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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 1st February, 2013
+ CM(M) 134/2013
SHEHNAZ BEGUM
..... Petitioner
Through: Mr.Himal Akhtar, Advocate.
versus
ABDUL KHALIQ
..... Respondent
Through :
CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI
%
PRATIBHA RANI, J. (ORAL)
CM.No.1865/2013 (Exemption) Allowed, subject to all just exceptions.
Application stands disposed of.
CM (M).No.134/2013 & CM.1864/2013
1. This petition under Article 227 of the Constitution of India has been directed against the order dated 13th December, 2012, whereby the learned Civil Judge allowed the application under Order VI Rule 17 CPC filed by the respondent (plaintiff in Suit No.885/2011) to amend the plaint.
2. In brief, the facts of the case, as incorporated in para 2 of the impugned order reveal that a suit for declaration and cancellation of eviction orders dated 13th February, 2009, 10th July, 2009 and the order dated 7th May, 2008, passed by the Competent Authority (Slum), Delhi was filed, inter alia, praying for relief of permanent injunction, restraining the defendant from taking possession of the suit property. However, the relief of injunction became infructuous as in the execution proceedings the possession had already been taken by the defendant.
3. Thereafter, the plaintiff sought amendment, praying for the recovery of possession and also restraining the defendant from creating third party interest in the suit property. Apart from that, amendment was also sought for claiming additional relief of declaration, seeking cancellation of Sale Deed dated 17th April, 1986. In the amendment application, it was averred that while challenging the eviction order on various grounds, the ground on which the Sale Deed was claimed to be illegal and void, have already been mentioned in the plaint. It was also averred that the amendment has been necessitated to avoid multiplicity of the proceedings for proper adjudication of the case and that the proposed amendment does not change the nature of the suit.
4. The prayer for amendment of plaint was opposed by the defendant, specifically pointing out that the relief, seeking declaration in respect of the Sale Deed, executed in the year 1986, as null and void and barred by limitation, the plaintiff was not diligent enough to claim this relief at the time of filing the suit.
5. After considering the rival contentions, learned Civil Judge exercised the discretionary power in favour of the plaintiff, thereby allowing the amendment sought by the plaintiff for the reasons incorporated in para 5 of the impugned order, which is extracted as under:-
"5. Arguments heard and on perusal of the records of the case in the light of rival submissions of both the parties and relevant law, this court is of considered opinion that the present suit is still in its initial stage, as issues have not been framed till date and since the ground on which the sale deed is challenged by the plaintiff is within the knowledge of the defendant at the time when the present suit is filed, therefore, even if the amendment is allowed no prejudice will be caused to the defendant which will not be compensated in terms of cost and since proposed amendment does not change the nature of the suit, as the plaintiff is seeking setting aside of eviction orders on the ground that the defendant had no right, title or interest in suit property as the sale deed is null and void, therefore the proposed amendment is necessary in order to prevent multiplicity of litigations between the parties and for proper adjudication of case and the fact whether the relief as sought is time barred or not, is not a ground for disallowing proposed amendment as a time barred claim can be incorporated by way of amendment, if the same is necessary to prevent multiplicity of litigation between the parties and in order to adjudicate real controversy between the parties, therefore the proposed relief of declaration and cancellation of sale deed is allowed and as to other reliefs of permanent injunction and recovery of possession, the same is necessary in order to prevent multiplicity of litigation between the parties and at the stage of adjudication of application under order 6 Rule 17, the court is not required to go into the question of truth or falsity of proposed amendment".
6. The main grievance of the learned counsel for the petitioner before this Court is that the learned Trial Court has committed grave illegality in allowing amendment in respect of the prayer in respect of Sale Deed dated 17th April, 1986, which is barred by time. It has been submitted that since a valuable right had accrued to the petitioner, such type of amendment could not have been allowed by the Court, hence the impugned order may be set aside.
7. The Apex Court in Pankaja and Anr. Vs. Yellappa (D) by Lrs. and Ors.- AIR 2004 Supreme Court 4102 , while dealing with the issue as to whether amendment should be allowed where a relief is barred by limitation, observed : -
"14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a - judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case."
8. The purport of Order VI Rule 17 CPC is that it has been moved bona fide, the trial is at the initial stage, the controversy in dispute will be enlightened by the proposed amendment without causing serious prejudice to the non-applicant, the same is also necessary to avoid multiplicity of legal proceedings. In such circumstances, the Court may exercise its discretion by allowing such amendment. In the instant case, the learned trial court has taken note of the fact that the proposed amendment is necessary to prevent multiplicity of the litigation between the parties and also to adjudicate the real controversy between the parties.
9. Proceeding under Article 227 of The Constitution of India is an extraordinary discretionary constitutional remedy to advance justice and not to thwart it. In exercise of power under Article 227 of The Constitution of India, this Court will interfere only when error of law is apparent on the face of record which has resulted in gross injustice.
10. I find no illegality or perversity in the impugned order, calling any interference by this Court.
11. The petition has no merit and is dismissed.
PRATIBHA RANI, J FEBRUARY 01, 2013 'aka'