Hasina Khatoon Vs. Competent Officer and ors. - Court Judgment

Usha Mehra, J.

(1) Petitioner, Smt.Hasina Khatoon wants to amend her prayer clause in the writ petition, inter alia, on the grounds that in the prayer clause (ii) she has given property number, but inadvertently the place where it is situated has not been mentioned. Hence by amendment in prayer clause (ii) she wants to add the location of the property situated.

(2) So far as this amendment in the relief clause is concerned, counsel for the respondent has no objection. Hence, amendment pertaining to relief number (ii) indicating the location of the property in question is hereby allowed.

(3) As regards the second amendment sought, the main contest by the respondent is that it amounts to setting up a new case. Moreover, it is beyond the case set up by the petitioner in the main petition.

(4) The petitioner wants to add that the respondent concealed from this Court that he has got a sister, who has share in the property. By concealing these facts respondent committed a fraud. Respondents 4 and 5 i.e. Giasuddin and his brother Wahabuddin and respondent No.6 Sh.Shahabuddin made a statement before the competent authority, admitting therein that they have sister Anwari Begum. But this fact had been concealed by respondent No.4 before the competent authority. Had this fact been told then Anwari Begum, sister of respondents 4 to 6, would have also got a share in this property? Her share has neither been purchased by anyone nor has been determined by a competent authority. As a result of this concealment fraud has been played with the Court. These facts the petitioner wants to add.

(5) The amendment has been contested, inter alia, on the grounds that in the present writ petition, the petitioner has challenged the order of the competent authority as well as of the appellate authority on the grounds that the objections filed by the petitioner against the order of handing over physical possession of the property in question was wrongly rejected. The authorities concerned did not consider the relevant provisions of law while rejecting the objections. This Court cannot consider the objection which the petitioner now wants to add, because this objection was not before the competent authority when it passed the impugned order. Hence such an amendment cannot be allowed.

(6) Admittedly, in this writ petition the grievance of the petitioner is that consequent upon the issuance of certificate of sale an application was moved by respondents 4 to 11 to the Competent Officer on 8.1.1979 seeking delivery of physical possession in terms of Rule 11(e)(v) of the Evacuee Interest (Separation) Rule,1955 (hereinafter called the Rules). The competent authority issued show cause notice to the petitioner. The petitioner in response to the said show cause notice filed the following objections:-

1.That there is no provision under the Act and Rules for evicting the occupant much less a co-sharer in the property and for delivering possession to the Auction purchaser. 2. That no notice has been given to Nur Mohd. who is in the second floor portion of the suit property in his own independent occupational rights. 3. That allegations in the application that the petitioner has accepted the cost of her share are absolutely wrong. Thus, it was stressed by the petitioner that only symbolic possession is considered expedient by reason of the nature of the composite property.

(7) The said objections were dismissed by the competent authority vide order dated 26th August,1991. Against that order of the competent authority, an appeal was preferred urging that the dismissal was against law and not sustainable, more particularly so when there was no provision in the Evacuee Interest (Separation) Act,1951 (hereinafter called the Act) directing the delivery of physical possession. Respondent No.2, the appellate authority also dismissed the appeal vide order dated 30th October,1991. It is against these two orders that present writ petition was filed assailing those orders on the ground that those were against the Act and the Rules. According to the petitioner, the case of the respondent is covered under Section 10(a)(iii) of the Act. Once Section 10(a)(iii) of the Act applies then Rule 11(E)(5) does not apply to such a case. Section 10(a)(iii) of the Act does not empower the Court to deliver physical possession. Such powers are only given in Section 10(a)(i) and Section 10(a)(iv) of the Act. The legislature has not given power to the competent authority to deliver physical possession in case of sale. Moreover Rules are contrary to the Act and the statute. These have been framed by a non legislative body, thereforee, not applicable. Hence, the competent authority as well as the appellate authority ignored the provision of law. The same competent authority had in similar other cases gave the finding that physical possession to a auction purchaser under Section 10(a)(iii) of the Act cannot be given. But in the case of the petitioner provision of Section 10(a)(iii) have been applied by the same authority, hence this petition. The petitioner challenged the order of dismissal because of wrong interpretation of Section 10(a)(iii) of the Act and the Rules given by the authorities. Mr.Bhalla appearing for the respondent rightly contended that in case this amendment is allowed it would mean setting up a new case on facts. This court the petitioner wants to stepinto the shoes of the competent authority which decided the objections. In fact these objections were not before the competent authority or for that matter before the appellate authority, now if the amendment is allowed and objections heard it means this Court assume the position of the competent authority. Moreover, disputed questions of facts cannot be gone into in a writ petition. This being a disputed question of fact the better recourse for the petitioner was to raise this objection before the competent authority and not by way of writ petition. The order of the competent authority and the appellate authority has been assailed primarily on legal grounds seeking interpretation of Section 10 of the Act and of the Rules. thereforee, the plea of fraud which the petitioner now wants to incorporate is neither necessary nor proper for the complete and effective adjudication of this writ petition. It is also not necessary for the determination of real controversy between the parties.

