Smt. Sarla Sethi, mother of the parties.
5. The applicants/plaintiffs submit that they want to make amendments in the list of movable properties as at the time of demise of Smt. Sarla Sethi, she held in her name about 50 FDRs with different Banks which are in the power and possession of both the both the defendants, especially defendant No. 1.
6. Further, Late Smt. Sarla Sethi was running a School under the name of Sunshine Public School (hereinafter referred to as “said School”) and the income therefrom was being generated.
7. The applicants/plaintiffs submit that the defendants were directed to file on record the original FDRs held by Late Smt. Sarla Sethi, along with a list as well as the latest status of FDRs.
8. A list of only 17 FDRs along with the photocopies had been filed, though the original FDRs were not filed. Also, the details of balance 33 FDRs had not been disclosed.
9. Furthermore, the three immovable properties of Late Smt. Sarla Sethi had been given on rent by the defendant No. 1 which are mentioned at Serial Nos. 3, 4 and 5 of list of immovable properties in Schedule-A annexed with the Plaint.
10. The applicants/plaintiffs thus, wish to incorporate Paragraphs-7 (a) and 7 (b) in the Plaint to plead the factum of income of Late Smt. Sarla Sethi from the said School as well as the income that accrued from renting of the immovable properties.
11. Further, the applicants/plaintiffs intend to incorporate in Paragraph-11 of the Plaint and in the Schedule-A under the heading of ‘Movable Properties of Late Smt. Surjit Lal Sethi and Late Smt. Sarla Sethi”.
12. Likewise, the applicants/plaintiffs seek permission to correspondingly amend the Paragraph-16 relating to Cause of Action and also the Prayer paragraph to include the relief of Rendition of Accounts. The applicants/plaintiffs also seek permission to amend the Schedule-A annexed along with the Plaint to incorporate the aforesaid properties movable and immovable as stated above.
13. The present application has been contested on behalf of the defendants who in their Reply have taken the preliminary objection that the present Suit for Partition is being tried along with the TEST.CAS. 5/2016 and both the cases were consolidated and common issues were framed on 22.12.2016. The evidence has commenced and at present D-4 is under cross-examination. The present Application under Order VI Rule 17 of CPC, 1908 is barred under its Proviso as neither sufficient reason has been given nor the inordinate delay has been explained.
14. As defendants were directed to lead evidence first in terms of the Order dated 22.12.2016, the evidence of fourth witness of the defendants, i.e.DW-4 is being recorded who is under cross-examination since 08.04.2019 and has been conducted at length on three dates. The matter was listed on 02.11.2019 for completion of cross-examination, but the adjournment was sought on behalf of the applicants/plaintiffs on the ground of being unwell. However, it was only a pretext as the present application has already been filed on 31.10.2019. The applicants/plaintiffs were thus trying to play the tricks which disentitle them from seeking any indulgence of this Court.
15. The defendants have taken a further objection that this Suit is confined to the Partition of the estates of Late Smt. Sarla Sethi and by way of present application the scope of present Suit is being enlarged which is not permissible in law. The amendments sought are based on different cause of action which do not stand in line with the original pleadings. The said School is not a party to the present Suit and no relief has been claimed against it; the entire application is an afterthought and lacks bona fide and it has been filed on the verge of the completion of the evidence of the defendants. Furthermore, it is asserted that this application is barred and is also barred under Order II Rule 2 of CPC, 1908.
16. The defendants have explained that the applicants/plaintiffs, who are the daughters of Late Smt. Sarla Sethi, had filed the Civil Suit No. 61765/2016 in the District Court in regard to the said School and no claim for rendition of accounts was made.
17. The present application is, therefore, barred under Order II Rule 2 of CPC, 1908 even otherwise, there is no business relationship between the parties to the Suit and hence, no rendition of accounts can be claimed by the applicants/plaintiffs.
18. The defendants have, without prejudice, explained that the said School is being run from the Property No. BU-68, Pitampura, Delhi, admeasuring 84 sq. meters. The said property was purchased by Late Shri Surjit Lal Sethi, who by way of his Will dated 07.09.1987, had bequeathed the entire property to his wife, Late Smt. Sarla Sethi who subsequently by her Will dated 14.09.2015 bequeathed the same to her grandchildren i.e., the defendant Nos. 3 and 4 herein.
