Tara V Ganju & Anr vs Basant & Co & Ors
2012 Latest Caselaw 460 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Judgment: 23.01.2012

+             CM(M) 1446/2009 & CM No. 17995/2009


TARA V GANJU & ANR                                 ..... Petitioners
                           Through     Mr. Neeraj Kishan Kaul, Sr.
                                       Advocate with Mr. Dharmesh
                                       Misra, Mr. Siddhart Asthana
                                       and Ms. Gaurav Malik, Advs.

                      versus

BASANT & CO & ORS                                  ..... Respondents
                           Through     Mr. Shankar Vaidialingam and
                                       Ms. K.B. Hina, Advs.
                                       Ms. Rita Kaul, Adv. for R-5 &
                                       R-6.



CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1. Order impugned before this Court is the order dated

06.10.2009 vide which the application filed by the plaintiff seeking

an amendment of his plaint under Order 6 Rule 17 of the Code of

Civil Procedure (hereinafter referred to as the 'Code') had been

dismissed.

2. Record shows that the present suit has been filed by the

plaintiff for declaration, cancellation, permanent injunction,

possession and damages. There are seven defendants who have

been arrayed as parties. Contention of the plaintiff is that the

portion shown in blue and green colour shown in the site plan

filed along with the plaint is in possession of defendants No. 1 &

2; prayer for decree of possession along with other prayers as

contained in the prayer clause has been made. This was suit filed

in the year 1995.

3. It is not in dispute that thereafter three applications had

been filed seeking amendment of the plaint. The first application

dated 17.4.1996 had been allowed after a prolonged litigation by

a Bench of this Court on 26.04.2002 wherein the plaintiff had

been permitted to incorporate a fact that the possession of the

premises has been handed over by defendants No. 1 & 2 to a

tenant M/s Osram Surya (I) Pvt. Ltd. This amendment had been

allowed on 26.04.2002. The amended plaint shows that no

consequential amendment in the prayer clause had been made;

the amendment qua this fact had been contained in the body of

the plaint itself. Thereafter another application had been filed by

the plaintiff on 09.7.2002 seeking permission of the Court to

transpose NDMC as a party which has been permitted to be

withdrawn on 03.9.2003. The third application for amendment

had been allowed on 05.3.2005. It is also not in dispute that a

misc. petition (OMP No.409/2003) had also been filed by the

plaintiff on 29.10.2003 seeking a stay on the transfer of the

present suit proceedings from the High Court to the District

Courts which had been dismissed on 27.5.2009.

4. This application under Order 6 Rule 17 of the Code seeking

amendment in the plaint has been filed in the year 2005; the

averments made in the said application have been perused. It is

contended that the premises which were in occupation of the

company M/s Osram Surya (I) Pvt. Ltd. have since been vacated;

this has been contended in para 12 of the said application;

accordingly a prayer has been made to amend para 37 of the

existing plaint whereby the pecuniary jurisdiction of the suit

which had earlier valued it at `15 lacs is sought to be enhanced to

Rs. 25,25,530/-; necessary corollary would be that the jurisdiction

of the District Court would be ousted and the suit would have to

be transferred to the High Court as all matters relating to

pecuniary jurisdiction over and above `20 lacs are to be filed in

the High Court.

5. This prayer made in the application had been rejected. The

impugned order had noted that the proviso added by the

Amendment Act of 1999 to Order 6 Rule 17 of the Code limits the

powers of amendment; the negligence and lack of diligence shown

by the plaintiff was also a consideration which had weighed in the

mind of the trial Court to reject the application. Learned counsel

for the petitioner has placed reliance upon the judgment of the

Apex Court reported in 2003 (27) PTC 175 Lakha Ram Sharma

Vs. Balar Marketing Pvt. Ltd. to support his submission that at the

stage of dealing with an application under Order 6 Rule 17 of the

Code, the Court does not have to go into the merits of the matter

and such a question can only be decided at the trial of the suit;

further contention being that merely because an amendment may

take the suit out of the jurisdiction of one Court to another is no

ground for refusing the amendment. To the same effect is the

ratio of the judgment reported as 2009 (40) PTC 472 (Del.) Prem

Raj Parakh Vs. Shah Food Products & Anr.; it is submitted that

this is a rule of procedure and if the Court is otherwise satisfied

that the party applying was not acting malafide and if no prejudice

is caused to the non-applicant party, which is so in the present

case, the rules of procedure which are mere handmaids of justice

should be interpreted liberally and the relief should not be

refused. For the same proposition, reliance has also been placed

upon the judgment reported as AIR 1969 SC 1257 Jai Jai Ram

Manohar Lal VS. National Building Material Supply, Gurgaon as

also upon 128 (2006) DLT 460 Surinder Kau & Others Vs. S.

