Union Of India & Anr. vs Shri D.L.Khillon
2011 Latest Caselaw 3852 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P(C) No.4073/2007

Union of India & Anr.                                      ...... Petitioners

                      Through Mr.A.S.Chandihoke,      ASG   with
                              Ms.Anjana Gosain, Mr.Ritesh Kumar,
                              Mr.Piyush, Mr.Simranjeet Singh &
                              Mr.Nipun Bahri, Advocates.

                                  Versus

Shri D.L.Khillon                                   ...... Respondent
                      Through Mr.M.K.Bhardwaj, Advocate.

                                 ORDER

09.08.2011

ANIL KUMAR, J.

* CM No.1871/2011 in WP(C) No.4073/2007 * This is an application by the petitioner/applicant under Order

6 Rule 17 read with Section 151 of the Code of Civil Procedure to

amend the present writ petition.

The applicant has contended that the Tribunal has committed

an error in interpreting the Government's Office Memorandum dated

19th September, 2003 in its order dated 10th November, 2006. The

petitioner/applicant wants to add paragraphs (I) and (J)

incorporating their grounds to challenge the order dated 10th

November, 2006 and wants to amend paragraph (H) also

incorporating the ground to challenge the said order, which was

omitted inadvertently by the applicant.

The applicant has contended that the order dated 10th

November, 2006 is impugned by the applicant, however, by

inadvertence, in the prayer clause, quashing of order dated 10th

November, 2006 passed in OA No.577/2005 has not been sought

specifically and what has been sought is to set aside the order

passed by the Tribunal in the review application for review of the

order dated 10th November, 2006. The applicant has contended that

the amendment sought is technical in nature and does not

tantamount to withdrawal of any admission made by the petitioner

in any manner nor changes the pleas and contentions raised on

behalf of the petitioner.

The application is contested by the respondent contending,

inter alia, that the order dated 10th November, 2006 has not been

challenged by the petitioner in the writ petition. It is denied by the

respondent that the Tribunal has fallen in error in interpreting the

Office Memorandum dated 19th September, 2003 in its order dated

10th November, 2006. The non-applicant has further contended that

the amendment cannot be allowed as the only remedy available with

the petitioner is to withdraw the writ petition and to file a fresh

petition.

It cannot be disputed that the power to allow the amendment

is wide and can be exercised at any stage of the proceedings in the

interest of justice on the basis of the guidelines laid down in various

precedents. The purpose and object of Order 6 Rule 17 of the Code of

Civil Procedure is to allow either party to alter or amend his pleading

in such a manner and on such terms as may be just and

appropriate. The general rule, no doubt, is that a party is not allowed

by amendment to set up a new case or a new cause of action,

particularly when the legal proceeding in the new case or cause of

action is barred. But it is also well recognized that where the

amendment does not constitute the addition of a new cause of action

or raise a different case, but amounts to no more than a different or

additional approach to the same facts, the amendment will be

allowed. The Supreme Court has held in numerous cases that the

dominant purpose of allowing the amendment is to minimize

litigation. Therefore, if the facts of the case so permit, it is always

open to the Court to allow applications in spite of delay and latches

in moving such application for amendment. Even in cases where the

delay has apparently extinguished the right of the party, there is no

absolute rule that the amendment should not be allowed. Discretion

in such cases depends on the facts and circumstances of the case.

After hearing the learned counsel for the parties, this cannot

be disputed that the order passed in the review application

challenging the order dated 10th November, 2006 has been

challenged in the writ petition. From the tenor of the writ petition, it

is also apparent that the petitioner has challenged the order dated

10th November 2006 and non-inclusion of order dated 10th

November, 2006 in the prayer clause is by inadvertence. In any, case

by including the challenge to order dated 10th November, 2006, the

petitioner does not withdraw any admission made in the writ petition

or change the basic nature of the writ petition. The amendment

sought by the petitioner is necessary for determining the controversy

between the parties. There does not seem to be any other

impediment in allowing the application for amendment of the writ

petition.

For the foregoing reasons, the application is allowed and the

petitioner/applicant is permitted to carry out amendment as detailed

in the application. Amended writ petition be filed.

WP(C) No.4073/2007

The amended writ petition already filed along with the

application for amendment is taken on record.

Counter affidavit to the amended writ petition be filed within

four weeks. Rejoinder, if any, be filed by three days before the next

date of hearing.

List on 17th October, 2011.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

AUGUST 09, 2011 dr