Delhi High Court
Bharat Singh & Ors vs Rama Nand Sharma & Ors on 29 November, 2010
Author: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 290/2009
Reserved on : 16.11.2010
Date of Decision : 29.11.2010
BHARAT SINGH & ORS . ..... Appellant
Through Mr. L.D.Adlakha,Ms Ripu Adlakha,
Advs.
versus
RAMA NAND SHARMA & ORS .... Respondent
Through Mr. B.S Maan, Mr Jai Prakash, Mr. H.Singh, Ms Smita Maan,Advs.
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
Whether the Reporters of local papers may be allowed
to see the judgment? No
To be referred to Reporter or not? No
3. Whether the judgment should be reported in the Digest? No
: MOOL CHAND GARG,J
1. The short point involved in this appeal arising out of the order of the Ld ADJ dated 15.12.2003 is that, the respondent by an application U/o 6 Rule 17 CPC wanted to make amendment in the plaint pertaining to the description of the disputed property. Earlier in the plaint respondent had described the plot of land, as a land measuring 400 sq yards comprising in Khasra No 73-74 situated in village Khichripur, Delhi-91 but now he wants to make additional pleadings by stating that the said property is also known by a number which is E-98 East Vinod Nagar, New Delhi-91 comprising khasra No 73-74, Village Khichripur. The Learned ADJ relying upon by the pre-amended Order 6 Rule 17 of CPC set aside the judgment/decree of the Trial court dated 15.01.2000 and allowed the amendment in the plaint under Order 6 Rule 17 & remanded back the suit to the Trial court with directions to proceed in the matter in accordance with law after giving an opportunity to the defendants to file the Written Statement to the amended plaint as per rules. This order of the Ld ADJ dated 15.12.2003 has now been impugned before us by the appellant.
2. The two objections raised by the appellant before the Ld. ADJ as well as before us is that as per recent amendments in the CPC, since the proposed amendment was already within the knowledge of the appellant, the application cannot be allowed in view of the proviso to Order 6 Rule 17 of CPC. Another objection taken by the appellant is that, at the stage of appeal appellant cannot be allowed to fill up the lacuna in its case by making amendment which may lead to denovo trial of the suit which would be detrimental to the interests of respondents. 3.
3. The Ld ADJ after hearing the parties had observed as under:-
"Fortunately, for the appellant the amendment in Rule 17 of Order 6 came into force on 1.07.02 i.e subsequent to filing of the present application by the appellant. So the proviso to Rule 17 of Order 6 CPC which has put impediment in the amendment of pleadings after bearing has started for the reasons indicated in the proviso does not hit the present application
The appellant wants to make necessary amendments in the plaint to give property no. and name of the locality in which it falls besides its Khasra no. already given in the plaint. The roposed amendment is also in consonance with the site plan ExPW1/4 filed by the appellant alongwith the plaint in which the suit property is shown as part of plot No E-98, East Vinod Nagar, Delhi-91.
Under the circumstances, I am of the considered view that the pre-amended rule 17 of Order 6 CPC would apply and a liberal approach is required to be taken in deciding the application U/o 6 Rule 17 CPC. The appellant wants to put on record the proper description of the suit property by amendment in the plaint, which in my view should be allowed. However, since the application is made at such a belated stage in the first appeal, the appellant should amply compensate the contesting respondents. The application is therefore allowed subject to payment of costs of Rs 6000/- to be equally shared by the contesting respondent No1 to 4. The amended plaint is already filed by the applicant which be transferred to the trial court record from the appeal filed.
As a result of amendment in the plaint, the impugned judgment/order of the trial court is set aside. The suit is remanded back to the trial court. Ld Trial Court shall give opportunity to the contesting respondents No 1 to 4 to file W.S to the amended plaint and shall also issue summons alongwith copy of the amended plaint to defendants No 5 to 7 as per rules and proceed in the matter in accordance with law."
4. The Ld ADJ had also taken a note of judgment of a Punjab & Haryana High Court relied upon by the respondent in the case of Surain Singh Vs Swami Dhian Santosh Anandpuri & another, AIR 1979 Punjab & Haryana 161, wherein It has been held that:-
"The amendment which goes to the root of the matter and which requires necessary adjudication for proper assessment of the matter may be allowed at any stage of the proceedings. The appeal being a continuation of the original proceedings can be allowed even during pendency"
5. In another judgment Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala, AIR 1964 SC 11, the Apex Court had held that:-
" ... It is, no doubt, true that, save in exceptional cases, leave to amend under Order 6 Rule 17 of the Code will ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by lapse of time. But this rule can apply only when either fresh allegations are added or fresh reliefs are sought by way of amendment. Where for instance, an amendment is sought which merely clarifies an existing pleading and does not in substance add to or alter it, it has never been held that the question of a bar of limitation is one of the questions to be considered in allowing such clarification of a matter already contained in the original pleading."
6. We may also like to observe that a judgment in the case of Revajeetu Builders & Developers v. Narayanaswamy & Sons, (2009) 10 SCC 84, wherein the Apex Court had traced the legislative history, objects and reasons for incorporating Order 6 Rule 17 and held that:-
"The general principle is that courts at any stage of the proceedings may allow either party to alter or amend the pleadings in such manner and on such terms as may be just and all those amendments must be allowed which are imperative for determining the real question in controversy between the parties. The basic principles of grant or refusal of amendment articulated almost 125 years ago are still considered to be correct statement of law and our courts have been following the basic principles laid down in those cases."
7. In regards to the proviso to the Order 6 rule 17 of CPC, it may be observed that the proviso which has put an impediment in the amendment of pleadings, does not in any manner hit the application of the respondent, as the amendment in the above quoted Order 6 rule 17 of CPC came into force on 1.07.2002. which was subsequent to the application filed by the respondent i,e. on 08.02.2000.
8 Thus in the light of the above discussion, I do not find any illegality in the order of the Ld. ADJ in as much as the respondent through the amendment U/o 6 Rule 17 has only sought a clarification of the disputed property in the plaint which does not in any manner mean that fresh allegations are added or fresh reliefs are sought. Hence, the appeal is dismissed with no orders as to costs. Parties to appear before the trial court on the date already fixed. TCR, if any, be sent back forthwith along with a copy of this judgment.
CM No.5009/2004
Interim order, if any, stands vacated.
Application stands disposed of.
MOOL CHAND GARG, J
NOVEMBER 29, 2010
sg
