IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6040-6041  OF 2008 (Arising out of S.L.P.(C) Nos.22728-22729/2007)

Haldiram Bhujiawala & Anr. ...Appellant(s)

Versus

M/s. Haldiram (India) Pvt. Ltd. ...Respondent(s)

WITH S.L.P.(C) NOS.23268-23269 OF 2007

O R D E R

In S.L.P.(C) Nos.22728-22729/2007:

Leave granted.

In a pending Suit No.188/2003 in the Court of Additional District Judge,

Delhi,  filed  by  Anand  Kumar  Deepak  Kumar  and  others  against  Haldiram

Bhujiawala,  an  application  was  made  by  the  defendant  to  amend  the  written

statement.  It may be mentioned that in the original written statement, it was stated

that the deed of assignment was signed by Kamala Devi out of respect.  Later on, by

way  of  amendment,  it  was  stated  that  the  deed  of  dissolution  was  signed  out  of

coercion.  We are not concerned with the first amendment which was allowed to the

written statement.  However, on 5th October, 1999, an application for amendment was

preferred by  the  appellants  herein  under  Order  6,  Rule  17  of  C.P.C.,  inter  alia,

seeking  permission  to  amend  the  written  statement  in  view  of  subsequent

developments set out in the said application.   

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It  is  this  application  dated  5th October,  1999  which  is  the  germ of  the

present  dispute.   By  this  application,  the  earlier  statement  made  in  the  written

statement that the deed was executed under coercion was sought to be substituted by

the statement and plea that “the deed was forged”.

The narrow question that arises for determination is whether the trial court

was right in allowing the application for amendment dated 5th October, 1999?  It may

be stated that by the impugned judgment, the High Court has reversed the judgment

of the trial court granting the said amendment.

We have gone through the impugned judgments, both of High Court as well

as of the trial court, on this point.  On going through the judgment of the trial court,

we find that while  allowing the amendment application,  the trial  court  has  relied

upon number of documents and has in effect given a finding almost touching upon

the merits of the case.  Further, we find that in para 49, the trial court has stated that

circumstances exist in this case which should allow admission of certain facts to be

corrected.   In  our  view,  the  trial  court  had  erred  in  allowing  the  amendment

application for the reasons it has given, namely, it has gone into virtually the merits

of the case and sought to correct the existing admission vide the impugned order.   

In our view, however, we can proceed in this case on the footing that on the

relevant date there was a statement in the written statement to the effect that “the

deed of dissolution is executed under coercion”.  If the trial court  proceeds on the

issue arising from that statement, at the stage of trial, the burden would be on the

respondent herein to prove the execution and the contents of the document, namely,

deed of dissolution, dated 16th November, 1974.  Proving of the document involves

proving of execution of the document as well as proving of its contents (see AIR 1983

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Bombay 1).  At the stage of proving the execution of the document, it would be open

to the appellants herein to cross-examine the witness on the question of execution as

well as its content.  In that regard, they can rely upon material in their possession and

if the trial court finds that there is prima facie case of forgery, it can certainly give an

opportunity to the defendant-appellants herein to file an additional written statement

and it would be open to the trial court also to frame an additional issue at that stage.

We are informed that the trial has not yet commenced.

In the light of what is stated above, we are of the view, therefore, that ends

of justice would be subserved if, at the stage of proving of the document in question,

the trial court finds that there is a prima facie case of forgery then it may allow the

appellants herein to file additional written statement and the court may then frame

such additional issue.

Before concluding, we may state that on 29th January, 2005, the appellants

herein have filed amended written statement in pursuance of the order of the trial

court.  The said written statement will  be kept on record in a separate file.  That

written statement will be taken into account only as and when the trial begins and

only after the stage of proving the deed of dissolution is reached and as and when the

prima facie case of forgery is made out during the trial.   

We have been informed that issues have been framed on the basis of the

amendment to the written statement which has been allowed by the trial court.  It is,

therefore, made clear that issues will have to be recast in the light of this order.

Subject to above, Civil Appeals stand disposed of, with no order as to costs.

In S.L.P.(C) Nos.23268-23269/2007:

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In this case, we find that members of a family are fighting with each other

from 1991.  Interim applications are increasing by the day.  To put an end to all this

controversy, we direct the trial court to hear and dispose of Suit No.188/2003 as early

as possible and preferably within six months from today.   

We are informed that issues have been settled.  We are also informed that

dates have been given for day-to-day trial.  We request the trial court not to show any

leniency in the matter of adjournment and the trial shall proceed on day-to-day basis.

In view of our above directions, Shri F.S. Nariman, learned senior counsel

appearing on behalf of the petitioners, seeks permission to withdraw these Special

Leave  Petitions.   Accordingly,  the  Special  Leave  Petitions  stand  dismissed  as

withdrawn.

                         ...................J.               (S.H. KAPADIA)

                        ...................J.

                                       (B. SUDERSHAN REDDY) New Delhi, October 01, 2008.

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