J.K. Kashyap vs Rajiv Gupta And Ors.
2012 Latest Caselaw 4302 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI


+        IA Nos. 4595/2012 & 2742/2012 in CS(OS) 2156/2007


         J.K. KASHYAP                    ..... Plaintiff
                             Through Mr. M. Dutta, Adv.

                        versus


         RAJIV GUPTA AND ORS               ..... Defendants
                      Through Mr. Abhishek Singh with Mr. Abhinav,
                               Advs.


         CORAM:
         HON'BLE MR. JUSTICE KAILASH GAMBHIR


                        ORDER

% 20.07.2012

1. This order shall dispose of two separate applications filed by the

plaintiff.Vide IA No. 4595/2012 an application has been filed under

order 6 Rule 17 CPC to seek amendment in the plaint. Vide I.A. No.

2742/2012 filed under Order 7 Rule 14 CPC read with section 151 of

CPC, the plaintiff seeks to bring on record certain documents. Both

the applications being borne out of the same cause of action and the

genesis of both of them being common, they are being disposed by a

common order.

2. Through the amendment application, the plaintiff seeks to

introduce some new facts based on his alleged meeting with Mr.

Shabi-ul-Hasan S/o of Ms. Jamila Gupta for the purpose of preparing

his evidence, when Ms. Jamila Gupta had informed the plaintiff about

the exchange of certain letters between the plaintiff and herself

clearly establishing the stand of the plaintiff in the suit that the

amount of Rs. 45 lakhs is a part of total sale consideration amount

agreed between the parties to the suit. Three letters, which were

handed over by Smt. Jamila Gupta to the plaintiff are (a) original copy

of the letter dated 8.2.2005 addressed by the plaintiff to Jamila Gupta

(b) photocopy of the letter dated 11.2.2005 addressed by Jamila Gupta

to the plaintiff (c) photocopy of the letter dated 16.2.2005 addressed

by Jamila Gupta to the plaintiff. In I.A. No. 4595/2005 moved by the

plaintiff under Order 7 Rule 14 CPC the plaintiff seeks leave to place

on record the said three letters, which as per the plaintiff were not in

his possession and custody at the time of the filing of this suit or even

thereafter till the same were handed over to him by the said Jamila

Gupta between 24.1.2012- 28.1.2012.

3. While arguing these applications the counsel for the plaintiff

submitted that main controversy involved between the parties hinges

around the fact that whether the said payment of Rs. 45 lakhs made

by the plaintiff to Jamila Gupta for taking possession of basement and

ground floor of the suit property was part of the total sale

consideration amount of Rs. 4.80 crores or the said sum was to be

paid by the plaintiff over and above the sale consideration amount to

defendants No. 1 and 2. Counsel thus submits that the said three

documents are very material in nature to adjudicate the controversy

involved between the parties and the amendment sought by the

plaintiff incorporating only those facts explaining as to how the

plaintiff got the said three letters from Smt. Jamila Gupta are merely

clarificatory in nature and the plaintiff is not introducing any new

case or any new cause of action through the said amendment. Counsel

further submits that since the said documents were delivered to him

by the said lady Jamila Gupta and, therefore the plaintiff was not in a

position to file the same till the time the same were delivered to him

in the last week of January 2012. In support of his arguments counsel

for the plaintiff placed reliance on the following judgments:-

1. Revajeetu Builders and Developers vsNarayanaswamy and Sons

and Ors.(2009) 10 SCC 84.

2. Surender Kumar Sharma vsMakhan Singh (2009) 10 SCC 626.

3. Sushil Kumar Jain vsManoj Kumar and Anr.(2009) 14 SCC 38.

4. Lakha Ram Sharma vsBalarMarkerting Private Limited (2008)

17 SCC 671.

5. RajkumarGurawara (Dead) through Lrs. vs S.KI. Sarwagi and

Company Private Limited and Anr.(2008) 14 SCC 364.

4. These Applications have been vehemently contested by the

defendants. One of the principal pleas raised by the counsel for the

defendant is that in view of the proviso of Order 6 Rule 17 of the Code

of Civil Procedure, 1908, the plaintiff cannot be permitted to amend

the plaint at this stage. The learned counsel for the defendants further

submits that in the present suit the trial has already begun and,

therefore, the plaintiff would have to splash out a very strong case in

order to persuade the Court to allow the plaintiff to bring the said

three letters on record and for seeking amendment based on the facts

concerning the said three letters. Counsel further submits that Jamila

Gupta is in active camaraderie/ association with the plaintiff and,

therefore, the plaintiff is in a position to produce any such letters at

any point in time as per his convenience from Ms. Jamila Gupta.

Counsel also submits that three letters were not sent by the parties

through post or other mode of communication but they were alleged

to have been personally delivered to each other and this stand itself

creates enough suspicion on the authenticity and genuineness of the

said letters. Counsel also submits that the plaintiff has not given any

sufficient or plausible reasons in both the applications for filing the

said documents at such a belated stage; therefore, both the

applications filed by the plaintiff deserve outright dismissal. In

support of his arguments counsel for the defendants placed reliance

on the following judgments:-

1. Gold Rock World Trade Ltd. vsVeejay Lakshmi Engineering

Works Ltd. (2008) 249PLR 40.