19. Late Shri Surjit Lal Sethi had expressed his wish and desire that the said School should always be run from the aforesaid property without any payment of rent/licence fee. It was a gratuitous permission given by the owner of the said property to the said School to be run on permanent basis. The requisite Certificate written by Late Shri Surjit Lal Sethi is annexed as Annexure-B. It is submitted that pursuant to this, the work was executed of constructing rooms etc., for the purpose of running the said School. After the demise of Late Shri Surjit Lal Sethi, the defendant Nos. 3 and 4 are now the absolute owner of the said property on which the said School is being run.
20. It is further explained that the said School is only a Primary School upto Class V and is owned by Saral Gyan Prabhat Education and Cultural and Sports Society (Regd.), Late Smt. Sarla Sethi was only the Principal of the said School. It was never owned by her. The property of the Society can never vest in an individual. Therefore, the applicants/plaintiffs have no claim to the functioning and income of the said School. The amendments sought in respect of said School can, therefore, be not permitted.
21. The defendants have further explained that the Property No. BU-68, Pitampura, Delhi is not a shop but a place where the said School is being run by virtue of gratuitous licence of permanent nature and is irrevocable, therefore, no rendition of accounts can be claimed in respect of the property at Pitampura.
22. Furthermore, the properties mentioned in Paragraph-7(b) have been bequeathed to the defendant Nos. 3 and 4 who are the absolute owners after the demise of Smt. Sarla Sethi, the amendment, therefore, cannot be allowed.
23. The defendants have claimed that insofar as the FDRs are concerned, Late Smt. Sarla Sethi in her Will had mentioned the respective nominees in the bank accounts as to who would inherit the FDRs. The defendants have already placed on record the FDRs, which are in their possession, in TEST. CAS. 5/2016. The amendments sought in Paragraph-11 and in the Schedule-A of the Plaint, therefore, has no basis and is vague since there are no supporting document to show that the claimed FDRs are the movable properties belonging to Late Smt. Sarla Sethi. The amendment in support of FDRs, therefore, cannot be allowed.
24. It is asserted that the present application has been filed mala fide with the sole object to delay the disposal of the proceedings. Therefore, the present application is liable to be dismissed summarily.
25. On merits, all the averments made in the Plaint are denied and it is asserted that the present application is liable to be dismissed.
26. Submissions heard.
27. The applicants/plaintiffs have sought the amendment to include various FDRs about which they have come to know from the cross-examination of PW-4.
28. It is has also been explained by the applicants/plaintiffs that though the defendants in their Written Statement had asserted that the details of FDRs have been detailed in Annexure filed along with the Written Statement, but no such Annexure was filed. There is no denial that the Annexure giving the details of the FDRs was filed on 22.12.2016 at the time when the issues were framed. The plaintiffs have given an explanation for seeking amendment at this stage, after commencement of evidence.
29. The defendants has taken a plea that since Late Smt. Sarla Sethi had declared the nominees viz-a-viz., the FDRs in different Bank Account, the applicants/plaintiffs cannot make any claim. However, a nominee does not automatically become entitled to the money FDRs, but nominee is only a person who is authorized to receive the money. The other legal heirs are well within their right to claim a share in the subject properties.
30. Therefore, when the applicants/plaintiffs have been able to track the details of the FDRs subsequent to the framing of the issues and from the cross-examination of the witnesses examined on behalf of the defendants, the Proviso of Order VI Rule 17 of CPC, 1908 would not bar the applicants/plaintiffs for incorporating the details of the FDRs in the Plaint as well as in the Schedule-A in regard to the movable properties.
31. The specific documents were not in the knowledge and possession of the applicants/plaintiffs and thus, the applicants/plaintiffs have to be granted liberty to make the amendment in their Plaint to incorporate the details of the FDRs.
32. The second amendment sought by the applicants/plaintiffs is in regard to the income of Late Smt. Sarla Sethi by running the School at Pitampura property. The applicants/plaintiffs have asserted that Late Smt. Sarla Sethi was having an income from the running of the School and that the School is still been continuing and generating income.
