Jayant Nath, J
IA No.10300/2018
1. This application is filed under Order 6 Rule 17 CPC read with Order 1 Rule 10 CPC and section 151 CPC seeking amendment of the plaint and for
addition of defendants No.3, 4 and 5 as parties to the suit. The accompanying suit is filed for decree of partition of immovable property being F-8,
Geetanjali Enclave, New Delhi-110017 by metes and bounds to claim the share of the plaintiff as 50%.
2. In this application for amendment it is stated that defendant No.1 has filed written statement and stated that the parents of the parties to the family
settlement are necessary and proper parties. Hence, defendants No.3 and 4 parents of the parties are sought to be impleaded as parties. It is further
pleaded that proceedings were pending before DRT where there was a stay order against the proposed defendant No.3 from selling, alienating,
transferring, encumbering or parting with possession of the property mortgaged with defendant No.2 bank. The father of the parties are said to have
on 21.12.2017 sold the suit property in favour of one of the neighbours Ms.Usha Bansal/proposed defendant No.5. It is stated that this is in utter
disregard and violation of the restraint order as also in violation of the terms of the Family Settlement as stood modified. Hence, appropriate
amendment is sought in the plaint.
3. Learned counsel for the defendants have opposed the present amendment stating that it is completely a new cause of action. It is further pleaded
that the nature of the suit will completely change. Various arguments have been made stating that the facts that are proposed by way of amendment
do not have any merit whatsoever.
4. I will first deal with the plea of the learned counsel for the defendants that by the proposed amendment nature of the suit would change. As per the
plaint, the plaintiff and defendant No. 1 who are real brothers constituted a Joint Hindu Family along with the father and mother and entered into a
family settlement whereby the properties of the HUF were divided amongst the plaintiff and defendant No.1. However, defendant No. 1 failed to
make any payment to the plaintiff in terms of the family settlement, accordingly the father of the parties after discussions with the plaintiff and
defendant No.1 vide registered cancellation deed dated 23.05.2014 cancelled the earlier set of documents consisting of GPA dated 04.02.2012. A
fresh set of documents were executed in favour of each, the plaintiff and defendant No.1 to the extent of 50% share in the suit property. Public was
also informed vide public issue dated 04.09.2014. It is further stated that defendant No. 1 with mala fide intention colluded and connived with the
officials of defendant No.2. Bank to affect the right, title and interest in the suit property. It is the case of the plaintiff that defendant No.2 Bank is
acting in collusion and connivance by filing an application for recovery of dues from defendant No.1 before DRT. The bank instead of proceedings
against the other properties of defendant No. 1 has sought to proceed against the suit property.
5. In the amendment application, the plaintiff has stated that after filing of the suit and receiving summons, defendant No.1 misrepresented to the
father of the parties and in a fraudulent manner persuaded him to execute a registered sale deed dated 21.12.2017 in respect of the suit property in
favour of defendant No.5 who is the next door neighbour of the suit property. It is claimed that the sale deed is illegal, invalid, non-est and nullity.
Apart from other reliefs, the plaintiff seeks to add the relief of a decree of declaration in favour of the plaintiff and against the defendants declaring
the said sale deed dated 21.12.2017 executed by the father in favour of defendant No.5 in respect of the suit property as invalid, non-est and null &
valid. Other connected reliefs are also sought to be added.
6. The suit for partition is filed regarding the suit property at Geetanjali Enclave. It transpires that the proposed defendant No.3 has sold the property
to the proposed No. 5. Consequential reliefs in this regard are now being sought by way of amendment. It is completely incorrect to state that the
nature of the suit is sought to be changed.
7. The next argument raised by the learned counsel for the defendants was that the facts which are sought to be added are lacking in merit.
8. Reference in this context may be had to the judgment of the Supreme Court in the case of Lakha Ram Sharma v. Balar Marketing Pvt. Ltd., (2018)
17 SCC 671. The court held as follows:-
“4. It is settled law that while considering whether the amendment is to be granted or not, the court does not go into the merits of the mater and
decide whether or not the claim made therein is bona fide or not. That is a question which can only be decided at the trial of the suit. It is also settled
law that merely because an amendment may take the suit out of the jurisdiction of that court is no ground for refusing that amendment. We, therefore,
do not find any justifiable reason on which the High Court has refused this amendment. Accordingly the impugned order is set aside and that of the
trial court is restored. ......â€
9. Similarly, reference may also be had to the judgment of the Supreme Court in the case of Raj Kumar Bhatia v. Subhash Chander Bhatia, (2018) 2
SCC 87. The court held as follows:
“12. ......... The High Court has in the exercise of its jurisdiction under Article 227 of the Constitution entered upon the merits of the case which
was sought to be set up by the appellant in the amendment. This is impermissible. Whether an amendment should be allowed is not dependent on
whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the
limitations on its jurisdiction under Article 227. .......â€
10. Hence, the plea that the facts sought to be added lack merits is liable to be rejected. Regarding impleadment of defendants No. 3 to 5, the
proposed defendants are necessary and proper parties to the present suit as the proposed defendant No.5 has purchased the suit property. Proposed
defendants No.3 and 4 are the parents of plaintiff and defendant No.1. As per defendant No.1 it is proposed defendant No.3 who is the real owner of
the property and had sold the property to proposed defendant No.5. The said proposed defendants No. 3 to 5 are necessary and proper parties and
have to be impleaded accordingly.
11. The suit is at a preliminary stage. The sale of the property has taken place after filing of the suit. In my opinion, the amendment is necessary for
complete adjudication of the dispute between the parties.
12. At this stage, my attention has been drawn to proposed prayer (e) which reads as follows:-
“(e) pass a decree of mandatory injunction in favour of the Plaintiff and against the Defendant No. 2-Bank thereby directing the Defendant No.2-
Bank to initiate the inquiry against its erring officials who have colluded and connived with Defendant No. 1 so as to cause huge loss of public money
in according permission for settlement in O.A. No. 20/2015 titled as 'Union Bank of India Vs. M/s. Aggarwal Iron and Steel Company and Others'
despite availability of several immovable properties for disposal and realization of dues of the Defendant No.2-Bank and thereafter to get these
persons/officials punished in accordance with law;â€
13. Learned counsel for the defendants vehemently argues that the above relief is vexatious and has no co-relation to the nature of the suit. In my
opinion, the above prayer which is proposed to be added has no nexus to the issue raised between the parties. It is only attempt to harass officers of
defendant No.2 Bank. The amendment is vexatious and not necessary for complete adjudication of the dispute between the parties.
14. The application except addition of prayer (e) above is allowed subject to costs of Rs.10,000/- to be paid to defendant No.1 within two weeks from
today.
15. Application stands disposed of.
CS(OS) 255/2017
Amended plaint be filed within one week. Amended written statement to the amended plaint be filed within four weeks thereafter. The newly
impleaded parties may also file their written statement to the amended plaint within four weeks.
List on 5.9.2019 before Joint Registrar on for completion of pleadings and admission/denial.