2. Revajeetu Builders and Developers vsNarayanaswamy and Sons

and Ors.(2009) 10 SCC 84.

3. Salem Advocate Bar Association, Tamil Nadu vs Union of India

AIR 2005 SC 3353.

4. Vidyabai and Ors. Padmalatha and Anr. (2009) 2 SCC 409

5. I have heard learned counsel for the parties at length and given

my anxious consideration to the arguments advanced by them.

6. It is not in dispute between the parties that the matter is at the

evidence stage. Issues in the present case were framed by this Court

vide orders dated 8th August, 2011 when also this Court had directed

the consolidation of the present suit along with Suit No. 277/2007.

After framing the issues in the present suit the matter was directed to

be placed before the Joint Registrar on 21st September, 2011 for fixing

the dates for recording the cross-examination of the witnesses of the

plaintiff. Vide order dated 16th November, 2011 the Hon'ble Division

Bench while disposing of FAO(OS) No. 260-261/2011 appointed the

Local Commissioner to record the evidence of the parties on the joint

request made by the parties. It was also directed that the plaintiff

shall file his evidence by way of affidavits in the suit on or before 20th

December, 2011. Pursuant to the said direction of the Hon'ble

Division Bench the plaintiff has filed his entire evidence by way of

affidavits before the Local Commissioner. The matter was fixed before

the Local Commissioner on 31.1.2012. It is thereafter, that the

plaintiff had moved these applications. It is around the same period

that the plaintiff moved an application vide I.A. No. No. 2770/2012

under Order 16 Rule 1(3) of Civil Procedure Code 1908 in order to

introduce the name of Smt. Jamila Gupta as one of the witness in the

list of witnesses as was initially filed by the plaintiff. It would be thus

seen that the plaintiff has filed these applications much later, when

already the present suit along with the other two suits had entered

the trial stage. The contention of the counsel for the plaintiff that the

matter has not yet entered the stage of trial is farce as the plaintiff

has already filed his evidence by way of affidavit and examination-in-

chief of the witnesses in the Trial has already commenced. In the

judgment of the Apex Court reported in (2009) 2 SCC 409, it has been

observed that "the date on which the issues are framed is the date of

first hearing and filing of an affidavit in lieu of examination in chief of

the witness, inour opinion, would amount to "commencement of

proceedings." Relevant paras 11 and 12 of the same are reproduced

as under:-

"11. From the order passed by the Ld. Trial Judge, it is evident that the respondents had not been able to fulfill the said precondition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are frames is the date of the first hearing. Provisions of the Code of Civil Procedure Code envisage taking of various steps at different stages of the proceedings. Filing of an affidavit in lieu of the examination - in- chief of the witness, in our opinion, would amount to "commencement of proceedings.""

12. Although in a different context, a three judge Bench of this Court in Union of India V. Major General Madan Lal Yadav took note of the dictionary meaning of the terms "trial" and "commence"to opine (SCC p.136, para 19) "19. It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the

accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial."

Thus it is quite manifest that the plaintiff is seeking to amend his suit

after the commencement of the trial. The proviso inserted to Order 6

Rule 17 through Civil Procedure Code (Amendment) Act, 2002 is

couched in a mandatory form and unless the conditions laid down in

the said proviso are satisfied the Court will not exercise its discretion

in allowing such an amendment by adopting a liberal approach. The

Court thus has to examine whether any case has been made out by

the plaintiff, to satisfy the inhibitions laid under order 6 Rule 17 of the

Code of Civil Procedure, 1908demonstrating the exercise of due

diligence on his part for not having raised these amendments before

the commencement of the trial.

7. Order 6 Rule 17 is a very important provision ingrained in C.P.C it

is pellucid that no civil suit, perhaps can complete its journey of

reaching a final destination without there being an application under

Order 6 Rule 17. It can be said by judicial experience that many a

times this provision is misused with an oblique motive to

unnecessarily drag the civil proceedings. One can trace enough law

on this subject as settled by the various High Courts and the Hon'ble

Supreme Court on this single provision but recent judgment in the

case of Revajeetu Builders and Developers vsNarayanaswamy and

Sons and Ors. reported in (2009) 10 SCC 84 has dealt with this

provision more extensively elaborating the broad contours and

horizons that needs consideration while dealing with the applications

for amendment. The relevant para of the same is reproduced as

under:-

"Factors to be taken into consideration while dealing with applications for amendments:

63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(1) Whether the amendment sought is imperative for proper and effective adjudication of a case: (2) Whether the application for amendment is bonafide or malafide;

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of a case; (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under order 6 Rule 17."

