Narinder Kumar Kundra And Anr. vs Anil Nijhawan And Anr.
2004 Latest Caselaw 156 Del

JUDGMENT

Vikramajit Sen, J.

1. By way of this Revision the Order dated 27.2.2003 is assailed. The Defendant had filed an application under Order VI Rule 17 essentially to bring in a Counter Claim. At this stage the case was fixed for Final Arguments. In the Order the application has been rejected because the Court felt it had not been satisfied on the question of why the Counter Claim had not been filed along with the Written Statement. The learned Trial Court had concluded that the application was highly belated and was of a "delaying nature".

2. It is trite to state that while allowing the amendments to pleadings a liberal approach should be adopted by the Courts. It cannot also be gainsaid that while considering an amendment the question of whether it is likely to succeed at the conclusion of the Trial, would also not be sufficient reason for rejecting it. This has been so stated in A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation, where the Hon'ble Supreme Court had clarified that the general rule is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new cause of action is barred. Where, however, the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts the amendment is to be allowed even after expiry of the statutory period of limitation.

3. While it is certainly arguable in this case that a new cause of action is sought to be introduced and brought in, but that is not the reason why the learned Trial Court has rejected the Defendant's application for amendment of the Written Statement. In Sampath Kumar v. Ayyakannu and another, the Apex Court held that mere delay in making an application cannot be ground for refusing the prayer for amendment. Learned counsel for the Defendant has relied on a decision of the Hon'ble in M/s. Oriental Ceramic Products Pvt. Ltd. v. Calcutta Municipal Corporation, AIR 2000 Calcutta 17. Here again the factum of the non-filing of the Counter Claim at the time of the Written Statement was the pivotal point and the application was not rejected merely on the grounds of delay.

4. On a perusal of the Order dated 27.2.2003 it is evident that the learned Trial Court rejected the Defendant's application for amendment of the Written Statement for the purpose of introducing a Counter Claim neither because of the embargo contained in Order VIII Rule 6A nor for the reason that the Counter Claim was time barred. It would not be appropriate for this Court, acting on its revisory powers, to decide on considerations which were never ventilated before the learned Trial Court.

5. It appears that the application was filed on 18.2.2003 and was dismissed without notice to the Defendant, palpably in great haste. Therefore, all attendant and relevant arguments were not taken into consideration. For this reason the impugned Order dated 27.2.2003 is set aside and the case is remanded back to the learned Trial Court for a fresh determination on the application for amendment.

6. The Revision Petition is disposed of in these terms.