Smt Rumajhuma Bhaumik v. Dev Raj Arora

PRATIBHA RANI, J. (ORAL) CM.Nos.8784-85/2012 (Exemption)

¶1Allowed subject to all just exceptions.

¶2Applications stand disposed of. CM.(M).No.576/2012 & CM.No.8786/2012

¶1The petitioner has filed the present petition under Article 227 of the Constitutionof India, impugningthe order dated 17'^ April, 2012, passed by Addl. District Judge-03, SouthDistrict, Saket.

¶2Petitioner is aggrieved as her prayer to amend the plaint has been declined by the Court on the following grounds CM(M)576/2012

(a) the case set up in the plaintand priorto fiHng ofthe suit,the facts were referred in notice dated 18.04.2007by the plaintiff,particularly paragraph7allegingthatthe premisesis notjust encumberedbut is also embroiledin litigationwithoccupantsoffloorabovethe suitproperty'

(b) neitherin the noticenor in the suit,there is any referenceofeither demand of sanctioned building plan, however, paragraph 3-A is projectedthat for want of providingof buildingsite plan, the plaintiff could not get finance from the banlc;

(c) the proposed paragraph 3-A is contrary to the facts stated in reasons (a) and (b) above;

(d) the proposedparagraph3-A is a new ground, firstly,proposedin the applicationand there is no iota ofreferencein any other record of plaintiff; and

(e) the trial has commencedand in terms of proviso to Rule 17 of OrderVI CPC as well as the natureof proposedamendment,as set up in the applicationis a new ground as comparedto the case set up in the plaint on the basis of notice."

¶3Petitioner is invoking the inherent jurisdiction of this Court, claimingthatgraveinjusticehas beencausedto the plaintiff/petitionerby dismissing her application, as in this case the trial has not even commenced. Further admission/denial of the documents was not done and apart from that on 14'^ December, 2010, the case was listed for replicationand argumentson the applicationunder OrderXXXIXRules 1 and 2 CPC.

¶4It is submittedon behalfofcounselfor the petitionerthat on 14"" December, 2010, the learned Presiding Officer was on leave. The date was given by the Reader and without any authority,he adjournedthe Page2 of 13 matter for admission/denial of documents and for framing of issues. When the Judge was on leave,the Readerhad no authorityto changethe stage from the stage of replication and arguments on injunction applicationto that of admission/denialof documents and framing of issues. It is further submitted that on January, 2011 issues were framed in this case without any admission/denialof documentsand this fact can be seen from the fact that subsequentlyon the applicationof the plaintiff/petitionerthe Court has fixed the case for 25^^ May, 2012, on her request to provide an opportunity to cany^ exercise of admission/denial of documents, as it may shortcut the trial.

¶5Learned counsel for the petitioner has submitted that the amendment sought by the plaintiff/petitioneris necessary for just decision of the case and grave illegality has been committed by the learned trial court in dismissingthe application, when the Court had now fixed the date for the said purposes.

¶6Learned counsel for the petitioner has relied upon Baldev Singh and Others Vs. Manohar Singh and another-

(2006) 6 SCC 498, Surender Kumar Sharma Vs. Makhan Singh

(2009) 10 SCC 626, Ramchandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale (D) and Ors. - JT 2007 (9) SC 439 and Rajkumar Gurawara

(dead) through LRs. Vs. S.K.Sarwagi and Company Pvt. Ltd. And Another-

(2008) 14 SCC 364 in support of his submissions.

¶7I have considered the submissions made by learned counsel for the petitioner. The case law Baldev Singh and Others Vs. Manohar Singh and another (Supra), Surender Kumar Sharma Vs. Makhan Singh (Supra),and Ramchandra Sakharam Mahajan Vs. Damodar Trimbak ' Page3 of 13 A Tanksale(D) and Ors. (Supra) relied upon by learnedcounsel for the petitionerwere also referredby him beforelearnedTrialCourt.

¶8In the case Baldev Singh and Others Vs. Manohar Singh and another (Supra) relied upon by learned counsel for the petitioner,the Apex courthas held that wide power and unfettereddiscretionhas been confen-ed on the court to allow amendment of the pleadings to a party in such manner and on such terms as it appears just and proper to the Court. It was further held that while dealing with the prayer for amendment, it would also be necessary to keep in mind that the court shall allow amendmentof pleadingsif it finds that delay in disposalof suit can be avoided and that the suit can be disposed of expeditiously.

¶9In the report Smender Kumar Sharma Vs. Makhan Singh (Supra),it was heldthat in a evictionsuit on groundsof non-paymentof rent, belated applicationfor amendmentcan be allowedby compensating the opposite party with cost if the amendment does not change the nature of the suit.

