Meena Aggarwal vs Yashpal Seth and Another

Paramjeet Singh, J.—Instant civil revision has been filed under Article 227 of the Constitution of India for setting aside the order dated 13.08.2013 (Annexure P-4) passed by learned Additional Civil Judge (Sr. Divn.), Kurukshetra whereby application filed by the petitioner-plaintiff for amendment of plaint has been dismissed. Shorn of unnecessary details, the facts relevant for disposal of the present petition are to the effect that the plaintiff filed suit for mandatory injunction along with consequential relief of permanent injunction against the defendants. Upon notice, defendant No. 1 filed written statement alleging in para 3 of the preliminary objections that the plaintiff obtained general power of attorney dated 25.03.1998 with respect to the suit property to look after it. Defendant No. 1 suspecting fraud and cheating, cancelled the said general power of attorney vide cancellation deed dated 04.05.2006. Para 3 of the preliminary objections is reproduced as under:

That the claim of the plaintiff is based on fraud, forgery and cheating on the part of plaintiff and concealment of true and material facts from the court by plaintiff and plaintiff has based the suit on misrepresentation of facts and hence the suit is liable to be dismissed with costs. The true facts of the suit are that the defendant No. 1 is 100% blind person and he is blind since birth and the defendant No. 1 cannot see from eyes. The plaintiff obtained one general power of attorney dated 26.03.1998 concerning the suit property to look after the suit property but the defendant No. 1 suspected fraud and cheating in plaintiff, then the defendant No. 1 cancelled the said GPA vide cancellation deed No. 22 dt. 4.5.2006 registered in the office of Sub Registrar, Thanesar. The answering defendant had also come to know that at the time of getting GPA on 25.3.1998, the plaintiff had also forged and fabricated one will in her favour and the defendant No. 1 has cancelled the said Will in the said Cancellation deed No. 22 dt. 4.4.06 referred to above and the defendant No. 1 came to know about the alleged agreement when the defendant No. 1 received the summons of this suit. The defendant No. 1 never executed any alleged agreement in favour of the plaintiff nor the defendant No. 1 was competent to execute such agreement dated 25.03.98 as alleged in plaint because the HUDA allotted the said plot to defendant No. 1 vide memo No. 8390 dt. 7.6.1996 and till expiry of ten years from the date of allotment, the defendant No. 1 cannot execute such document of sale nor can sell the said plot. Hence, the alleged agreement dt. 25.3.98 is proved to be false and forged document, and as per settled law agreement does not confer any right, title or interest in plaintiff and so present suit cannot proceed. All these facts have been concealed by the plaintiff and plaintiff deserves no sympathy or relief from this Hon''ble Court.

After filing of written statement, the plaintiff moved application for amendment of plaint. By way of amendment, the plaintiff wants to seek declaration to the effect that the cancellation deed No. 22 dated 04.05.2006 is illegal, null and void and not binding on the rights of the plaintiff and, therefore, the plaintiff wants to make the following amendment in plaint. The plaintiff wants to substitute the head-note of plaint which reads as under:

Suit for Declaration and Mandatory Injunction with consequential relief of Permanent Injunction.

The plaintiff also wants to add para 3-A in plaint which reads as under:

3-A That all the rights as of a owner of the plot in question were given to the plaintiff by the defendant No. 1 vide General Power of Attorney dated 25.03.1998 registered in the office of Sub-Registrar, Thanesar at Serial No. 659/4 dated 25.3.1998, after receiving full and final consideration. Therefore, the above said Power of Attorney is irrevocable and the plaintiff has been in peaceful possession of the plot as owner thereof. The defendant No. 1 has no concern whatsoever with the plot in dispute and has no right to revoke or cancel the power of attorney. The cancellation deed No. 22 dated 4.5.2006 registered in the office of Sub Registrar, Thanesar is illegal, null and void and not binding on the rights of the plaintiff. Moreover, the said Cancellation Deed pertains to General Power of attorney registered at Serial No. 651 dated 25.3.1998 and not with regard to General Power of Attorney registered at Serial No. 659 dated 25.3.1998 pertaining to the plaintiff. Hence the said cancellation deed is mere a waste paper and carries no value in the eyes of law. It is pertinent to mention here that the defendant No. 1 remained silent for a period of about eight years and got the power of attorney cancelled only after the plaintiff cleared all the outstanding dues of the plot. Even otherwise, no notice whatsoever regarding the said cancellation has been given to the plaintiff at any time. As such, the cancellation deed No. 22 dated 4.5.2006 and subsequent entries in the record of right on a basis, has no effect on the rights of the plaintiff and the same is liable to be set aside.

In prayer clause, the plaintiff wants to add following lines after the words "Decree for" and before the words "Mandatory Injunction" in 2nd line which read as under:

Declaration to the effect that the cancellation deed No. 22 dated 4.5.2006 regarding cancellation of power of attorney dated 25.3.1998 as well as Will and subsequent entries in the record of right are illegal, null and void and not binding on the rights of the plaintiff in any manner, along with a decree for .....

Vide impugned order dated 13.08.2013, the said application has been dismissed by the trial Court. Hence, this revision petition.

I have heard learned counsel for the parties and perused the record.

The application for amendment of plaint was moved on 28.07.2008 before commencement of the proceedings and amendment has been sought only because the general power of attorney and Will executed in favour of the plaintiff by defendant No. 1 were allegedly cancelled vide cancellation deed No. 22 dated 04.05.2006. The notice of the same was not given to the petitioner. This fact has come to the knowledge of the petitioner after filing of written statement by defendant No. 1. Thereafter, the application for amendment of plaint has been immediately moved. At the time of filing of application for amendment, even replication was not filed. Since the proceedings have not commenced in suit, trial Court should have been liberal in granting amendments so as to completely resolve the controversy between the parties. The trial Court has taken five years in deciding application for amendment. In view of above, the instant revision is allowed, the impugned order dated 13.08.2013 is set aside and application dated 28.07.2008 moved by the plaintiff for amendment of plaint is allowed, subject to costs of Rs. 7,000/- to be deposited with the District Legal Services Authority, Kurukshetra. In case the amended plaint is already on the file of trial Court, the same be taken on record and if not already on file, the plaintiff shall be afforded an opportunity to file amended plaint.