7. While setting out the said parameters the Apex Court also

observed that the said principles are only illustrative and not

exhaustive and ultimately it is the discretion of the Court to allow or

disallow any amendment depending upon the facts of each case. In

the penultimate para of the said judgment the Hon'ble Apex Court

also observed that the decision on an application under Order 6 Rule

17 CPC is very serious judicial exercise and the same should never

be undertaken in a casual manner. It was further observed that while

deciding application for amendments the Court must not refuse the

bona fide, legitimate, honest and necessary amendments and at the

same time should never permit mala fide, worthless and/or dishonest

amendments. Also, the amendments which bear the character of

altering the suit by and large, which may totally alter the character of

an action should not readily be granted, while all the necessary care

should be taken to see that injustice and prejudice of an irremediable

character are not inflicted on the opposite party under the pretence of

amendment, thus one distinct cause of action should not be

substituted by another and that the subject matter of the suit should

not be changed by another.

Applying the above principles to the facts of the present case

this Court find merit in the submission of the counsel for the

defendant that the amendment now being sought by the plaintiff is not

honest but with an oblique and dishonest motive. The present suit was

filed by the plaintiff on 25th October, 2007 and the letters, which the

plaintiff intends to introduce through these two applications pertains

to the year 2005. It is almost after 7 years the plaintiff has sought to

introduce three letters in order to mettle his case claiming that the

said sum of Rs. 45 lakhs was part of total sale consideration amount.

It is thus not mere incorporation of new facts in the amendment

application but the main object of the plaintiff is to introduce the

three letters dated 8.2.2005, 11.2.2005 and 16.2.2005 through which

the plaintiff wants to strengthen the main plea in the case.

Indisputably, the source of these letters are none other than but Smt.

Jamila Gupta herself, who is stated to have received letter dated

8.2.2005 from the plaintiff and had also retained two photocopies of

the letter dated 11.2.2005 and 16.2.2005 addressed by her to the

plaintiff. This very Jamila Gupta has been introduced as a witness not

in the initial list of witnesses but in the application filed by the

plaintiff vide I.A. No. 2770 of 2012. There is no reference of these

letters found in the plaint or in the replication filed by the plaintiff and

the same are camouflaged from the source who is supporting the case

of the plaintiff. These letters were not sent through post and it has not

been explained as to how these letters were exchanged between the

plaintiff and Smt. Jamila Gupta. No plausible explanation was brought

forth by the ld. counsel for the plaintiff when he was questioned that

he can get any such letters written at any point in time from Jamila

Gupta once she is seen supporting the case of the plaintiff. To assert

that the amendment sought by the plaintiff is merely clarificatory in

nature and, therefore, liberal approach should be adopted, this

argument of the counsel for the plaintiff could hardly persuade this

Court keeping in view the peculiar background of the facts of the

present case.

8. As already mentioned above the main objective of the plaintiff is

to introduce the said three letters through the present amendment

application as well as application filed by the plaintiff under Order 7

Rule 14 CPC. Under Order 13 Rule 1 CPC it is incumbent upon both

the parties to produce the original documents before the settlement of

issues in a case. Order 7 Rule 14 CPC also obligates the plaintiff to

produce document upon which he has relied upon at the time of the

presentation of the plaint and if not produced at that stage then such

a document can be received in evidence only with the leave of the

Court and not otherwise. For seeking leave of the Court the parties

seeking to produce documents at a belated stage must satisfy the

Court, that the said documents were not within his knowledge earlier

or could not be produced by him at the appropriate time in spite of

exercise of due diligence. In the facts of the present case the plaintiff

has not given any reasons for not having produced the said documents

at the time of the presentation of plaint or even before the settlement

of issues. The plaintiff has also not referred to exchange of any such

communication between him and Jamila Gupta either in the plaint or

in the replication. Out of the three letters two letters were alleged to

have been received by the plaintiff form the Jamila Gupta and,

therefore, it cannot be said that they were not in possession and

power of the plaintiff. While dealing with the scope of Order 7 Rule 14

CPC this Court in the case of Gold Rock World Trade Ltd. vs Veejay

Lakshmi Engineering Works Ltd. reported in (2008)149 PLR 40 held

as under:-

"Consequently , before leave of Court can be granted for receiving documents in evidence at a belated stage, the party seeking to produce the documents must satisfy the court that the said court that the said documents were earlier not within Party's knowledge or could not be produced at the

appropriate time in spite of due diligence. Conditions necessary before leave of court can be granted have not been satisfied. It can cannot be said that the plaintiff was not aware of the documents earlier, or that the same could not be produced in spite of due diligence on the part of the plaintiff. As the plaintiff was not diligent enough at that point of time, this Court is left with no alternative but to reject its request."

9. In the light of the aforesaid discussion this Court does not find

any merit in the said two applications as the incorporation of new

facts in the plaint and filing of the said three letters by the plaintiff

through I.A. Nos. 2742/2012 and 4595/2012 are with utter dishonest

and oblique motives. Both these applications are dismissed with costs

of Rs. 15,000/-.

                                        KAILASH GAMBHIR, J
JULY        20, 2012
rkr