RAJ KUMAR BHATIAversusSUBHASH CHANDER BHATIA

                      [2017] 12 S.C.R. 531


                       RAJ KUMAR BHATIA                                    A
                                  v.
                  SUBHASH CHANDER BHATIA
                   (Civil Appeal No.19400 of2017)
                        DECEMBER 15, 2017                                  B

      [DIPAK MISRA, CJI, A. M. KHANWILKAR AND
                 Dr. D.Y. CHANDRACHUD, JJ.]


       Code of Civil Procedure, 1908 - Or. VI, r.7 - Amendment of          C
written statement - Permissibility of - Held: In the original written
statement, the appellant had set up the plea that the property in
dispute was in the nature of joint family property and that even·
after the alleged deed of relinquishment, parties were living together
as members of a joint Hindu family - Thus, the case sought to be set
up by the appellant in the proposed amendment by introducing an            D
averment on the existence of coparcenary!Hindu undivided proper~v,
was an elaboration of what was stated in the written statement -
The amendment would cause no prejudice to the Plaintiff - High
Court in exercise of its jurisdiction u/Art.227 entered upon the me,rits
of the case which is impermissible - Whether an amendment should           E
be allowed is not dependent on whether the case which is proposed
to be set up will eventually succeed at the trial - Trial Court in the
exercise of its jurisdiction had allowed the amendment u/Or. VI,
r.17 - There was no reason for High Coart to interfere u!Art.227 -
Judgment of the High Court is set aside - Order passed by the Trial
Court allowing the amendment of the written statement is accordingly       F
affirmed - Constitution of India - Art. 227.
       Constitution of India - Art.227 - Power under, of High Court
- Scope of - Held: The supervisory jurisdiction of High Court
u/Art.227 is confined only to see whether an inferior court or             G
tribunal has proceeded within t.he parameters of its jurisdiction -
In the exercise of its jurisdiction u/A11.227, 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.
                                                                           H
                                  531
532           SUPREME COURT REPORTS                     12017] 12 S.C.R.



A             A rclim1uishment deed was executed, in respect of the suit
      property, by the appellant and the respondent in favour of their
      mother 'S''. 'S' permitted the appellant and the res11ondent to
      reside along with her in the property. However, she filed a suit
      iilter a/ia for recovery of possession against the appellant wherein
      the respondent joined as a co-plaintiff. An application was filed
B
      by the appellant for amendment of the written statement, which
      was allowed. Writ petition filed by the respondent challenging
      the said order was allowed. Hence, the present appeal.
            Allowing the appeal, the Court

c           HELD: 1.1 In the original written statement, the appellant
      had set up the pica that the property in dispute was in the nature
      of joint family property and that even after the alleged deed of
      relinquishment, parties were living together as members of a
      joint hindu family. [Para 10] [537~0]

 D        1.2 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 amendment would cause
   no prejudice t-0 the Plaintiff. 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
 E 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. The
 F supervisory    jurisdiction conferred on the High Court under
   Article 227 is confined only to sec 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
 G 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 Ruic 17 of
   the CPC. There was no reason for the High Court to interfere
   under Article 227. The amendment would cause no prejudice to
 H the  Plaintiff. [Para 11] [538-E-G; 539-A-BJ
   RAJ KUMAR BHATIA v. SUBHASH CHANDER B.HATIA                                533



      Scul/111a Lodh v. National Insurance Company (2003) 3                   A
      SCC 524 : [2003] 1 SCR 567 - relied on.
      Ccnnmissirmer of Wealt/1-tax, Kanpur I'. Chander Se11
      (1986) 3 SCC 567 : [1986] 3 SCR 254 : Yudhishter 11.
      As/wk Kumar (1987) 1 SCC 204: [1987) 1 SCR 516
      - referred to.                                                          B
                         Case Law Reference
      [1986] 3 SCR 254            referred to               Para7
      [1987] 1 SCR 516            referred to               Para 7
      [2003] 1 SCR 567            relied on                 Para 11           c