33. It has been explained and clarified by the defendants that the School is being run as per the Rules for running the Schools. Rules 15 and 13 provide the school can be run only by the registered Society. The School is being run Saral Gyan Prabhat Education and Cultural and Sports Society (Regd.), free of charge to pursue its educational and other activities, as is evident from the Certificate dated 17.02.1998 that was issued by Late Shri Surjit Lal Sethi, who was the original owner of the property at Pitampura from which the said School was being run. It was further stated that the electricity and water connection for the said School’s building had been obtained by Late Shri Surjit Lal Sethi from the North Delhi Municipal Corporation and the bills were being paid by him.
34. The defendants have also placed on record the Certificate dated 10.12.2019 issued by the North Delhi Municipal Corporation certifying that the School was granted recognition by the Corporation vide its Resolution w.e.f. 2001 under the Management of Registered Society by the name of Saral Gyan Prabhat Educational Cultural and Sports Society.
35. The applicants/plaintiffs have neither filed any documents to corroborate that the said School was being run by Late Smt. Sarla Sethi or is being continued to be run by the defendants or that the family is getting any income from running of the school. Rather, the Certificates filed by the defendants by independent agency i.e., North Delhi Municipal Corporation clearly shows that the said School is being run by a registered Society. There is nothing to show that the defendants are earning any income from running of the said School.
36. It is also significant to observe that Civil Suit No. 61765/2016 filed in the District Court by the applicants/plaintiffs against the said School against the North Delhi Municipal Corporation in respect of alleged illegal and unauthorized construction carried out in the said School premises. The applicants/plaintiffs were thus, aware about running the said School from the property at Pitampura, Delhi, despite which no relief was claimed in respect of the alleged rental income or other income being generated from the said School. These facts were well within the knowledge of the applicants/plaintiffs since beginning.
37. In the same light, the applicants/plaintiffs have sought to seek relief of Rendition of Accounts in respect of the School, as already observed about the proposed amendment in respect of the said School has not been allowed. Therefore, the consequent relief for rendition of accounts in respect of the said School is also disallowed.
38. For the aforesaid reason, the amendment in respect of the School and its Rendition of Accounts, cannot be permitted.
39. Learned counsel on behalf of the defendants has also taken an objection to the Clause ‘J’ vide which the applicants/plaintiffs intend to insert gold and diamond jewellery items of Late Smt. Sarla Sethi as well as Bonds and Shares of various Companies in her name and her husband, Late Surjit Lal Sethi, which are in power and possession of defendant No. 1/Susheel Sethi. The applicants/plaintiffs have included the aforesaid Clause, but there is neither any other mention in their application nor have they given any justification or basis to assert that Late Smt. Sarla Sethi had gold and diamond jewellery.
40. The objection taken validly on behalf of the defendants as nowhere in the Plaint and in the amendment application, the applicants/plaintiffs have explained anything about the Bonds or shares or name of the banks. Only the bald assertion has been by the applicants/plaintiffs which cannot be permitted to be introduced in the Plaint by way of amendment.
41. Likewise, learned counsel on behalf of the defendants has taken the objection to insertion of Item ‘L’ in Paragraph-11 in respect of income generated from renting of the three properties of Late Smt. Sarla Sethi as mentioned at Serial Nos. 3 to 5 and Schedule-A annexed with the Plaint.
42. As already observed, there is not a single averment made by the applicants/plaintiffs anywhere that the three properties mentioned at Serial Nos. 3 to 5 were given on rent or that the rent was being taken by the defendants. Without there being any specific pleading to this effect, the proposed amendment by inserting Item ‘L’ in Paragraph-11 cannot be permitted. Therefore, the proposed Items ‘J’, ‘K’, ‘L’ and ‘M’ in Paragraph-11 are disallowed as being vague and not supported by any specific details.
43. To conclude, the applicants/plaintiffs are allowed to include the amendments in respect of the FDRs, the details of which have been mentioned in the various Items of Column No. 11, but other Items listed at ‘J’, ‘K’, and ‘L’ are hereby disallowed.
44. In view of above, the present application is disposed of.
CS(OS) 50/2016 & TEST.CAS. 5/2016
45. Amended Plaint be filed, to which amended Written Statement, if any be filed within two Weeks thereafter.
46. List before the Joint Registrar for completion of pleadings and for recording of the evidence of the witnesses of the defendants, on 25.04.2024.

(NEENA BANSAL KRISHNA)
JUDGE
JANUARY 9, 2024
S.Sharma

CS(OS) 50/2016 & TEST. CAS. 5/2016 Page 10 of 10