HIGH COURT OF HIMACHAL PRADESH

O M P (Original Miscellaneous Petition); Civil Suit

676 of 2021; 24 of 2020

EIH ASSOCIATED HOTELS LIMITED - Complainant(s)

Versus

PARAMJET KAUR (DELETED) & ANOTHER - Opp.Party(s)

BEFORE: Vivek Singh Thakur

R L Sood (Senior Advocate), Arjun Lal, Ashok Sood (Senior Advocate), Khem Raj

19 Jun 2023

ORDER

Vivek Singh Thakur, J.

[1] This application has been preferred by plaintiff under Order 6 Rule 17 of the Code of Civil Procedure (for short "CPC") seeking amendment in the plaint by adding sentences in para 4 of the plaint and insertion of para 4A after para 4 of the plaint.

[2] Stage of the suit is that written statement stands filed and replication thereto is yet to be filed.

[3] Plaintiff has filed a suit claiming ownership of plaintiff on entire Cecil Hotel Estate including the Hotel Oberoi Cecil of which Cecil Annexee also forms a part and parcel thereof.

[4] In the written statement objection has been taken by the defendant that owner of the property is Bhagwanti Oberoi Charitable Trust and not the plaintiff and, therefore, locus of plaintiff has been disputed to maintain the suit.

[5] By way of proposed amendment, plaintiff seeks addition of certain sentences in para 4 of the plaint, stating therein that plaintiff is owner of structure known as Regent House Apartments and the said structure has been built on land which is property of Bhagwanti Oberoi Charitable Trust and plaintiff Company's predecessor-in-interest EIH Limited was granted a permanent license by the aforesaid Trust to build and construct the aforementioned apartments by expending its own funds and, therefore, plaintiff Company is owner of the structure compromising of aforesaid Apartments i.e. Regent House and Bhagwanti Oberoi Charitable Trust continues to be the owner of the land beneath the Apartments on which it has been built.

[6] By inserting para 4(A), the amendment has been sought on the same lines that owner of land beneath the construction of structure is Bhagwanti Oberoi Charitable Trust, who has granted a license in favour of EIH (now EIH Associated Hotels Limited) to built the flats in question and further that rent collected from the Regent House Apartments is collected for the benefit of present plaintiff and not for Bhagwanti Oberoi Charitable Trust. Further that defendant No. 1 has always acknowledged EIH Associated Limited to be the owner of the suit property in reference and, therefore, earlier EIH limited was the owner of the suit property in question and now EIH Associated Limited is owner for all intents and purposes and rent receipts were always issued by the plaintiff Company.

[7] Aforesaid application has been opposed by defendant on various grounds interalia amongst others, by filing reply, stating therein that plaintiff is not the owner of the suit property, but a Trust and, therefore, suit related to property owned and possessed by Trust is not maintainable in the present form, but a suit pertaining to land and property owned by Trust is maintainable only if it is filed by all Trustees of the Trust and other persons or Company including plaintiff has no authority to do so. It has been further submitted that in case amendment sought is allowed, it will change very nature of the suit causing prejudice to the entire defence set up by defendants.

[8] It has been further contended that by way of proposed amendment plaintiff Company wants to withdraw its admissions and to introduce totally new case of irrevocable license, which is neither permissible under law nor on facts.

[9] It has been further contended on behalf of defendant that in revenue records and factually also Bhagwanti Oberoi Charitable Trust is recorded as actual owner in possession of the suit land and no permanent license has been granted in favour of plaintiff or its alleged predecessor-in- interest Company. Further that a new case is being introduced which is totally different and inconsistent with pleas earlier taken in the plaint. It has been stated on behalf of defendant that new plea sought to be added with regard to ownership of the suit property is totally inconsistent, which will change fundamental nature of the suit and, therefore, present application deserves to be dismissed.

[10] Learned counsel for the plaintiff has placed reliance upon pronouncement of the Supreme Court in Raj Kumar Bhatia Vs. Subhash Chander Bhatia, 2018 2 SCC 87 and N.C. Bansal Vs. Uttar Pradesh Financial Corporation and another, 2018 2 SCC 347.

[11] In Raj Kumar Bhatia's case, the Supreme Court has observed as under:-

"12. This being the position, the case which was sought to be set up in the proposed amendment was an elaboration of what was stated in the written statement. The High Court has in the exercise of its jurisdiction under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the appellant in the amendment. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction under Article 227. In Sadhna Lodh v National Insurance Company, 2003 3 SCC 524 this Court has held that the supervisory jurisdiction conferred on the High Court under Article 227 is confined only to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction. In the exercise of its jurisdiction under Article 227, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or tribunal has passed an order. The Trial Court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under Order 6 Rule 17 of the CPC. There was no reason for the High Court to interfere under Article 227. Allowing the amendment would not amount to the withdrawal of an admission contained in the written statement (as submitted by the respondent) since the amendment sought to elaborate upon an existing defence. It would also be necessary to note that it was on 21 September 2013 that an amendment of the plaint was allowed by the Trial Court, following which the appellant had filed a written statement to the amended plaint incorporating its defence. The amendment would cause no prejudice to the Plaintiff."

[12] In N.C. Bansal's case, the Supreme Court has observed as under:-

"17. 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."

[13] Present suit is at initial stage. Trial has yet to begin and by proposed amendment sought in the plaint, there is no proposal to change the nature of the suit or the relief sought therein. For considering the prayer for amendment sought in the pleadings, merit of the case, proposed to be set up by the application for amendment, is not to be gone into. In present case, amendment sought to be carried out in the plaint is clarificatory in nature with respect to ownership and possession and entitlement of plaintiff for filing the suit. In case, as contended in the reply to the application, the said claim of the plaintiff is not true, contrary to revenue record or without support of any document or license from the owner, then such plea is to be considered and decided by the Trial Court on conclusion of trial after framing of issues and giving opportunity to the parties to lead evidence to substantiate their claim in their respective pleadings.

[14] In my opinion, particularly in view of unamended para 2 of the plaint, it cannot be said that the amendment sought by the plaintiff would amount to permit the plaintiff to withdraw an admission contained in the plaint or the document including notices issued on behalf of plaintiff to the defendant. Claim of the plaintiff regarding the ownership of Trust and issuance/granting license to the plaintiff to construct structure thereon, if disputed in the written statement, are facts yet to be proved by the plaintiff by leading cogent and reliable evidence to substantiate the same and in case defendant has revenue record contrary to the claim of the plaintiff, then defendant shall also have equal opportunity to rebut the claim of the plaintiff. The plea taken in response to the prayer for amendment, as also recorded in the reply to the application with regard to correctness or truthfulness of the pleading of the plaintiff proposed to be incorporated, has to be considered during the trial and defendant shall have right to rebut the same by placing on record relevant evidence in this regard in accordance with law.

[15] Keeping in view the aforesaid facts including stage of the suit, nature of amendment sought, I am of the considered view that amendment sought to be carried out in the plaint is explanatory in nature which is elaborating the stand of the plaintiff. Whether the said version is true or false, sustainable or likely to be dismissed, is to be evaluated during adjudication of the trial by the Trial Court, therefore, this amendment deserves to be allowed.

[16] Keeping in view the stage of the suit, I am of the view that alleged proposed amendments is explanatory and elaborating and proposed amendment in the plaint shall not cause any prejudice to the defendant as the defendant shall get an opportunity to respond/rebut the plea taken in the plaint and, therefore, amendment sought to be incorporated in the plaint is allowed. Amended plaint be taken on record at appropriate place.

The application stands allowed and disposed of in aforesaid terms.

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