     Cl VIL APPELLATE JURISDICTION: Civil Appeal No. 19400
of2017.
      From the Judgment and Order dated 05.10.2016 by the High Court          D
of Delhi at New Delhi in C.M. (M) No. 643/2016.
     Ms. Geeta Luthrn, Sr. Adv, Anshul Duggal, Sanjay Rathi,
Ms. Chant! D., Parmanand Gaur, Advs for the Appellant.
      Gagan Gupta, Adv for the Respondent.·
                                                                              E
      The Judgment of the Court was delivered by
       Dr. D. Y. CHANDRACHUD, J. 1. The present appeal arises
from a j.udgment of the High Court of Delhi dated 5 October 2016 by
which an order of the Trial Court allowing an application filed by the
appellant for_ amendment of the written statement was set aside.              F
       2. On 11 October 2002, Sharda Rani Bhatia instituted a suit for
the recovery of possession, arrears of damages and mesne profits against
the appellant.The property in dispute is situated on the first floor at 1/6
Ramesh Nagar, New Delhi. The case of the original plaintiff is that
Desh Raj Bhatia acquired the leasehold rights on 13 February 1962. On         G
his death, his children are stated to have relinquished their rights and
interest in favour of their mother, Lajwanti Bhatia. She executed a will
bequeathing the property lo her son Ratan Lal Bhatia who is stated to
have become the exclusive owner of the property on her death. The
original plaintiff, Sharda Rani Bhatia is the widow ofRatanLal Bhatia.
                                                                              H
534             SUPREME COURT REPORTS                         [2017) 12 S.C.R.


A     The appellant is the son of Ratan Lal Bhatia. Ratan Lal Bhatia died
      intestate. On his death, a registered deed of relinquishment was executed
      in favour of Sharda Rani Bhatia by the appellant and the respondent, the
      sons ofRatan Lal Bhatia and by Shakti Bhatia in favour of their mother.
      The original plaintiff is stated to have permitted the appellant and the
      respondent to reside along with her in the property. The suit was filed by
B
      Sharda RaniBhatia for recovery of possession from the appellant and
      for consequential relief. The original plaintiff is stated to have executed
      a deed of gift in favour of the respondent in 2003 after which he was
      impleaded as co-plaintiff. The original plaintiff died in 2005 and the suit
      is being pursued by the respondent.
c             3. The appellant filed his written statement in the suit on
      22 February 2003. According to the appellant, the respondent had
      exercised undue influence in obtaining the deed of relinquishment.·
      According to him, parties had lived together jointly evenafte( the alleged .
      relinquishment.The appellant claims that an oral understanding was_
D     arrived at by which he was to occupy the first and second floorstogether
      with the terrace whereas the respondent was to occupy the ground floor
      exclusively and their mother was to live on the ground floor or, with any.
      of her sons, as she desired. Accordingly, it has been alleged that the
      family arrangement was acted upon and the appellant is in occupation of
      the first and second floors together with the terrace while the respondent .
 E    is in possession of the ground floor.
             4. Issues were framed on 14August 2003. The respondent moved
      an application under0rder6 Rule 17 of the Code of Civil Procedure for
      amendment of the plaint on 7 February 2013, which was allowed on 21
      September 2013. The appellant filed a written statement to the amended
 F    plaint. The appellant filed an application for amendment of the written
      statement in March 2016, which was opposed by the respondent. The
      Trial Court allowed the application by an order dated 11April2016.
           5. The respondent filed an application under Order 47 Rule 1 of
    CPC seeking review ofth.e orderdated 11April2016. On 3 June 2016,
G . the respondent filed.a writ petition under Article 227 of the Constitution.
    The petition was allowed b)! the' impugned order dated 5 October 2016.
            6; By the proposed amendment, the appellant inter alia sought to
      introduce the following averments in the written statement:

H
RAJ KUMAR BHATIA v. SUBHASH CHANDER BHATIA                               535
         [DR. D.Y. CHANDRACHUD, J.]

