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Mulkh Raj Vs. Surat Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 350 of 1972
Judge
Reported in9(1973)DLT359; 1973RLR560
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 17
AppellantMulkh Raj
RespondentSurat Singh
Advocates: S.L. Choudhry,; Roshan Lal and; Ghanshyam Das, Advs
Excerpt:
.....property or to rent in respect thereof clearly flows from the allegations already in the existing written statement to the effect that the property in dispute was government property anddid not, thereforee, constitute either a fresh case or a fresh cause of action and the addition of such a plea was, thereforee, necessary to determine the real question in controversy between the parties as to the right of the respondent to recover possession and arrears of rent from the petitioner and ought, thereforee, to have been allowed to beadded. the amendment in the present case was clearly necessitated party because the petitioner did earlier of the fact that the respondent and his predecessor-in-interest had no title to the properly and partly because of the rather in artistic drafting of the..........application under older 6 rule 17 of the code of civil procedure for leave to ' amend the written statement so as to incorporate in it the plea that the respondent by misrepresentation got the lease deed executed : that the respondent was not the owner of the land in dispute even prior to the execution of the lease deed and that the land has always been government properly and respondent was not entitled to realise any rent or to recover possession from the petitioner.(2) the suit out of which the present petition has arisen was filed by the respondent against the petition for ejectment of the petitioner from a piece of land and for the recovery of arrears of rent in respect of the said property. the suit was based on a lease granted by the respondent in favor of the petitioner.....
Judgment:

H.L. Anand, J.

(1) This is a petition under section 115 of the Code of Civil Procedure challenging the order of the trial Court made on August 29, 1972 rejecting the petitioner's application under Older 6 Rule 17 of the Code of Civil Procedure for leave to ' amend the written statement so as to incorporate in it the plea that the respondent by misrepresentation got the lease deed executed : that the respondent was not the owner of the land in dispute even prior to the execution of the lease deed and that the land has always been Government properly and respondent was not entitled to realise any rent or to recover possession from the petitioner.

(2) The suit out of which the present petition has arisen was filed by the respondent against the petition for ejectment of the petitioner from a piece of land and for the recovery of arrears of rent in respect of the said property. The suit was based on a lease granted by the respondent in favor of the petitioner for a period i f9 years 4 months.

(3) The suit was contested by the petitioner, inter alia, on the ground that the respondent had no locus standi to file it as the property in question had been acquired by the Central Government that lease was void. having been procured by concealment of true fads and playing fraud upon the petitioner and that the acquisition proceedings in respect of the property in dispute were in progress even prior to the lease of the same to the petitioner. The petitioner, however, did not give any particulars in the written statement as to the facts which were concealed from the petitioner and as to the manner in which fraud was played in relation to the leaving of the property to the petitioner by the respondent. The written statement also did not contain any allegation that even prior to the date of the lease, the respondent had no title to the property in dispute and that the property in dispute became Government property as early as the year 1920.

(4) On the pleadings of the parties, the trial court framed a number of issues including the issue with regard to the fraud which is in the following terms:

'WHETHERthe contract of lease was procured by playing a fraud and concealing 'be urue facts (O. D. P.)'

(5) After issues were framed, the matter went to trial. The respondent has since closed his case and the petitioner has examined a number of witnesses and, I am told, that on the existing pleadings and the issues, the petitioner has only to examine himself as his own witness.

(6) By an application of April 22, 1972, the petitioner sought leave of the trial Court to amend the written statement on the allegations that the respondent was not the owner of the properly in dispute : that it belongs to the Government; that the father of the respondent held the properly under a lease from the Government which expired in the year 19ZO and that ihe properly had since been Government property, that the respondent had, thereforee, been in illegal possession of the; property and the respondent practiced fraud on the petitioner as the respondent did not disclose the aforesaid facts to the petitioner when the properly was purported to have been leased to him. The leave was accordingly sought to amend the written statement so as to incorporate the plea in the following terms :

'THATthe plaintiff by misrepresenting got the lease deed executed. The plaintiff was not the owner of the land even prior to the execution of the lease deed. The defendant continued paying rent to the plaintiff in ignorance. The land is an agricultural land and the plaintiff had no right, title to change the mode of the land. That the land is Government property and even now belongs to the Government. The plaintiff is not entitled to realise any rent and to take possession from the defendant.'

(7) The application was resisted by the respondent inter-alia, en the ground that the allegations of fraud were already there in the existing written statement ; that the question of title to the property could not be raised in the present suit by virtue of the fact that the petitioner was admittedly put into possession by the respondent under the lease and that the amendment sought by the petitioner was not necessary for the purpose of determining the real question in controversy between the parties.

