M/S Parsvnath Developers Ltd vs Mr. Ghanshyam Das Agrawal & Anr
2008 Latest Caselaw 2009 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI






+  I.A.No.6028/2008  (by the defendants u/O 6 R-17 of CPC for amendment of the written statement) in CS(OS) 633/2007                                Date of decision  :  14.11.2008


IN THE MATTER OF :

# M/S PARSVNATH DEVELOPERS LTD            ..... Plaintiff

				Through : Mr. H.C. Sukhija, Adv. 




			Versus

$ MR. GHANSHYAM DAS AGRAWAL & ANR.

   ..... Defendants

				Through : Mr. Pramod Kr. Dubey with 

                 Mr. Kunal Sharma, Advs. 


CORAM 


* HON'BLE MS.JUSTICE HIMA KOHLI


1.

Whether Reporters of Local papers may be allowed to see the Judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

HIMA KOHLI, J. (O R A L )

The present application is filed on behalf of the defendants praying inter alia for amendment of the written statement by incorporating the paras as indicated in paras 7 and 8 of the application.

2. Counsel for the defendants submits that the present suit instituted by the plaintiff for specific performance of an agreement of lease and for declaration, pertains to flat bearing Flat No.614, 6th Floor, Arunachal Building, 19, Barakhamba Road, New Delhi, of which the defendants are the landlords. He submits that the suit is based on an unregistered lease deed dated 24.4.2003 and the plaintiff was a tenant on a month to month basis in the suit property. The defendants, vide legal notice dated 10.1.2008 terminated the tenancy of the plaintiff in respect of the suit property and instituted a suit in the District Court for possession, mesne profit, damages, etc., i.e., Civil Suit No.54/2008 entitled Mr. Ghanshyam Das Agarwal & Anr. vs. M/s Parsvnath Developers Ltd., which is pending disposal. He further submits that the aforesaid events are subsequent to the filing of the written statement in the present proceeding and are sought to be brought on the record by way of the proposed amendments.

3. It is pertinent to note that the present suit was instituted by the plaintiff in March, 2007 and the same was registered on 4.4.2007, when summons were issued to the defendants. The defendants entered appearance on 16.11.2007 and sought time to file the written statement. The written statement came to be filed on 01.01.2008. The plaintiff was required to file a replication to the written statement within four weeks from the date of filing of the written statement, which was not done till May, 2008. In the meantime, the defendants filed the present application on 12.5.2008, praying inter alia for amendment to the written statement. In other words, the suit is at the initial stage, as the pleadings have yet to be completed. Counsel for the defendants states that by way of the proposed amendment, he only seeks to bring on record the subsequent events that have occurred after filing of the written statement and the same shall not cause any prejudice to the plaintiff as even pleadings are not complete in the suit.

4. The present application is opposed by the counsel for the plaintiff. He states that the facts which the defendants propose to incorporate by way of amendment, were partly available to them at the time of filing the original written statement as the defendants had instituted a suit earlier to the one instituted now and pending in the trial court for the same relief, which was withdrawn by them and which fact was not mentioned by the defendants in their original written statement. He further states that the proposed amendments are not relevant for deciding the real controversy between the parties, and therefore, are not liable to be permitted.

5. A perusal of the provision of Order VI Rule 17 CPC make it manifest that the Court is conferred with the power to allow alterations and amendments of the pleadings if the Court is of the view that such amendments may be necessary for determining the real question in controversy between the parties at any stage of the proceedings. Proviso to Order VI Rule 17 CPC stipulates that no application for amendment shall be allowed after trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, party could not have raised the matter before the commencement of trial. In the present case, proviso to Rule 17 CPC has no application as trial of the suit has not yet commenced. Rather, pleadings have not been completed.

6. It is trite that the Court should be liberal in granting prayer for amendment of the pleadings, unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer made in the amendment application is malafide. One of the basis for rejecting an amendment of the pleadings is that the amendment shall result in changing the subject matter of the suit by substituting one cause of action for another and the other is that the relief sought by way of amendment is time barred.

7. The object of the aforesaid provision is that the Courts should try the merits of the case that come before them and should allow all amendments that may be necessary for determining the controversy between the parties provided, it does not cause any injustice or prejudice to the other side. It is also settled law that while considering whether an application for amendment should be allowed or disallowed, the Court should not go into the correctness or the falsity of the case in the amendment, nor should it record a finding on the merits of the amendment sought to be incorporated by way of amendment. [Refer: Rajesh Kumar Aggarwal & Ors. Vs. K.K.Modi & Ors., AIR 2006 SC 1647].

8. It is equally well settled principle that the prayer for amendment of the plaint and prayer for amendment of the written statement stand on different footing and different yardsticks are applicable. As against the general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim, in the case of written statement the said principle is not applicable and addition of new grounds of defence or substituting or altering a defence by taking inconsistence pleas in the written statement is permissible. As held by the Supreme Court in the case of B.K.Narayana Pillai Vs. Parameswaran Pillai reported as (2000) 1 SCC 712, the Courts while deciding prayers for amendment should not adopt a hypertechnical approach and amendments should be allowed in the pleadings to avoid uncalled for multiplicity of litigation.

9. Now keeping in mind the aforesaid principles, the plea of the counsel for the plaintiff that the stand of the defendants to the effect that the tenancy of the plaintiff is on a month to month basis, is hit by the provisions of Section 53A of the Transfer of Property Act, 1882 read with Section 49 of the Registration Act, 1908 is one on merits and shall be available to the plaintiff at the time of trial. It is not for the courts to examine the defence of the defendants or the stand of either of the parties on merits at the stage of dealing with an application for permission to amend the written statement. The plea taken by the plaintiff shall be considered at the time of examining the pleadings on merits and while framing of issues.

10. Suffice it is to state that the suit is still at the nascent stage. The pleadings have not yet been completed in the matter and the defendants have filed the present application within a few months of filing their written statement. All that the defendants seek to place on record are subsequent events that have occurred after filing the written statement, which will not prejudice the plaintiff in any manner. The amendments are in the nature of an update of the pending litigations between the parties and no more. There appears no legal impediment in allowing the present application filed by the defendants. Accordingly, the application is allowed. The proposed written statement is taken on the record.

11. The application is disposed of.

HIMA KOHLI,J

NOVEMBER 14, 2008

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