¶10Learned counsel for the petitioner has also relied upon Ramchandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale (D) and Ors. (Supra), it was held that belated second amendment could be allowed in view of the fact that amendment sought would enable the Court to pin pointedly consider the real issue between the parties and render a decision more satisfactorily to its conscience.

¶11In the case Rajkumar Gurawara

(dead) through LRs. Vs. S.K.Sarwagi and Company Pvt. Ltd. And Another (Supra) relied upon by learned counsel for the petitioner, it was held that during trial, amendment could have been allowed liberally as it would not cause prejudiceto the oppositepartywho will have an opportunityofmeeting the amendment sought to be made.

¶12So far as the proceedingsdated IS^'' January,2011 are concerned, abareperusalofthe samerevealthat on thatdate learnedcounselfor the plaintiff/petitionerwas present,defendantwas presentin person and he was supplied copy of the replication. The learned trial court after perusingthe pleadingsofthe partiesframedthe issues.The learnedtrial courtalso took note of the draftissues,filed by the defendant/respondent and further mentioned that considering the lis, which emerged for adjudication,issueshave been framed.Thereafter,the case was listedfor plaintiffsevidenceon 15'*^ March,2011 with directionto the plaintiffto send advance copy of the affidavitalong with list of witnessesto the defendantwithin reasonabletime. The proceedingsdated 15^*^ March, 2011 reveal that on that date affidavit along with list of witnesses was filed by the plaintiff/petitioner and copy was given to the defendant/respondent.Thereafter, plaintiff wanted to file original documents, which was opposed. Thereafter, plaintiff expressed the intentionto file applicationunder Order XIII Rule 1 CPC along with documents. The Court observed that till specific directions in this case are given,the originalrecordfiledonthatdate wouldnot construepartof the record.

¶13Instead of filing application under Order XIII Rule 1 CPC plaintiff/petitionerpreferredto file applicationunder Order VI Rule 17 CPC, which was dismissed by the impugned order. The certified copy of the proceedingsbefore the learnedtrial court establishedthe following facts: Page5 of 13

(i) On 18"" January,2011,replicationwas filedby the plaintiff,which was taken on record.Issueswere framed in presenceoflearnedcounsel for the plaintiffand thereafterthe case was adjourned for plaintiffs evidence.

(ii) In complianceofthe order dated 18^*^ January,2011, evidenceby way of affidavitwas filed on 15'^ March, 2011 by the plaintiff,which makes it clearthattill that stage,plaintiffwas not aggrievedby the order of the Courtor by the issuesframedinthe case.

¶10Learnedcounselfor the plaintiffdid not raise any objectioneither onthe issuesframedor that admission/denialof documentswas lequiied to be done beforethe framingof issues.It is not out of placeto mention here that,originaldocumentswere soughtto be filed by the plaintiftonly on 15"" March, 2011 when,evidenceby way of affidavitwas filed. The learned trial court has already allowed the parties to get the admission/denial of documents so that evidence can be cut short.

¶14No doubt, the Reader had no authority to list the case for admission/denial of documents and framing of issues but at the same time, it cannotbe ignoredthatpleadingswere complete. We havetotake note that pleadingswere complete and the trial court had the duty to frame the issues, which have been framed in presence of the learned counsel for the plaintiff/petitioner.

¶15So far as the amendment sought by the plaintiff is concerned, Order 6 Rule 17 CPC proviso provides that: "no applicationfor amendmentshall be allowedafter the trial has commenced, unless the Court comes to the conclusion that in spite ofdue diligence,theparty couldnot have raised the matter before the commencement oftrial. " CM(M) 576/2012 '

¶16Though the law with regard to the amendments is liberal and amendmentscan be allowedwidelyat any stage,butit is also settledlaw that exerciseof such far-reachingdiscretionarypowersis to be governed by judicialconsiderationsand widerthe discretion,the greateroughtto be the care and circumspectionon the partofthe court.The amendments cannot be claimed as a matter of right and under all circumstances. Exercise of discretion of the court in accepting or rejecting an amendmentwould depend upon the fact and circumstancesof the case and has to be exercised on judicial evaluation.

¶17Before consideringthe submissionsmade by leaned counsel for the petitioneras to whetherthe proposedamendmentshouldhave been allowed by the Court as the trial is yet to commence or the proposed amendmentis necessary to determinethe real question of controversy betweenthe parties,it is importantto keep in mindthatthe powerofthis Court under Article 227 of the Constitution is not in the nature of appellatejurisdictionand so, the extent and scope of power with this Court is limited and restrictive in nature, and in the normal circumstance, it is exercised where there is want of jurisdiction, error of law or perverse findings by the trial Court. Such power is to be exercisedto keep the subordinate court within limits of their jurisdiction and authority and it is not to act as an Appellate Court for correcting the decisions of the subordinate courts. This court would not substitute its opinion or interfere with the findings of the facts of the trial Court, if there was no infirmity or perversity. Thus, in the absence of there being any material illegality or perversity, the order of the court below is not to be faulted with or interferedwith by this court in its supervisorypower under Article227. Referencein this regard can be made to the decisionsofthe SupremeCourt in Waryam Singh and Anr. Vs. Amarnathand Anr., AIR 1954 SC 215 and MohammedYusuf Vs. Faij Mohammadand Ors., I (2009) CLT 153 (SC).

