N.C. Bansal vs Uttar Pradesh Financial Corporation

CIVIL APPEAL NO.882 OF 2018 (Arising out of S.L.P.(c) No. 9651 of 2017)

N.C. Bansal ….Appellant(s)

VERSUS

Uttar Pradesh Financial Corporation & Anr. ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal is filed by the plaintiff against the

final judgment and order dated 19.12.2016 passed

by the High Court of Delhi at New Delhi in CM(M) Signature Not Verified Digitally signed by ASHA SUNDRIYAL No. 1223 of 2016 whereby the High Court dismissed Date: 2018.01.25 16:22:25 IST Reason: 1 the petition and upheld the order of the Trial Court

dated 21.09.2016 in Civil Suit No.7930 of 2016.

3) In order to decide the short question, it is not

necessary to set out the facts in detail and

mentioning of the few facts alone would suffice.

4) The controversy involved in the appeal is

whether the two Courts below were justified in

dismissing the three applications filed by the

plaintiff in a pending suit, namely, (i) application

under Order 7 Rule 14 of the Code for filing of

documents, (ii) application under Order 6 Rule17 of

the Code seeking amendment in the plaint, and (iii)

application seeking directions against the

respondents for production of some original

documents.

5) The appellant is the plaintiff and the

respondents are the defendants in the suit out of

which this appeal arises.

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6) The appellant (plaintiff) has filed a civil suit

being Civil Suit No. 252/2005 now renumbered as

(C.S. No 7930/2016) against the respondents

(defendants) in the Court of JSCC-Cum ASCJ-cum-

Guardian Judge (West) Delhi.

7) The appellant's suit is for a declaration and

permanent injunction in relation to certain

properties (hereinafter referred to as "the suit

property”). The appellant has claimed the following

reliefs:

“It is, therefore, most respectfully prayed that the Hon’ble Court be pleased - to pass the decree of declaration as the said property (at the second floor) bearing No.21 NWA Club Road, Punjabi Bagh Extn., New Delhi-110026 is not a collateral security or not a mortgage property under the defendants and also to pass a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants its agents, servant, attorneys, nominees etc. etc. from taking forcible possession or selling of the said premises bearing No.21, NWA Club Road, Punjabi Bagh Extn., New Delhi-110026 (situated at second floor on plot no.21 in NVVA in the layout plan of the Adarsh Shawan Co-op. House Building Society Ltd.

3 Colony known as Punjabi Bagh Extn. In the area of Viii Madipur, Delhi-110026 as shown in red colour in the site plan and from creating any interference in the use and enjoyment of the said property, in the interest of justice.

Any other relief, which this Hon’ble Court may deem fit and proper be also passed in favour of the plaintiff and against the defendants along with the cost of the suit.”

8) The respondents have filed their written

statement and denied the appellant's claim set up

in the plaint. The respondents, however, also raised

certain legal objections regarding the

maintainability of the appellant's suit. The Trial

Court upheld the objections raised by the

respondent and accordingly dismissed the

appellant's suit vide judgment/decree dated

20.09.2011 in the initial stage itself as not

maintainable.

9) The appellant felt aggrieved and filed appeal

being R.C.A. 121/14/11 before the Additional

District Judge, Tis Hazari Court, New Delhi. By

4 order dated 20.11.2014, the first Appellate Court

allowed the appellant's appeal and while setting

aside the judgment/decree of the Trial Court

remanded the case to the Trial Court for deciding

the suit on merits.

10) It appears that the respondents (defendants)

did not take up the matter to the High Court against

the order of the first Appellate Court and, therefore,

the case has now gone back to the Trial Court to

proceed with the trial in the suit.

11) After remand, the appellant (plaintiff), as

mentioned above, filed three applications in his

pending suit. One was under Order 7 Rule 14 of

Code seeking permission to file some additional

documents, second was an application under Order

6 Rule 17 seeking amendment in the plaint and the

third application was for a direction to the

5 respondents for production of some original

documents.

12) The respondents (defendants) opposed the

applications filed by the appellant. The Trial Court

by order dated 21.09.2016 dismissed the

applications filed by the appellant (plaintiff).

