* IN THE HIGH COURT OF DELHI AT NEW DELHI. + CS(OS) No. 684/2004 % 8 th December, versus

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1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) No. 684/2004 % 8 th December, 2015 RAJ CHAUDHARY AND ORS.... Plaintiffs Through: Mr. Manish Vashisth and Ms. Trisha Nagpal, Advocates. versus ASHA CHAUDHARY AND ORS. Through: CORAM: HON BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)... Defendants Mr. Ravi Gupta, Sr. Adv. with Mr. Swastik Singh, Advocate. I.A.No.17819/2012 (U/o VI Rule 17 CPC filed by the plaintiffs for amendment of plaint 1. The subject suit is a suit for declaration and injunction. Plaintiff no.1 from the group of plaintiffs claims to be the wife of deceased Ch. Brijender Singh with plaintiff nos. 2 to 4 being the offsprings of plaintiff no.1 through Ch. Brijender Singh. Defendant no.1 from the group of defendants claims that she was the only legally wedded wife of Ch. Brijender Singh with defendant nos. 2 and 3 being the offsprings of defendant no.1 through Ch. Brijender Singh. CS(OS) 684/2004 Page 1 of 9

2 2. By the suit plaintiffs claimed to be the successors-in-interest to the properties left behind by Ch. Brijender Singh who died on Plaintiffs also seek declaration as to legal invalidity of the Will dated said to have been executed by Ch. Brijender Singh in favour of defendant nos. 1 to In this suit as filed originally the following prayers were made:- PRAYER It is, therefore, most respectfully prayed that his Hon ble Court may be pleased to: (a) pass a decree of declaration declaring that the will vide document No Addl. Book No.3, volume no at pages and document No Addl. Book No.3, volume no at pages dated registered with the Sub- Registrar, Delhi in favour of the defendants be declared as null and void. b) further declare the Defendant No.1 not a wife of Chaudhary Brijender Singh and the Defendants No. 2 to 3 have having no relations of any kind whatsoever with him and declare all the transactions, if any, done pursuant to GPA No. 261 as null and void. c) further pass a decree to permanent injunction restraining the Defendant No.1 from claiming wife of and Defendants No. 2 & 3 from claiming, son and daughter of late Chaudhary Brijender Singh. d) pass a decree of injunction restraining the defendants and their relatives from executing the said wills and any manner whatsoever and restraining from depriving the plaintiffs from the benefits of the properties left behind by the husband of CS(OS) 684/2004 Page 2 of 9

3 Plaintiff No.1 and father of the Plaintiff No.2 to 4, Ch. Brijender Singh in any manner whatsoever. e) Pass such other or further directions whichever may be deem fit and proper under the present circumstances of this case. 4. By this amendment application three amendments are sought to be incorporated in the plaint. First amendment is to seek the relief of possession as the defendant nos. 1 to 3 had taken up a plea in their written statement that plaintiffs are not in possession of the suit property, and, that therefore the suit was not maintainable under Section 34 of the Specific Relief Act, Second amendment sought is for changing the pecuniary jurisdiction value of the suit on account of claiming possession. Third amendment is for withdrawal of the averment in the plaint that plaintiff is in possession inasmuch as now plaintiffs seek to amend the plaint to seek possession. 5. Learned senior counsel for the defendant nos. 1 to 3 has very vehemently opposed the application for amendment on the sole ground that the application for amendment is barred by Order 2 Rule 2 CPC. Reliance in this regard is placed upon paras 33 and 34 of the judgment of the Supreme Court in the case of Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Regd.) Vs. Ramesh Chander and Ors. AIR 2011 SC 41 CS(OS) 684/2004 Page 3 of 9

4 and which paras read as under:- 33. This Court is, therefore, of the opinion that the appellant had the cause of action to sue for Specific Performance in 1991 but he omitted to do so. Having done that, he should not be allowed to sue on that cause of action which he omitted to include when he filed his suit. This Court may consider its omission to include the relief of Specific Performance in the suit which it filed when it had cause of action to sue for Specific Performance as relinquishment of that part of its claim. The suit filed by appellant, therefore, is hit by the provisions of Order 2 Rule 2 of the Civil Procedure Code. 34. Though the appellant has not subsequently filed a second suit, as to bring his case squarely within the bar of Order 2 Rule 2, but the broad principles of Order 2 Rule 2, which are also based on public policy, are attracted in the facts of this case. 6. Relying on the aforesaid paras 33 and 34 of the judgment in the case of Ramesh Chander (supra), learned senior counsel for the defendant nos. 1 to 3 argues that the amendment sought by adding the relief of possession in the plaint is barred under Order 2 Rule 2 CPC and the bar under Order 2 Rule 2 CPC applies even to an existing suit and the said bar is not only for a subsequent suit which is filed. 7. Learned counsel for the plaintiff however, in response, places reliance upon a Division Bench judgment of this Court in the case of Vaish Co- Operative Adarsh Bank Ltd. Vs. Geetanjali Despande and Ors, 102 (2003) DLT 570, and paras 17 to 19 whereof are relied upon, to show that the bar CS(OS) 684/2004 Page 4 of 9

