At, High Court of Delhi
By, THE HONOURABLE MR. JUSTICE S.N. SAPRA
For the Appearing Parties : Shashi Saxena, V.K. Shingari, Advocates.
S.N. SAPRA, J.
Admitted. With the consent of the parties, I proceed to dispose of the revision petition.
2. By the impugned order, the learned Sub-Judge has dismissed the application of the petitioner under Order 6, Rule 17 C.P.C. for amendment of the written statement. The peti
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tioner wanted to amend the written statement by adding the following plea:
"That the suit of the Plaintiff as framed is not maintainable and is barred by the provision of Section 281-A of the Income-tax Act as is stood at the time of filing of the suit by the plaintiff. Under the provision of Section 281-A of the Income-tax Act no suit to enforce any right in respect of any property held benami, whether against the person, in whose name the property is held or against any other person shall be instituted in any court by or on behalf of a person (hereinafter in this section referred to as the claimant) claiming to be the real owner of such property unless-
(a) the income, if any, from such property has been disclosed in any return of income furnished by the claimant under this Act; or
(b) such property has been disclosed in any of return of net wealth furnished by the claimant under the Wealth-tax Act, 1957 (27 of 1957); or
(c) notice in the prescribed form and containing the prescribed particulars in respect of the property has been given by claimant to the Income-tax Officer. In the circumstances the suit is liable to be dismissed with cost on this ground alone and the present objection may be decided by this Hon'ble Court.
3. It is thus clear that the plea which is sought to be added by way of amendment is with regard to the bar of the suit under the provisions of Section 281-A, of the Income Tax Act. The learned trial court has dismissed the application of the petitioner on the ground that the plaintiff, the respondent herein, was not getting any income on account of the property in suit, so the provisions of Section 281-A were not applicable. The other ground, taken into consideration by the learned trial court is that Section 281-A came into force w.e.f. 15th November, 1972, while the plaintiff was claiming the right since 1954, when the compensation had been given to her mother. In my view, all these are questions of fact, which can be determined only after trial.
4. The only question, which is to be considered at the time of deciding the application for amendment of the pleadings, is whether the proposed amendment is necessary to decide the real controversy between the parties. Moreover, the amendment is to be allowed liberally. Learned Counsel for respondent has fairly conceded that the proposed amendment may be allowed. Under these circumstances, I set aside the impugned order and allow the application of the petitioner filed under Order 6, Rule 17 C.P.C. for amendment of the written statement.
5. No order as to cost. The records of the trial Court be sent back immediately. Both the parties are directed to appear before the Trial Court on 17.1.1991