13) The appellant felt aggrieved and filed writ

petition under Article 227 of the Constitution of

India in the High Court of Delhi. By impugned

order, the Single Judge dismissed the appellant's

(plaintiff’s) writ petition and upheld the order of the

Trial Court.

14) Against the said order, the appellant(plaintiff)

has felt aggrieved and filed this appeal by special

leave in this Court questioning its legality and

correctness.

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15) Heard Mr. Shantanu Bansal, learned counsel

for the appellant and Mr. S.K. Misra, learned

counsel for the respondents.

16) Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are inclined to allow the appeal and while setting

aside the order of the Trial Court dated 21.09.2016

and also the impugned order of the High Court

allow the two applications filed by the plaintiff

(appellant herein), namely, application filed under

Order 7 Rule 14 and the application filed under

Order 6 Rule 17 of the Code.

17) We have perused the pleadings and also the

two applications under consideration filed by the

appellant. In our considered opinion, both the

applications filed by the appellant(plaintiff) should

have been allowed and he should have been

7 permitted to amend the plaint and file the additional

documents.

18) It is for the reason that firstly, the suit is still

at the initial stage, i.e., the trial has not yet begun;

Second, the proposed amendment sought in the

plaint does not change the nature of suit; Third, the

applications could not be said to have been filed by

the plaintiff belatedly because the suit had been

dismissed by the Trial Court as not maintainable in

its initial stages and for all these years it was sub

judice in appeal. It is only after the Appellate court

remanded the case to the Trial Court for its trial,

the appellant (plaintiff) filed the applications in the

suit and sought permission to amend the plaint and

file certain documents in support thereof; Fourth,

the Courts, in these circumstances, should have

been liberal in allowing the proposed amendment.

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19) So far as the filing of documents is concerned,

this application too should have been allowed on

the same grounds on which we have allowed the

amendment application. In other words, when the

suit is still at its initial stage and the trial is yet to

begin and when the documents filed are alleged to

be that of the respondents themselves having

obtained through RTI, there is no reason why the

appellant(plaintiff) be not allowed to file them.

20) So far as the third application for production of

documents by the respondents is concerned, no

argument was advanced by the learned counsel for

the appellant. We, therefore, uphold the order of its

rejection by the two Courts below. In other words,

our order is confined to consideration of only two

applications mentioned above.

21) We, however, make it clear that we have not

expressed any opinion either on the merits of the

9 proposed amendment or on the alleged documents

sought to be filed by the appellant. It is for the

appellant to prove the case set up in the plaint

including the amended pleadings so also to prove

the documents and its relevance in accordance with

law by adducing adequate evidence.

22) In view of forgoing discussion, the appeal

succeeds and is allowed. The impugned order is set

aside so also the order dated 21.09.2016 is set aside

to the extent indicated above. As a consequence, the

two applications filed by the appellant(plaintiff), i.e.,

one filed under Order 7 Rule 14 and the other

under Order 6 Rule 17 of the Code are allowed,

however, subject to the appellant paying a cost of

Rs.10,000/- to the respondents. Let the cost be paid

by the appellant to the respondents within one

month.

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23) Let the amendment be incorporated in the

plaint as proposed by the plaintiff in his application

for amendment within one month. The respondent

is granted an opportunity to amend their written

statement and make consequential amendment in

reply to the amended plea of the plaintiff (appellant).

24) The appellant(plaintiff) is also allowed to file

the additional documents, as prayed by him. The

respondent(defendant) is also granted an

opportunity to file additional documents in rebuttal,

if they so desire.

25) The Trial Court will then reframe the issues

arising in the case in the light of the original

pleadings and the amended pleadings and make an

endeavor to decide the suit in accordance with law

preferably within one year as an outer limit

uninfluenced by any observations made by the High

11 Court in the impugned order and our observations

in this order.

………...................................J. [R.K. AGRAWAL]

…...……..................................J. [ABHAY MANOHAR SAPRE] New Delhi;

January 25, 2018

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