 "22. That as a matter of fact the property in question is the           A
 ancestral, joint Hindu Family Property as initially in view of the
 pleadings as well the same was purchased by Desh Raj Bhatia,
 grandfather of the plaintiff No. 2 and the defendant. After the
 death of Desh Raj Bhatia, who died intestate, the suit property
 was inherited by all the legal heirs namely Smt. Rajwanti Bhatia        B
 (widow), Sunita Rani Bhatia (Daughter), Walaityi Ram Bhatia
 (Son), Om Prakash Bhatia(Son), Tilak Raj Bhatia (Son), Ratan
 Lal Bhatia (son), Smt Sita Virmani (daughter), Smt Shakuntala
 Bhatia (daughter), Jagdish Lal Bhatia (son). All the said legal heirs
 have relinquished their rights in favour of their widow mother
 Smt. Lajwanti Bhatia. Thereafter, Smt Lajwati Bhatia before her         C
 expiry, have executed a Will in favour ofRatan Lal Bhatia, who is
 the father of the plaintiff No. 2 and the defendant and after death
 of Smt. Lajwanti Bhatia, the suit property was inherited by Ratan
 Lal Bhatia..
 24. That it is an admitted position that on the death of Ratan Lal D
 Bhatia, he was survived by his widow Shara Rani Bhatia, plaintiff
 No. 2, Subhash Chander Bhatia, defendant Raj Kumar Bhatia
 and one daughter namely Smt. Shakti Rani Bhatia and one daughter
 namely Smt Sakshi Rani Bhatia and the plaintiff No. 2, defendant
 and their sister was also having their two children. It is undisputed
 position that Ratan Lal Bhatia died intestate and the assets as E
 well as the properties left behind by him stands inherited equally
 in the name of his legal heir and thus the properties left behind by
 Ratan Lal Bhatia become the coparcenary property for the rights
 of the grand children ofRatan Lal Bhatia. It is submitted that the
 grand children ofRatan Lal Bhatia have derived their coparcenary F
 rights in the properties left behind by Ratan Lal Bhatia. Meaning
 thereby in case of plaintiff No. 2, although he derived 1/4'h share
 in the suit property but legally his own son and daughter being
 coparcener then his share shall be terms as 1/12theach and likewise
 the share of defendant which he derived as I/4th on the death of
 his father shall also be deemed as 1/12'h each with his two sons G
 and the share of Sharda Rani Bhatia which she derived as 1/41his
 also to be legally deemed as I/12th each alongwith her sons and
 daughter.                                             .

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536             SUPREME COURT REPORTS                       12017112 S.C.R.


A         7. The High Court has held that the amendment sought inthe
   written statement was not bona fideand was not necessary for
   determining the real question in controversy between the parties. The
   suit was instituted in 2001 and the written statement was filed in 2003.
   The High Court held that based on facts which were known to the appellant
  ·in 2003, a belated attempt was made thirteen years later in 2016 to
B
   amend the written statement to introduce an averment on the existence
   of coparcenary I hindu undivided property. On merits, the High Court
   held that it is a settled principle that after the enactment of the Hindu
   Succession Act 1956, property which devolves on an individual from a
   paternal ancestor does not become HUF property but the inheritance is
C in the nature of self-a<;quired property unless an HUF exists at the time
   of the devolution. This view was based on the judgments of this Court in
   Commissioner of Wealth-tax, Kanpur v Chander Sen 1 and
   Yudhishter v Ashok Kumar2 • In the view of the High Court, the
   averments sought to be introduced by the appellant do not lead to a
   conclusion of the exisJence·of copan;_enary property. While accepting
0 _that in the course of considfrin·gan application for amendment, its meri_ts ·
   or demerits should not be evaluated, the High Court nevertheless held
   that the amendment in the present case was untenable on merits.
            8. On behalf of the appellant, it has been urged that necessary
     averments about the ancestral nature of the property are contained in
 E the original written statement. Hence, it was urged th~1t the averments
     which were sought to be elaborated in the amended writlef! statement
     had their genesis in the original written statement: Based on this premise,
   · it was urged that the amendment was correctly allowed by the Trial
     Court. The High Court, it was urged, ought not to have interfered under
 F Article 227 of the Constitution with an order of the Trial Court allowing
     the amendment. Moreover, it was urged that at the stage of allowing an
     amendment, the court is not justified in considering the merits of the
     case which is sought to be pleaded. The High Court; it was submitted,
     had declined 'to allow the amendment after reviewing the merits of the
     defence raised, which was impermissible. The appellant also urged that
 G the respondent hiid already filed. an application for review of the order
     passed by the Trial Court on 11April2016, allowing the amendmentin
     spite of which, a petition was filed under Article 227.

      '(1986) 3 sec 567

 H
      '< t 987) 1 sec 204
                                                                               •



    RAJ KUMAR BHATIA v. SUBHASH CHANDER BHATIA                                 537
             [DR. D.Y. CHANDRACHUD, J.]