(8) For the purpose of allowing amendment certain conditions must be satisfied; namely (i) amendment should be necessary for the purposes of determining real question and controversy between the parties, and (ii) the amendment should not work injustice to other side. Basing on this principle, one can say that the plea of fraud and concealment of facts which the petitioner now wants to incorporate do not touch the real controversy raised in this writ petition. thereforee, on the face of it, the amendment sought does not fall into the criteria/ principle set out above. Reference can also be made to the decision of our own High Court in the case of Raj Narain Aggarwal, V. Baij Nath Khanna : AIR1984Delhi155 , where this Court opined that before allowing application under Order 6 Rule 17 of Civil Procedure Code ., the Court is bound to examine if the amendment sought was necessary for the determination of the real question in controversy between the parties and to disallow if it was unnecessary, irrelevant or vexatious.

(9) To the same effect are the observations of this Court in the cases of Mst.Feroza Begam and Ors V. Dewan Daulat Rai Kapoor and Ors. : AIR1975Delhi1 and S.P.Sehgal V. Smt.Vidya Kaul : AIR1990Delhi117 .

(10) On the other hand reliance by Mr.Nayyar on the decision of this Court in the case of Sh.Shyam Babu Gupta V. M/s Attri Foundation and Anr. 1995 (1) Ad (Delhi) 661 is misplaced. In that case the Civil Revision arose assailing the order of an Additional District Judge dismissing the application of that petitioner under Order 6 Rule 17 of Civil Procedure Code . In that suit plaintiff sought possession under Section 6 of the Specific Relief Act. Written statement was filed and issues were struck. During the course of proceedings, that plaintiff filed an application for amendment. By that amendment he wanted that the title of the plaint should be read as 'Suit for possession' instead of 'Suit for possession under Section 6 of the Specific Relief Act'. In para 19 about the valuation of the suit he wanted it to be read that the value of the suit for the purposes of court fee and jurisdiction be fixed at Rs. 90,000.00 on which a court fee of Rs. 322.40 he had paid. This amendment was disallowed. This court while allowing the Revision Petition against the order of rejection held that the amendment sought was consequential and did not change the nature of the suit already set up. There cannot be any quarrel with the proposition of law laid down in that case. But I am afraid the ratio of that case is not applicable to the facts of the present case. As already observed above, in this writ petition primarily the petitioner has assailed the order of the competent authority on the ground that his objections had been wrongly rejected. The authority did not interpret the Act and rules hence injustice has been caused to the petitioner. The present amendment, to my mind, is irrelevant for the determination of this writ petition. These facts in no way help in interpreting the Act or the rules. Hence the decision quoted by Mr.Nayyar is of no help to him.

(11) MR.BHALLA, counsel for the respondent also challenged the amendment on the ground of delay. Normally such an objection cannot be sustained, because the Supreme Court in umpteen number of cases has held that if the amendment is relevant and goes to the root of the case but does not change the cause of action already set up and is necessary for the proper adjudication of the real controversy involving the parties, then such an amendment be allowed even if belated. Since in this case, I have already observed that the amendment sought is unnecessary for the complete and effective adjudication of the real issue raised in this writ petition. The amendment sought being after a lapse of considerable long time, for which no Explanationn has been rendered as to why this objection was not filed before the competent authority or the appellate authority, hence cannot be allowed now. The present application has been filed in January,1995 whereas the writ petition was filed in 1991. In para 6 of this application it has been very vaguely stated that the petitioner has now learnt, whereas as per petitioner's own showing respondents and petitioner are litigating since 1980. The statements which petitioner wants to rely are of 10th December,1982 and 22nd April,1984 respectively. The present petitioner was a party to all those cases in which these statements were made. Parties to this writ petition are living in the same house even prior to 1962, hence she cannot be allowed to say that she has now learnt that the sale certificate had been issued by the competent authority in respect of aforesaid property in which Anwari Begum had a share. 12. For the reasons stated above, I find no merit in the second amendment sought for in the application and the same is disallowed. Hence the application is allowed partly. Petitioner is directed to file amended writ petition indicating the location of the property in relief clause. This may be done within four weeks.