Vidushi Duggal And Ors. vs Darupadi Devi And Anr.
1990 Latest Caselaw 476 Del

JUDGMENT

P.N. Nag, J.

(1) In this application, under Order Vi Rule 17 of the Code of Civil Procedure iei by the plaintiff, the plaintiff [petitioner seeks to amend the plaint by incorporating certain amendments in the plaint mentioned by him in the application. These amendments have been necessitated by passing an Act by Parliament known as Benami Transaction (Prohibition) Act, 1988 (hereinafter referred to as the Act). In substance the plaintiff wants to raise an additional ground in the plaint that defendant No. I was holding the immoveable property in question as a Trustee for the plaintiff No. 1 in a fiduciary capacity and for the benefit of plaintiff No. 1 or the plaintiffs. All the amendments sought for are in consequence of such ground.

(2) The defendants have opposed the amendment, in fact Mr. Daljit Singh, counsel appearing for the defendants, has vehemently contended that this application of the plaintiff should not be allowed as such as the amendment introduces a new cause of action and sets up a new case altogether. Further, such an amendment is not necessary for the purpose of determining the real questions in. controversy between the parties.

(3) I have given careful consideration to the submission of the learned counsel for the defendants but I regret, I am unable to accept his contentions. Since at the time of filing of the suit, the Act was not enacted by the Parliament and in fact never existed, therefore, such an amendment in the plaint could not be visualised by the plaintiffs at that stage while drafting the plaint. The amendment sought for by the plaintiffs in the application only incorporates an additional ground in a Suit and does not introduce new cause of action in any way or sets up a new case.

(4) Further, I am of the opinion that the amendment sought for is in fact necessary for the purpose of determining the real question in controversy between the parties. It is well settled principle of law that the amendment sought for should always be allowed if it is necessary for determining the real question in controversy and other party could be compensated with costs. Since as I find the amendment sought for is necessary for determining the real point in controversy between the parties, and the defendants can be compensated with costs. there cannot be any objection to the allowing of the amendment. Therefore, the contention of the learned counsel for the defendants fails.

(5) In the light of the above discussions, I allow the amendment subject to payment of Rs. 2,000 as costs to be paid by the plaintiffs to the defendants within two weeks. The payment of costs shall be a condition precedent for allowing the amendment.

(6) The amended plaint which has already been filed by the plaintiffs be taken on record after the costs are paid as directed.

(7) The defendants shall file written statement to the amended plaint within four weeks from today. Replication, if any, be filed within three weeks thereafter.

(8) I.A.6517190 stands disposed of. S.1120/88

(9) LIST the matter before the joint Registrar on 13th December, 1990. All other pending applications be listed before court for arguments on 11th January, 1991.