Rajdev Singh & Others. Contention is that this application had

been filed before framing of issues; further contention being that

the plaintiff is the dominus litus of his case and it is for him to

choose who are the parties he wants to array as defendants as

also to decide upon the pecuniary jurisdiction and as long as no

prejudice is suffered by the non-applicant, the Court should be

liberal in allowing the amendment.

6. Arguments have been refuted. Contention is that the

proviso to Order 6 Rule 17 of the Code is applicable to litigations

which have even been filed even prior to 2002 and for this

proposition reliance has been placed upon the judgment reported

as (2007) 1 SCC 765 State Bank of Hyderabad Vs. Town

Municipal Council. Further contention being that the plaintiff is

keeping the sword hanging on the defendant for no reason; the

amendments sought for do not in any manner fit in within the

parameters of Order 6 Rule 17 of the Code.

7. Perusal of the record shows that the submissions made by

learned counsel for the respondent have force. The original suit is

a suit for permanent and mandatory injunction coupled with a

prayer of possession from defendants No. 1 & 2; vide an order of

this Court dated 26.04.2002, the plaintiff had been permitted to

incorporate a plea that the premises have since been handed over

by defendants No. 1 & 2 to the tenant M/s Osram Surya (I) Pvt.

Ltd.; by virtue of this present application which has been filed in

2005, contention is that M/s Osram Surya (I) Pvt. Ltd. has since

vacated the premises; application is however totally silent as to

how and when the plaintiff came to know about the premises

having been vacated and as to how this pleading would be

necessary to decide the real controversy of dispute between the

parties which is the language of Order 6 Rule 17 of the Code.

8. The object of this provision is to do justice and not to shut

out justice merely on technicalities; this power has to be exercised

for deciding the real question in controversy between the parties;

in the first amended plaint it has already been incorporated that

the possession of the premises had been handed over by

defendants No. 1 & 2 to the tenant M/s Osram Surya (I) Pvt. Ltd.

The fact that he has vacated the premises will in no manner make

any difference to the case in hand; even assuming that this is a

true fact, it is not necessary to incorporate it as part of the

pleadings as it will not in any manner effect the controversy in

question between the parties which as noted supra is a suit which

has been filed by the plaintiff against the defendant seeking a

mandatory and permanent injunction as also possession of the suit

premises from defendants No.1 & 2 which as per the amendment

plaint had been handed over to M/s Osram Surya (I) Pvt. Ltd. The

application under Order 6 Rule 17 of the Code as noted above has

not whispered even one word as to how and in what

circumstances the fact of vacation of the suit premises by M/s

Osram Surya (I) Pvt. Ltd. was made known to the plaintiff and how

it will affect the merits of the controversy between the parties.

This averment in the application has thereafter been followed up

by a prayer that the pecuniary jurisdiction of the court

accordingly be enhanced from Rs.15 lac to Rs.25 lac; how and in

what manner this will serve the purpose of the petitioner has not

again been averred in the application.

9. Amendments have to be allowed to avoid uncalled

multiplicity of litigation; they should be viewed with a liberal

approach and delay may not be a ground for refusing a prayer for

amendment, if the merits of the case so demands. However, this is

not so in the instant case. The submission of the non-

applicant/defendant that the whole purpose of the amendment is

only to further delay the litigation and keep the sword hanging

upon the head of the defendant is an argument which cannot be

rejected straightaway as the record shows that the suit which has

been filed in the year 1995 has not been allowed to progress at all

and in fact the submission of learned counsel for the respondent

that orders on the application under Order XXXIX Rules 1 & 2 of

the Code have also not been passed is also not disputed. This is

not and could not be the purpose of allowing an amendment; the

Court is at total loss to understand how even in the eventuality

that the amendment is allowed in what manner will it throw light

upon the controversy in question between the parties; an

amendment cannot be allowed only as per the whim and fancy of

the plaintiff.

10. Impugned order in this context dismissing the application

under Order 6 Rule 17 of the Code thus suffers from no infirmity.

Dismissed.

                                        INDERMEET KAUR,J
JANUARY          23, 2012
A