Sh. Harvinder Pal Singh Dua & Anr. vs Sh. S.K. Mukherjee & Anr.
2009 Latest Caselaw 988 Del

*             HIGH COURT OF DELHI : NEW DELHI

+                IA No.11397/2007 in CS (OS) No.572/2006

%                     Judgment reserved on :       19th March, 2009

                      Judgment pronounced on : 25th March, 2009

Sh. Harvinder Pal Singh Dua & Anr.                ...Plaintiffs
                     Through : Mr. M.K. Arora, Adv.

                      Versus

Sh. S.K. Mukherjee & Anr.                                 ....Defendants
                    Through : Mr. M. Dutta, Adv.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                   Yes

2. To be referred to Reporter or not?                                Yes

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

MANMOHAN SINGH, J.

1. By this order, I shall dispose of the application being IA

No.11397/2007 filed by the plaintiff under Order VI Rule 17 CPC

seeking amendment of the plaint by including the prayer for specific

performance of agreement to sell dated 21st October, 2004.

2. The plaintiffs are the residents on the ground floor and first

floor of 8/70, West Punjabi Bagh, New Delhi-110026. The defendants

are also the residents of the same property in the basement and second

Floor. The plaintiffs entered into a sale agreement with the defendants

for the portion of the property in their possession on 21st October, 2004

for a total sale consideration of Rs.91,51,000/-. The defendants

received the payment of Rs.65,51,000/- by 11th March, 2005 and cash

receipts were issued to the plaintiffs by the defendants for the above said

amount.

3. It is alleged by the plaintiff that the defendants on one pretext

or the other avoided to execute the said agreement to sell and started

doing illegal construction on the portion in possession of the plaintiffs

thereby depriving the plaintiffs of the peaceful enjoyment of their house.

It is also alleged that the defendants are constructing on the second

floor of the suit property without the proper sanctioned plan, by putting

unnecessary extra burden on the building which is, therefore, under the

constant threat of being collapsed.

4. The plaintiff further alleged that on 23 rd March, 2006 they

appeared before the concerned Sub-Registrar office for execution of the

agreement to sell but defendant failed to respond. The plaintiff has

pleaded that they have always been ready and willing to perform their

part of the contract/agreement and there has been negligence/refusal on

the part of the defendants to fulfil their obligations under the agreement.

5. Thus, the plaintiffs filed the present suit for permanent and

mandatory injunction against the defendants for restraining them to

sell/dispose of the portion of the property in possession of the plaintiffs

and also to restrain the defendants from dispossessing the plaintiffs.

During the course of proceedings, the plaintiffs filed the present

application being I.A. No. 11397/2007 under Or.6 R.17 CPC seeking

amendment in the title of the suit to be substituted as under:-

"Suit for Specific performance, permanent injunction and

mandatory injunction"

6. The plaintiff also sought amendment in para no. 21 of the

suit and affixed the ad valorem court fee of Rs. 90,000/- on the plaint.

In the prayer clause, following prayer sought to be added :-

"(a) Pass a decree for specific performance in favour of the plaintiffs and against the defendants, thereby directing the defendants to execute the sale deed of entire ground floor and first floor, in the suit property vide bearing 8/70, Punjabi Bagh (West), Delhi-26 as per the agreement between the parties;

7. It is a settled law that at the initial stage of the suit, where the

pleadings are not complete, the court will not go into the merits of the

controversy while adjudicating upon the amendment of the pleadings. If

the plaintiff is seeking the amendment of the plaint, he ought to be

given an opportunity to establish his case.

8. Ordinarily under order VI Rule 17, all amendments ought to

be allowed which satisfy the two conditions (a) of not working

injustice to the other side and (b) of being necessary for the purpose of

determining the real question in controversy between the parties.

9. In the case of Savitri Minda vs. Minda Industries, 1997

PTC 257, this Court allowed the amendment of the plaint under Order

VI Rule 17 observing that the courts should be liberal in the matter of

allowing amendment unless serious injustice or irreparable loss is

caused to the other side. The Courts exist to decide the rights of the

parties and not to punish them for the mistake they make in the conduct

of their cases.

10. It is also settled law that where 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. Where the amendment asked for

is one that should be granted, the mere fact that it is made under a wrong

section or provision of law does not affect the right of amendment.

(AIR 1964 And. Para 104). Where the proposed amendment is merely

to amend prayer clause based on averments made in the plaint and no

new ideas are introduced, the amendment could be allowed even at the

appellate stage.

11. In the case of Shri Saif-ul-Islam Co. L.P. v. Roshan Lal

Arora, 2003 AIHC 2966 (2968) (Del), it was held that where pleadings

are defective, amendment would be allowed. It is also settled law that

amendments to plead material facts left by oversight and which does

not cause prejudice to other side would be allowed. Even if a party or

its counsel is inefficient in setting out its case initially the shortcoming

can certainly be removed but however, the party who is put to

inconvenience should be suitably paid. The court has to only see that

the error is not incapable of being rectified so long as remedial steps do

not unjustifiably injure rights accrued.

12. The defendants has not denied the alleged agreement to sell

dated 21st October, 2004. Therefore, the introduction of relief about

specific performance of contract would not change the nature of the suit

and amendment can be allowed.

13. In my view, no new facts are introduced by the plaintiffs nor

there is any change in the cause of action by the proposed amendment.

The proposed amendment will not prejudice the defendants. Since the

suit is at the initial stage, for the purposes of determining the real

controversies between the parties and to meet the ends of justice, I am

of the opinion that the amendment can be allowed.

14. The application IA No.11397/2007 under Order VI Rule 17

CPC is disposed of in the above directions.

CS (OS) No.572/2006

List the matter on 18th May, 2009 before the Court.

MANMOHAN SINGH, J MARCH 25, 2009 SD