(8) By the impugned order, the trial Court has rejected the petitioners application on the ground that it was not necessary to grant leave to the petitioner to add the plea that the land in dispute belongs to the Government as the said plea was already there in the existing written statement. The amendment has been turned down for the further reason that the allegation that the lease deed had been executed in pursurace of fraud was also there in the existing written statement. The trial Court further held that the plea that the respondent was not the owner of the properly in dispute was neither necessary to be decided in the suit nor was the petitioner entitled to raise such a plea by virtue of the provisions of section 116 of the Evidence Act.

(9) The order of the trial Court was assailed before me mainly on the ground that the fact that the respondent and his father had no title to the property since the year 1920 had come to the Knowledge of the petitioner only recently and these allegations were, thereforee, necessary with a view to re-enforce the contention, already raised on behalf of the petitioner '.hat fraud had been practiced on the petitioner by the respondent by the concealment of the facts that the respondent had no title to the property sought to be leased out to the petitioner and that the addition of these pleas was, thereforee, necessary for determination of the controversy between the parties as to the validity of the lease and the right of the respondent to recover possession of the property.

(10) The impugned order was sought to be justified on behalf of the respondent on the ground that part of the pleas sought to be added already formed part of the existing written statement while the plea which threw a challenge to the title of the respondent to the properly was not sustainable in law in view of the provisions of election 116 of the Evidence Act.

(11) It appears to me that the impugned order is vitiated on account of a wholly erroneous approach of the trial Court to the question as to the propriety of granting leave to any party to amend its pleadings and is also contrary to the general policy of law in the matter of granting leave to amend pleadings.

(12) In the first instance. it was not open to the trial Court to embark on an examination of the question whether the plea sought to be added by the petitioner was sustainable in law or on facts for the purpose of deciding whether or not, leave should be granted to amend the written statement. The sustainability or otherwise of a plea sought to be raised by the proposed amendment is wholly irrelevant for the purpose of determining whether leave to amend the pleadings should or should not be allowed.

(13) The general policy of law is well settled that amendment of pleadings should be freely allowed except in cases where the proposed amendment would result in the setting up of an entriely new case or is based on a new cause of action and a fresh suit on that basis would be barred by the statute of limitation or would otherwise cause prejudice to the other party which could not be adequately compensated. Even in cases where the amendment would introduce a new case or a new case of action or would amount to circumvening the statute of limitation, the power of the Court to allow amendment has never been in doubt but before allowing amendment in such cases, the Court would be entitled as indeed under an obligation to consider whether the case was a fit one for leave being granted.

(14) Secondly, the allegation that the fraud had been committed on the petitioner by the respondent was undoubtedly in the existing written statement but no particulars were given as to the manner in which fraud was committed; as to the facts which were concealed from the petitioner and by the proposed amendment, the petitioner sought to add those facts i.e. that the respondent was not the owner of the properly in question even prior to the execution of the lease deed and that this fact was concealed from the petitioner. Such an allegation would certainly elucidate the existing allegation of fraud which is subject matter of an issue which has been quoted above and an addition of these allegations would, thereforee, be conducive to a proper determination of the matter in controversy between the parties.

(15) Thirdly, the plea that the respondent was not entitled to reco ver possession of the property or to rent in respect thereof clearly flows from the allegations already in the existing written statement to the effect that the property in dispute was Government property anddid not, thereforee, constitute either a fresh case or a fresh cause of action and the addition of such a plea was, thereforee, necessary to determine the real question in controversy between the parties as to the right of the respondent to recover possession and arrears of rent from the petitioner and ought, thereforee, to have been allowed to beadded.

(16) It may be pointed out that the rules of procedure are intended to enable the Court to determine the various questions in controveny between the parties ana to do justice in the cause before the Court and are not intended to of strcut the course of justice or to punish any party for its mistake. The amendment in the present case was clearly necessitated party because the petitioner did earlier of the fact that the respondent and his predecessor-in-interest had no title to the properly and partly because of the rather in artistic drafting of the written statement and it would, thereforee, not be in the interest of justice to refuse leave to the petitioner to amend the written statement.

(17) The question whether in view of the fact that the petitioner was put into possession of the property in dispute by the respondent under the terms of the lease, the petitioner was estopped from challenging the title of the respondent to the property could be urged by the respondent as and when an amanded written statment is filed audit would then be open to the trial Court to determine that qusetion, after hearing the parties, if necessiry, even as a preliaminary issue so that the course of the trial is not unnecessarily prolonged.

(18) In the circumstances, the impugned order is set aside and the application of the petitioner for leave to amend the written statement is allowed.

(19) In the circumstances, neither the order allowing leave would be subject to any costs nor would there be any order as to costs in the present petition.


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