Judgment:
Sanjay Kishan Kaul, J.
1. The respondent filed a suit for declaration and permanent injunction on 19.11.2002 against five defendants in respect of land measuring one bigha eight bids was situated in Revenue Estate of Village Nangli Sakrawati, Delhi. The land was stated to have been purchased by the respondent vide a registered sale deed from original defendants No. 2 to 5 who were the sons and daughters of Sh. Bhagat Ram. Respondent claimed to be in possession of the land of which mutation had been done in the revenue record. The respondent claimed that a small boundary wall was constructed by him as was permissible under the Delhi Land Reforms Act when original defendant No. 1 started claiming rights in the land forming part of the khasra No. 195/2 measuring one bigha on the basis of some forged and fabricated documents. Since attempt was made by original defendant No. 1 to dispossess the respondent on 18.11.1992 a suit for declaration and injunction was filed in order to establish the title of the respondent and to preserve his peaceful possession. It may be stated that the present petitioners are the legal heirs of late Sh. Kashmiri Lal-original defendant No. 1.
2. Sh. Kashmiri Lal contested the suit by filing a written statement along with the counter claim. The possession of the respondent in the suit land was denied and Sh.Kashmiri Lal claimed in the counter claim that he was entitled to a decree for declaration of absolute ownership of the land in plot No. 195/2. The original defendants No. 2 to 5 were proceeded ex parte and did not contest the suit. The allegation of late Sh. Kashmiri Lal is that they were colluding with the original plaintiff.
3. The trial court framed issues on 03.08.2001 which were again re-framed on 31.01.2002 and again on 12.08.2004 At this stage an application was filed by the plaintiff under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (herein-after referred to as the said Code) to amend the plaint. In the application it is averred that original defendant No. 1 had filed another suit on the basis of a sale deed of 1975 and it had come to the knowledge of the plaintiff that the two sale deeds relied upon dated 02.05.1973 and 10.05.1975 were forged and fabricated documents and were void ab initio. Original defendant No. 2 had no authority to execute the sale deeds in 1973. It is further alleged that original defendant No. 5 was a minor in 1973 and was incapable of executing a general power of attorney. A declaration is sought to the effect that the two sale deeds as well as the general power of attorney dated 13.03.1972 were null and void.
4. The aforesaid application was contested by original defendant No. 1, predecessor in interest of the petitioners herein. Apart from the general objections it has been stated that the defendant No. 1 had specifically relied upon the power of attorney dated 13.03.1972 in the written statement which was not even challenged by the plaintiff. In the replication no defense was raised and, thus, the proposed amendments are barred by limitation and, thereforee, the amendment cannot be allowed. In addition, the original defendant No. 1 stated that even after perusal of the written statement filed by the defendant No. 1, the original plaintiff took no steps to amend the plaint and the plea that the two documents came to the notice of the plaintiff in the year 2004 was not tenable as the written statement is dated 16.12.1992.
5. The plaintiff did not dispute that there was delay in filing the application but raised the plea that no prejudice would be caused to defendant No. 1 especially since the plaintiff had already sought a decree to the effect that he be declared owner of the suit property. Thus, if the said relief was to be granted the documents executed in favor of defendant No. 1 were in any case liable to be declared null and void.
6. The trial court in terms of the order dated 18.07.2005 has allowed the application of the respondent and thus the petitioners aggrieved by the same have filed the present proceedings under Article 227 of the Constitution of India.
7. A perusal of the impugned order shows that insofar as some typographical errors were sought to be corrected by the respondent the petitioners did not even object to the same. The real dispute is in relation to the relief of declaration in respect of two sale deeds and the power of attorney. The trial court is of the view that in case the original relief claimed for in the plaint is allowed, it would in any case amount to divesting the original defendant No. 1 of the title in the property. Not only that original defendant No. 1 had also filed a counter claim to be declared as the absolute owner and in possession of the plot which is based on a sale deed dated 28.02.1992. The question as to who is the owner of the property was very much an issue. Since the basic structure of the suit would not change and the amendment was necessary to determine the real question of controversy between the parties, the application was allowed. The trial court also observed that even if the proposed amendments are barred by limitation the same can be allowed under certain circumstances.
8. Learned counsel for the petitioner contended that the factum of three documents being executed being the general power of attorney dated 13.03.1972 and the registered sale deeds dated 02.05.1972 and 10.03.1975 were known to the respondent on or about 16.12.1992 when the written statement was filed by the original defendant No. 1, thus the time period for filing any application seeking cancellation of those documents expired in the end of December, 1995. The application filed after more than 12 years thus ought not to have been allowed as valuable rights had accrued in favor of the petitioners by lapse of time.
9. Learned counsel for the petitioner referred to the judgment of the Apex Court in Radhika Devi v. Bajrangi Singh and Ors. : [1996]1SCR768 where an application filed under Order 6 Rule 17 of the Code for amendment of a plaint in a partition suit was disallowed. On the plaint being filed the defendant had taken a specific objection in the written statement about the gift deed made in his favor regarding the property in dispute. However the amendment seeking declaration that the gift deed was obtained illegally and fraudulently was filed beyond a period of limitation and thus it was held that the defendant acquired a right by bar of limitation and the amendment if allowed would defeat the said right.