¶18The agreementto sell dated 21.03.2007enteredinto betweenthe parties as well the legal notice dated 18.04.2007have been made the foundationof the suit filed by the petitioneragainstthe respondentfor recovery of Rs.8,65,952 with future and pendent lite interest. The agreementto sell (copy of which is placed on recordat pages 21 to 24) nowhere incorporatesany clause that it has been entered into by the parties with clear understandingthat the respondentwould provide all the documentsincludingsanctionplan to enable the petitionerto avail loan to purchasethe property. The legalnoticedated 18.04.2007(para3) also speaks of the representationmade by the respondentto.the effect that he was absoluteownerofthepropertyagreedto be purchasedbythe petitioner. Para 5ofthe legalnoticetalks aboutthe representationmade by the respondentto the petitionerto the effectthat the said propertyis, free from all sorts of encumbrances, including charges, disputes, court injunctions,attachments,etc. and that if the same is proved otherwise, the respondentshall be liableand responsiblefor all suchrepresentations and shall be liable to return the entire advance earnest money/part payment of Rs.5 lacs alongwith damages suffered/sustainedby the petitionerand respondentshallmake goodthesame attheearliest.

¶19Para 7 of the legal notice contains the grievance of the petitioner and the same is extracted as under CM(M)576/2012 Page8 of13 4-

¶7Thatafterenteringinto the saidagreementto sellwithyou the Addresseeabove, and aftermakingthe initialadvancepaymentof Rs.5.00lacs, my clientsgot suspiciousand made effortsto get the title verified. She conductedsomepreliminaryinspectionand on queries from the other occupants of the said properties, it is revealed,to her uttershockanddisbelief,that the saidpremisesis notjust encumberedbut is also em.broiledin litigationswith the , occupants of the above floors over the premises in the said property. It isfurtherrevealedthatthere is infactadisputeto the title ofthepremises itself.'

¶20In para 8ofthe notice,the petitionerhas expressedthat she is no more interested to purchase the said premises a;s the belief and representationmade by the respondent to her has turned out to be completelyincorrect,false and contraryto the actualfacts.

¶21Vide this notice dated 18.04.2007, while terminating the agreement to sell with, immediate effect, the petitioner directed the respondentto return with immediateeffect the entire advance earnest money/partpaymentofRs.5 lacs alongwithinterestMthe rate of 18/o p.a; till, the date ofrealisationalojngwithliquidated,damages limited to Rs.l lac by 25'^ April,. 2005, failing which the petitionerwould be constrainedto initiatelegalactionagainsttherespondentas perlaw.

¶22The amendmentproposed to be made in the plaint by inserting para 3A, reads as under ; 'Paragraph 3A - That the plaintiffhad repeatedly asked the defendant to provide the copy of the sanctioned plan. The defendantcouldnotprovidethe copy ofthe sanctionplan to hide the facts of unauthorizedconstructionof the suit property. It is pertinent to mention that the owner / builder constructedthe Basement,Lower GroundFloor (heightof the lower groundfloor is approximately about 9'.6" from the ground floor). Upper Page 9of 13 groundfloor (heightofthe upper groundfloor is approximately about 19 feetfrom the lower groundfloor)from the road level includinglowergroundfloor, Firstfloor and secondfloor in the year 19921993.Owner/ Buildermadeapprox.aboutfull coverage oftheplot. At that time only 60% coveragewas permissible.FAR was far above the permissible limit. It is an unauthorized construction. Under the instructionof the plaintiff counselof the plaintiffhad appliedunderRTlAct, 2005for obtainingthe sanctionedbuilding plan ofuppergroundfloor in respectofsuitproperty-P. No. N6, CR Park, New Delhil10019. Municipal Corporation of Delhi, Office of the Executive Engineer (Building)1, Central Zone, LajpatNagar, Shiv Mandir Marg, New Delhil10024 in its reply No. 1605/EE(B)/Cent.Zone/2011dated 07.12.2011 interalia mentioned that "In this regard, it is informed that copy of sanctionedbuildingplan cannotbeprovidedto the applicantbeing thirdparty involvement.Moreover, sanctionedbuildingplan is a personalpropertyofthe owneras wellasofthe qualified/ licensed / approvedarchitectpreparedbased upon his expert knowledge and skillsfor which the chargesfrom his clients.Hence, supplying copy ofthe same is a violationofSections8(e) and8(d) ofthe RTI Act". It was / is difficultfor the plaintiff to get any loan from any fmancer/ Bankwithoutshowingthe sanctionedplanfor buyingthe said suitproperty.Any unauthorizedconstructionshall invite the penal action includingdemolitionaccordingto the DelhiBuilding Byelaws 1983. The defendant was / is intentionally and deliberately not providing the sanctioned plan to hide the unauthorized construction in the suitproperty. Original copyofthe reply/ order No. 1605/EE(B)/Cent.Zone/2011dated07.12.2011of the MunicipalCorporation ofDelhi, OfficeofExecutiveEngineer (Building), 1, Central Zone, Lajpat Nagar, Shiv Mandir Marg, New Delhil 10024 is annexed herewith and marked as Annexure PI".