       9. On the other hand, it was urged on behalf of the respondent A
that the written statement as originally filed was based on a challenge to
the deed of relinquishment executed by the appellant in favour of his
mother Sharda Rani Bhatia. The appellant also sought to plead an oral
arrangement to the effect that his posl'ession of the suit property would
not be disturbed. This, it was urged, amounted to an admission that the
                                                                           B
property was the self-acquired property of Ratan Lal Bhatia and the
appellant cannot be permitted to withdraw the admission by amending
the written statement. Moreover, it was urged that issues were framed
on 14 August 2003. The respondent had filed its evidence on affidavit
and the trial had already commenced prior to the filing of the application
for amendment of the written statement.In the absence of due diligence·. C
on·the part of the appellant, the amendment could not have been allowed.
The amendment, ii was submitted, changes the fundamental nature of
the defence and is aimed at delaying the disposal of the suit.
        I 0. In the original written statement, the appellant had set up the
pica that the property in dispute was in the nature of joint family property   D
and that even after the alleged deed of relinquishment, parties were
living together <1s members of a joint hindu family. The written statement
inter alia contains the following averments:
       "10 ... The property is the joint family property. The sister of the
       respondent is married and well settled at her matrimoni;~I home...      E
      The defendant, plaintiff and the said S C Bhatia were jointly
      occupying the said property as being the undivided joint family
      property. That everi after execution of the alleged relinquishment
      dee the abovesaid parties we.re living as joint family and the suit
      property being the undivided joint family...                             F
      That all family members were using ground floor, first floor and
      second floor jointly as undivided joint family property."
       In paragraph 12 of the written statement, the appellant has set up
an oral family arrangement.thus:
                                                                               G
      "12 ... That acting upon the oral family arrangement, an amount of
      Rs. 6, 00, 000/- was taken out of the common fund of the Joint
      Hindu Undivided Family. The said amount has been handed over
      to Dr R C Bhatia and Shri Shakti ~hatia both residents of Modi
      Nagar, UP on interest. The said two persons are regularly paying
      interest to the plaintiff."                                        H
    538             SUPREME COURT REPORTS                          [2017] 12 S.C.R.


    A     In "the reply on merits'', the appellant has averred that :
                                     '
                "2 ... The defendant is in possession of the first floor, second floor
                and terrace of the said property as owner as per the oral family
                settlement of the undivided Joint Hindu Property ...
                That all other assets movable as well as immovable including the
    B           factory in the name and style of Rattan Industries situated at 18
                DLF Industrial Modi Nagar, are still in joint possession and
                ownership and no division on metes and bounds has taken place.
                Though the "said property" has been divided by mets and bound
                as per the oral family armament. The plaintiff has made the present
    c           averment at the behest of her younger son Shri S C Bhatia with
                an ill intention and motive to deprive the defendant of his lawful
                occupation. That as per the said oral family arrangements, an
                amount of Rs. 6 lacs from joint funds has been handed over on
                interest to Dr R C Bhatia and Smt Shakti Bhatia, son in law and
                daughter of the plaintiff. That RC Bhatia and Smt Shakti Bhatia
    D           have been regularly paying interest to the plaintiff on the said
                amount."
•                11. 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
     E    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
     p    transgressed the limitations on its jurisdiction under Article 227. In Sadhna
          Lodhv National Insurance Company 3, 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
     G    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

          '(2003) 3 sec s24
     H
    RAJ KUMAR BHATIA v. SUBHASH CHANDER BHATIA                               539
             [DR. D.Y. CHANDRACHUD, J.]

no reason for the High Court to interfere under Article 227. Allowing the    A
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
                                                                             B
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 the view which we have taken, it has not become necessary
to consider the alternative submission of the appellant namely, that
recourse taken to the jurisdiction under Article 227 by the respondent
                                                                             c
after filing an application for review before the Trial Court was
misconceived. Since the matter has been argued on merits, we have
dealt with the rival submissions ..
       13. Hence, on a conspectus of the facts and having due regard to
the nature of the jurisdiction under Article 227 which the High Court        D
purported to exercise, we have come to the conclusion that the impugned
judgment and order is unsustainable. We accordingly allow the appeal
and set aside the judgment of the High Court. The order passed by the
Trial Court allowing the amendment of the written statement is
accordingly affirmed.                                                        E
       14. There shall in the circumstances be no order as to costs.


Divya Pandey                                               Appeal allowed.