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Rising Sun Press, Delhi Vs. Ram NaraIn and ors., Delhi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Revn. No. 174 of 1972, against order of N.L. Kakkar, Sub. J., 1st Class, Delhi, D/- 3.1.1972
Judge
Reported inAIR1973Delhi167
ActsCode of Civil Procedure (CPC),1908- Order 6, Rule 17;
AppellantRising Sun Press, Delhi
RespondentRam NaraIn and ors., Delhi
Appellant Advocate Kailash Narain, Adv
Respondent Advocate Keshav Dayal, Adv.
Cases ReferredIn Jai Jai Ram Manohar Lal v. National Building Material Supply. Gurgaon.
Excerpt:
.....the parties - considering the fact that the circumstances may be related to the real question in controversy, it was ruled that it could not be said that the amendment sought was outside the scope of the order 6 rule 17 of the code - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family..........from installing any meter on the wall of house no. 415. defendants no. 2 (petitioners) filed a written statement dated the 31st of july. 1970. in which after raising several preliminary objection replying to facts in paragraph 1 it was stated that para. no. 1 of the plaint was not being denied. in para. 1 the respondent -plaintiff. had clearly asserted that he was the owner in possession of house no. 415. the reply in the written statement did not controvert that assertion.3. in the course of the litigation the petitioners filed an application under order 6. rule 17 read with section 151 of the civil procedure code praying that they might be allowed to substitute paragraph 1 of the written statement on merits. before detailing the amendment the defendants-petitioners in paragraph 3.....
Judgment:
ORDER

1. This petition directed against the order made by the trail Court on 3rd January. 1972. is being disposed of along with Civil Revision No. 173 of 1972. by this order because both of them are connected with each other.

2. A suit was filed to which the petitioners were imp leaded as defendant No. 2 Shri Ram Narain respondent to these two petitions instituted the suit on the footing that he was the owner in possession of house No. 415. Chitla Darwaza. Chawari Bazar. Delhi and that the defendants who were seeking to instal a meter on one of the walls of the said house had no right to fix the wire and the meter and that the Court might pass a decree permanently restraining the defendants from installing any meter on the wall of house No. 415. Defendants No. 2 (petitioners) filed a written statement dated the 31st of July. 1970. in which after raising several preliminary objection replying to facts in paragraph 1 it was stated that para. No. 1 of the plaint was not being denied. In para. 1 the respondent -plaintiff. had clearly asserted that he was the owner in possession of house No. 415. The reply in the written statement did not controvert that assertion.

3. In the course of the litigation the petitioners filed an application under Order 6. Rule 17 read with Section 151 of the Civil Procedure Code praying that they might be allowed to substitute paragraph 1 of the written statement on merits. Before detailing the amendment the defendants-petitioners in paragraph 3 of the said application alleged that the plaintiff was claiming owner ship of house No. 415 on the basis of a purchase made by him form Shri Sant Lal Tandon who had in turn purchased the property from Shri Mohan Lal. It was averred that the sale in favor of Shri Sant Lal had been impugned through a suit instituted by Shri Sohan Lal and others. In that suit. it was alleged. a decree was passed declaring that the sale in favor of the predecessor-in-interest of the respondent was void. ineffective and in operative and that the appeal preferred against the said decree having been dismissed the High Court also dismissed a second appeal preferred against the decree made by the Senior Sub-Judge. On that basis defendant No. 2 sought to amend paragraph 1 of the written statement on merits by substituting :--

'1. Para. No. 1 of the plaint is totally wrong and emphatically denied. It is wrong and denied that the plaintiff is the owner in possession of House No. 415 as alleged. As a matter of fact he has no title or interest in the property No. 415.'

The application was replied to. In paragraph 3 of the reply it was admitted that the plaintiff ahd purchased property bearing No. 415 from Shri Sant Lal Tandon. The rest of the allegations were denied. It was then asserted that in any suit filed by Sohan Lal and others against Sant Lal and by the adjudication resulting there from.