¶23A bare readingof the proposedamendmentmakes it clearthat the petitioner wants to take entirely different plea for terminating the CM(M)576/2012 Page 10 of13 H agreementprojectingit to be acasewherethe transactionallegedlyfailed for want of sanction plan and unauthorisedconstructionof the suit property. This amendment is sought to be made when the trial has already commenced.

¶24In the case Vidyabaivs. PadmalathaAIR 2009 SC 1433, it was observed as under : 'The question, therefore, which arisesfor considerationis as to whether the trial had commencedor not. In our opinion, it did. The date on whichthe issuesareframed is the date offirst hearing. Provisions of the Code or Civil Procedure envisage taking of various steps at differentstages of the proceeding. Filingof an affidavit in lieu of examination in chiefof the witness, in our opinion,wouldamountto commencementofproceeding.'

¶25In the instant case also, the petitioner has already filed her evidenceby way ofaffidavitand the trialhas alreadycommenced.

¶26In the case Just Lifestyle Pvt. LTd. vs. Advance Magazine (MANU/DE/0082/2013),it was observedas under : '44. It wasfelt that theprovisionfor amendmentofpleadings was one of the significantsourcesofdelay in thejudicialprocess. In theyear 1999, asper the recommendationsofLaw Commission, the provisionfor amendmentofpleadingswas altogetherdeleted by AmendmentAct No.46 of 1999. The deletionof the provision led to widespreadprotests by lawyers and differentlegal bodies and as a result in the year 2002 the provision was once again introduced, albeit with a rider, by AmendmentAct No.22 of 2002. By virtueofsaid amendment,a provisowas appendedto Rule 17, which reads as under Providedthat no applicationfor amendmentshall be allowedafter the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party couldnot have raised the matter before the commencementoftrial.' CM(M)576/2012 Page 11 of13 I'?

¶27It has alreadybeen referredto abovethat neitherinthe agreement to sell, there was any clausein respectofsanctionplan nor in the notice or in the suit filed, it was the case of the petitionerthat the agreement was terminated by her because of the rea:sons now sought to be incorporatedby amendingthe plaint and insertingpara 3A. The facts now soughtto be incorporated,ifexisted,the same were well withinthe Imowledge of the petitionerand could have been incorporatedin the legalnotice as well as in the complaint. Sincethe trial has comrrienced, in view of the proviso to Order 6 Rule 17 CPC, the petitioner is disentitledto claim the relief sought. Reliance can be placed on Surya Sikander and Ors. Vs. Netha Spinning Mills and Ors. JT 2002 (8) SC 287 and also Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb and Anr. JT 2003 (8) Sc 478, whereinit was held thatthe discretionfor allowing or disallowingan amendment should be exercised as per the settled norms of civiljurisprudenceand where the applicanthas acted callously andwithoutdue diligence,the courtshoulddismisssuch application.

¶28The learned trial court has rightly disallowed the amendment as none of the amendments sought for was the fact which was not within the knowledge of the plaintiff when suit was filed. Further, the trial commenced when the issues were framed and the case was listed for evidence.The case is already at the stage of evidence as evidenceby way of affidavit has been filed by the plaintiff and she is required to be cross-examined.

¶29In view of the above discussion, I do not find any illegality or infirmity in the discretion that was exercised by the learned Addl. ' Page 12of13 io DistrictJudge in the entire scenarioof facts and thus, do not intendto interfere with the same. The petition merits dismissal and is hereby dismissed. - PRATIBHA RANI, J February 15,2013 aka CM(M)576/2012 Page 13of13

M * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date ofDecision :15*''February, 2013 + RUMAJHUMA BHAUMIC Petitioner Through : Mr.P.K.Maitra, Advocate versus DEV RAJ ARORA Respondent Through: Mr.RajeshwarKumar Gupta and Ms.Sumati Sharma and Ms.Ambika Singh, Advocates. CORAM: HON'BLE MS. JUSTICE PRATIBHA RANI %