10. Learned counsel for the respondent on the other hand has referred to the judgment of the Supreme Court in L.J. Leach and Co. Ltd. v. Messrs Jardine Skiner and Co. : [1957]1SCR438 . The case related to a suit filed in respect of a contract giving exclusive rights to sell a product. The suit was for damages for conversion alleging that the goods in question were due to the plaintiff under the government quota and the defendants who had ordered them on their behalf had no title to them. The plaintiffs averred that in importing the goods the defendants were acting as their agents. The defendants resisted the suit alleging that the property in goods was with the defendants. The suit was decreed but the judgment was reversed in appeal where after the matter came to the Supreme Court. It was at that stage that the plaintiffs applied before the Supreme Court for amendment of the plaint by raising in the alternative a claim for damages for breach of contract for non delivery of goods which application was resisted. The Supreme Court however held that it was a fit case in which the amendment ought to be allowed. It was held that the plaintiffs had not claimed any damages for wrongful termination of the agreement but the claim is only damages for non delivery of goods in respect of orders passed by them and accepted by the defendants prior to the termination of the agreement by that notice. The agreement between the parties contained an express clause reserving the rights to the plaintiff. It was thus held that the suit being founded on a claim based on a clause in the contract could not be said to be foreign to the scope of the suit. All the allegations which were necessary for sustaining the claim for damages for breach of contract were already in the plaint and what was lacking was only the allegation that the plaintiff in the alternative was entitled to claim damages for breach of contract by the defendants in not delivering the goods.
11. Learned counsel for the respondent also relied upon the judgment of the Supreme Court in Pankaja and Anr. v. Yellapa (D) by LRs and Ors. : AIR2004SC4102 . It was held that the amendment of pleadings sought after substantial delay could be allowed even if barred by limitation if that sub- serves the cause of justice and avoids further litigation. The suit was originally filed for permanent injunction restraining interference with possession. The amendment sought declaration of title and a dispute arose whether the declaration sought was barred by limitation. It was held that since factual details as regards title were already mentioned in the plaint it could not be said that the amendment was for a new relief. The judgment relied upon an earlier judgment in L.J. Leach and Co. Ltd.'s case (supra).
12. On consideration of the submissions advanced by learned Counsel for the parties, I am of the considered view that the impugned order cannot be said to suffer from a patent error or erroneous exercise of jurisdiction by the trial court. It is trite to say that normally a claim which is barred by time ought not be incorporated through the process of amendment but there is no absolute bar. The court is not without jurisdiction in appropriate cases to allow such an amendment if it sub-serves the cause of justice and avoids further litigation. The facts in Pankaja and Anr.'s case (supra) are apposite to the present case. In the said suit also the original claim was for permanent injunction restraining the interference from possession and declaration had not been sought which was subsequently sought to be incorporated through amendment application. It may be noticed that the suit was filed on 01.07.1994 and the written statement had been filed on 17.09.1994 but despite this the amendment application seeking declaration filed on 27.07.2000 was allowed.
13. In the present case the respondent had sought a declaration of his title as well as relief of injunction. Undisputedly the factum of documents executed and registered in favor of original defendant No. 1 had come to light when the written statement was filed in December, 1992. The point however remains that if the respondent is entitled to a decree in the suit the question of title of the petitioner is bound to arise. Not only that the petitioners have also filed a counter claim. In my considered view the nature and character of the suit does not change and though specific relief for cancellation of general power of attorney and the two sale deeds was not originally incorporated in the plaint relief in respect of the same arises from the case set up in the plaint itself. It is a matter of rival claims to title in respect of land in question by the two set of parties. Thus the substratum for the relief had already been laid in the original plaint. The approach to be taken in matters of amendment has been set out in a recent judgment of the Supreme Court in Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. : AIR2006SC1647 ; where it has been observed that the object of Order 6 Rule 17 of the Code is that the court should try the merits of the case that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the either side. The rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in larger interest of doing full and complete justice to the parties before the court. Thus, the court should always give leave to amend pleadings of a party unless it is satisfied that the party applying was acting malafide. The amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice.
14. It was further observed the the provisions of Order 6 Rule 17 of the Code contained two parts. The first part is discretionary (may) and leaves it to the court to order amendments of pleadings while the second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for purposes of determining the real question in controversy between the parties. Thus, the real question in controversy is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties. The court is not required to go into the correctness or falsity of the case at the stage of the amendment.
15. If the aforesaid parameters are applied, I have no doubt that the amendment ought to have been allowed as was done by the trial court. However, one factor which cannot be lost sight of is the inordinate delay on the part of the respondent in seeking the amendment. In terms of the impugned order of the trial court, inconvenience to the petitioners is sought to be compensated by imposition of costs of Rs. 2,500/-. If the large delay is taken into consideration and the litigation cost over this period of time, I am of the considered view that the cost imposed is too nominal to compensate inconvenience to the petitioners and thus are liable to be enhanced to Rs. 10,000/-.
16. The impugned order of the learned Civil Judge dated 18.07.2005 allowing the application for amendment of the plaint of the respondent is sustained but with the modification that the respondent shall be liable to pay costs to the petitioners of Rs. 10,000/- instead of Rs. 2,500/- as imposed by the trial court. The costs to be tendered on the next date of hearing before the trial court.
17. The petition stands disposed of leaving parties to bear their own costs.