Anila Dasgupta (Sd) Thr Lrs v. Maya Bhattacharjee (Sd) Thr Lrs

RAJIV SAHAI ENDLAW, J. MAY 29, 2018/bs/"pp"..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 29th May, 2018 + CM(M) 11/2017 & CM No.239/2017 (for stay) ANILA DASGUPTA (DECEASED) THR LRS .... Petitioner Through: Mr. S.K. Bhandari, Ms. Vandana and Mr. Prem Prakash, Advs. Versus MAYA BHATTACHARJEE (DECEASED) THROUGH LRS ..... Respondent Through: Mr. P.K. Maitra, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This petition under Article 227 of the Constitution of India impugns the order [dated 19th November, 2016 in CS SCJ No.7841/2016 of the Court of Civil Judge-04 (West), Tis Hazari Courts, Delhi] allowing the application of the respondent/plaintiff under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) for amendment of the plaint. 2. The petition came up first before this Court on 4th January, 2017 when notice thereof was ordered to be issued and on the application of the petitioner/defendant, the operation of the order impugned was stayed and owing whereto, the proceedings in the suit from which this petition arises have come to a standstill. 3. The counsel for the respondent/plaintiff has been appearing and the counsels were heard on 15th November, 2017. 4. The respondent/plaintiff, since deceased and represented through legal heirs, in or about the year 1987 instituted the suit from which this petition arises against the petitioner/defendant, also since deceased and represented through legal heirs, for specific performance of an agreement of sale of immoveable property bearing No.J-1840, Chittranjan Park, Kalkaji, New Delhi and for injunction restraining the petitioner/defendant from alienating, encumbering or parting with possession of the said property. 5. Vide order dated 2nd December, 1987, the following issues were framed in the suit: "1. Whether the defendant agreed to sell the property in suit to the plaintiff as alleged? 2. Whether the plaintiff has always been and is still ready to perform her part of the contract? 3. Whether the plaintiff is entitled to damages from the defendant? If so, to what extent? 4. Relief." The order dated 2nd December, 1987 also records that the respondent/plaintiff was not pressing the relief of permanent injunction claimed in the suit. 6. Vide order dated 7th December, 1987 in the suit, reasoning that it was difficult at that stage to believe the existence of any agreement to sell as alleged in the plaint and that it was also difficult to believe that, while there was ample correspondence between the parties, the parties did not formalise a document evidencing the agreement to sell, the application of the respondent/plaintiff under Order XXXIX Rules 1&2 of the CPC for restraining the petitioner/defendant from alienating, encumbering or parting with possession of the property during the pendency of the suit was dismissed. 7. The respondent/plaintiff, in or about March, 1993 applied under Order VI Rule 17 of the CPC for amendment of the plaint and which application remained pending till 19th November, 2016, when it was allowed vide the impugned order. 8. Though it is unfortunate that the suit, of specific performance of an agreement of sale of immoveable property, has remained pending for 20 years and recording of evidence of the respondent/plaintiff even has not commenced as yet inspite of issues also having been framed 20 years back but this is not the stage to ponder over the reasons for such undue delay. Rather, pronouncement of this order also has been delayed. 9. The counsel for the petitioner/defendant has argued, that the respondent/plaintiff was a tenant under the petitioner/defendant in the property aforesaid and till date continues in possession of the property. It is further stated that though the petitioner/defendant has instituted a petition under Section 14(1)(e) of the Delhi Rent Control Act, 1958 for eviction of the respondent/plaintiff from the premises as a tenant but the said petition for eviction also has been pending for several years and the Additional Rent Controller (ARC) is de