If anything the plaintiff did not assert that the sale in favor of his predecessor-in-interest ahd not been declared void and ineffective. In para, 4 it was stated that defendants No. 2 being strangers had no right to challenge or otherwise question the sale in favor of the plaintiff (respondent to these petitions).

4. By the order impugned through Civil Revision No. 174 of 1972 the trial Court dismissed the application filed by the petitioners under Order 6. Rule 17. While dealing with the application the Court was exercising the jurisdiction within Order 6. Rule 17 of the Code :--

'17. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.'

5. Having dealt with the law laid down till then a Division Bench of this Court while disposing of S. A. O. No. 4 of 1971. (Shri Sita Ram Talwar v. Shri Jai Deva Sharma) in the course of the judgment pronounced on the 25-2-1972. (Delhi) interpreting the aforequoted provision observed :--

'All amendments which may be necessary for the purposes of determining the real questions in controversy between the parties. are ordinarily to be allowed. The purpose of the rule is that where the real questions in controversy between parties are already apparent from the pleadings then such alteration or amendment may or permitted which may be necessary for achieving a final determination thereof. The amendment sought should be such, the allowing whereof would be necessary for bringing out before the Court the real and pertinent aspects of the controversy in order to promote a final adjudication. It is intended that multifariousness be avoided.'

The provision falls into two parts. Where the amendment sought is so related to the real questions in controversy that the final determination thereof would not be achieved without allowing it, it has to be imperatively allowed. If in a case falling in that category the trial Court disallows the amendment its order would amount to a refusal to exercise the jurisdiction required to be exercised in accordance with Order 6. Rule 17 of the Civil Procedure Code. Such an order can be impugned within the scope of Section 115 of the said Code.

In this case the plaintiff had come to Court alleging that he was the owner in possession of house No. 415 and that the defendants could not install a meter on one of the walls of that house. The amendment was sought on the basis that the defendant No. 2 on the date of filing their written statement were unaware of the declaration made in a previous litigation to the effect that the sale in favor of the predecessor-in-interest of the plaintiff was void and ineffective.

6. Where a party to a litigation, being unaware of the existing state of facts, makes the averment which he then seeks to rectify so as to make it in accordance with the circumstances truly prevailing between the parties and which circumstances may be related to the real questions in controversy between them. been sought with neglect but it cannot be held that the amendment is outside the scope of Order 6, Rule 17 of the Civil Procedure Code.

In Jai Jai Ram Manohar Lal v. National Building Material Supply. Gurgaon. : [1970]1SCR22 , while dealing with Order 6. Rule 17 of the Code. it was observed :--

'Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence. inadvertence or even infraction of the rules of procedure.'

It is beyond controversy that Order 6, Rule 17 is a rule of procedure. It has been enacted in order to allow the parties to plead before the Court all those aspects which may be concerned with the real questions in controversy between them. It is intended that multifariousness be avoided. I am of the view that whatever the negligence in seeking the amendment at a late stage or in not originally pleading that the plaintiff was the trail Court should have within the scope of the jurisdiction provided by Order 6. Rule 17 allowed the amendment.

7. In that view of the matter the order dated the 3rd of January. 1972 is set aside. The petitioners will be allowed to file their written statement on payment of Rs. 100/- as conditional costs to the plaintiff. The written statement may be filed before the trail Court on or before the 16th of September . 1972. A copy of the written statement will be given on that date to the plaintiff or his counsel. The trail Court will then proceed in accordance with law.

8. Civil Revision No. 173 of 1972 raises the grievance that during the cross-examination of Sant Lal P. W. 2 the trail Court did not allow the questions regarding the title to the property being house No. 415. to be put to that witness. The questions were disallowed on the basis that the defendants had never urged that the plaintiff was not the owner of the said property. Since the petitioners (defendants No. 2 ) have been allowed by this order to file fresh written statement the trial Court will hereafter deal with the litigation on the basis of the amended written statement.

9. Both the petitions are allowed but without costs.

10. Petitions allowed.


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