5 under Order 2 Rule 2 CPC is only for a subsequent suit. These paras read as under:- 17. Reverting to the preliminary objections raised by the appellant against the maintainability of the application for amendment, one would come across with a peculiar plea of proposed amendment being barred under Order II Rule 2 CPC. General rule enacted under Order II Rule 2.(1) CPC is that every suit must include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Order II Rule 2.(2) precludes a subsequent suit on any part of claim, which had been omitted or intentionally relinquished by the plaintiff in an earlier suit based on the same cause of action. Similarly, where the plaintiff is entitled to more than one relief in respect of the same cause of action but omits, except with the leave of the court, to sue for all such reliefs, he is debarred in view of the Order II Rule 2.(3) CPC from suing afterwards for any relief so omitted. 18. A plea of bar under Order II Rule 2 CPC is maintainable only if the defendant makes out (i) that the cause of action of the second suit is the same on which the previous suit was based, (ii) that in respect of that cause of action, the plaintiff was entitled to more than one relief and (iii) that the plaintiff without leave obtained from the Court omitted to sue earlier for the relief for which the second suit is filed.(see "Gurbux Singh Vs. Bhooralal": [1964]7SCR831 ). Clearly, Order II Rule 2 CPC enacts a rule barring a second suit in the situation indicated above. Identity of cause of action in the former and subsequent suits is essential before the bar contemplated under Order II Rule 2 CPC is set to operate. Thus, where the claim or reliefs in the second suit are based on a distinct cause of action, Order II Rule 2 CPC would have no application. Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. 19. No doubt the learned counsel for the respondent No.1-plaintiff made a statement to the Court on 18th of September, 1997 that the plaintiff did not wish to seek any amendment to the plaint but such a statement alone cannot suffice to disallow the amendment application, if the facts sought to be incorporated are relevant for complete and effectual CS(OS) 684/2004 Page 5 of 9

6 adjudication on the suit subject and an additional prayer for a relief is sought to be made to avoid multiplicity of judicial proceedings. Order VI Rule 17 CPC enables the parties to a suit to amend their pleadings, if so felt necessary. It is an altogether different question if an application for amendment is ultimately to be allowed or rejected. There can be no estoppel against the statute and, Therefore, the right of the respondent No.1-plaintiff to seek amendment in her plaint cannot be taken away simply because her counsel made a statement to the said effect. The plea of estoppel raised by the appellant, thus, fails. 8. I am unimpressed by the arguments urged on behalf of the defendant nos. 1 to 3 that the application is liable to be dismissed by applying the bar under Order 2 Rule 2 CPC because the bar under Order 2 Rule 2 CPC cannot apply to an amendment which is sought of an existing suit. The entire basis of Order 2 Rule 2 CPC is that the earlier suit has already been decided wherein the relief claimed in the second suit arising from the cause of action of the earlier suit could have been claimed but is not claimed, and thus leading to the bar of Order 2 Rule 2 CPC. This is clear from paras 17 to 19 of the judgment of the Division Bench of this court in the case of Vaish Co-Operative Adarsh Bank Ltd. (supra). 9. Reliance placed by the learned senior counsel for defendant nos. 1 to 3 upon the judgment in the case of Ramesh Chander (supra) is misplaced because the facts of that case are peculiar and different, inasmuch as, in the said suit the original suit filed for injunction was sought to be CS(OS) 684/2004 Page 6 of 9

7 amended for including the cause of action and relief of specific performance which was time barred on the date when the application was filed to amend the plaint to seek the relief of specific performance. Since the relief of specific performance was time barred and the second suit for seeking specific performance could not have been filed as it would be time barred, hence, the Supreme Court applied the bar under Order 2 Rule 2 CPC to deny amendment of the plaint in a suit for injunction for being converted into a suit for specific performance. Therefore, the judgment in the case of Ramesh Chander (supra) was on its peculiar facts and it cannot be held that the judgment in the case of Ramesh Chander (supra) lays down the law that bar under Order 2 Rule 2 CPC will apply even if there is no earlier suit decided and in the only existing suit an amendment of the plaint is applied for seeking to amend the suit plaint to include the relief of possession, more so when the amendment is sought in view of the objection which is raised on behalf of the non-applicant/defendant nos. 1 to Also, I may note that the arguments urged on behalf of defendant nos. 1 to 3 that no amendment is sought in the plaint but only an additional relief clause is sought for possession, and therefore amendment should be disallowed, is a wrong argument, inasmuch as, all the requisite CS(OS) 684/2004 Page 7 of 9

8 ingredients for the plaintiff to claim ownership of the properties already exist in the plaint, and therefore no further averments are required to be made in the plaint. Therefore only the prayer clause had to be amended to include the relief of possession and which is sought to be done by means of the present application including by amending pecuniary jurisdiction clause and of course plaintiff will be liable to pay the ad valorem court fees on the amendment being allowed. 11. Also, it cannot be argued that plaintiffs are withdrawing any admission for disallowing amendment because plaintiffs in the existing plaint have stated the fact that the plaintiffs are in possession but now are claiming the relief of possession by stating that plaintiffs are out of possession, inasmuch as, the principle of disallowing the withdrawal of amendment is to ensure that an averment made for the benefit of the opposite party which is an admission should not be allowed to be withdrawn. The principle cannot be extended to disallow amendment to suit plaint whereby the relief of possession is sought of the suit property or properties, more so on account of objections raised by the defendant nos. 1 to 3 in their written statement in terms of Section 34 of the Specific Relief Act. CS(OS) 684/2004 Page 8 of 9

9 12. In view of the above, application filed by the plaintiff is allowed. I.A stands disposed of. CS(OS) 684/ In view of allowing of application being I.A No /2012, amended plaint along with appropriate court fees be filed within a period of four weeks. Written statement to the amended plaint be filed on behalf of the defendant nos. 1 to 3 within a period of four weeks thereafter. Replication be thereafter filed within four weeks. 14. Parties will file original documents in their power and possession limited to the amendment now granted alongwith their amended pleadings and admission/denial of the documents be done by filing an affidavit attaching thereto an index of documents of other side which will contain an additional column of endorsement of admission/denial. 15. List before the Joint Registrar for admission/denial of documents on 22 nd February, List in Court for framing of issues on 14 th March, DECEMBER 08, 2015 ib VALMIKI J. MEHTA, J CS(OS) 684/2004 Page 9 of 9

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