Arvind Garg vs Neeta Singhal
2014 Latest Caselaw 3583 Del

$~11
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                            Date of decision: 7th August, 2014


+       I.A.No.4821/2014 (Order VI Rule 17 CPC) in CS (OS) 347/2010


        ARVIND GARG                                          ..... Plaintiff
                                Through:   Mr.Lalit Gupta, Mr.Jatin Kumar
                                           and Ms.Garima Goel, Advocates.

                                versus

        NEETA SINGHAL                                       ..... Defendant
                     Through:              Mr. Shoeb Shakeel, Advocate.

        CORAM:
        HON'BLE MR. JUSTICE G.P. MITTAL

G.P. MITTAL J. (ORAL)


1.

This is the third application under Order 6 Rule 17 CPC preferred

by the Plaintiff. The first application was dismissed as withdrawn

with liberty to file a fresh application. According to the learned

counsel for the Plaintiff, since explanations about income, financial

status and acquisition of the properties were to be given, a second

application for amendment of the plaint was moved which came to

be dismissed on merits by this court by an order dated 06.12.2013.

2. During hearing of the earlier said second application, it was urged

by the learned counsel for the Plaintiff that by virtue of the

amendments, the Plaintiff was not withdrawing any of his

submissions and the nature of the plaint remained the same. It was

stated that only additional reliefs of possession and rendition of

accounts was being sought, though this averment of the Plaintiff

was objected to by the learned counsel for the Defendant.

However, nothing was pointed out by the learned counsel for the

Defendant to show whether any submission was withdrawn or

whether any relief was claimed vide amendment which was barred

by limitation. Para 9 of the order dated 06.12.2013 is extracted

hereunder:

"9. First I deal with the submissions of the learned counsel for the plaintiff, namely, that by the present amendment application, no relief which is barred by time is sought to be added, no admission is sought to be withdrawn and that the nature of the plaint after the amendments remains the same. Learned counsel for the defendant has controverted this contention. However, when it was requested to the learned counsel for the defendant to point out as to what portion of the proposed amendments tends to change the nature of the case, he was unable to do so."

3. However, while dismissing the application, this Court observed

that the amendments sought would be permissible only under

Section 151 CPC under special circumstances and not under Order

6 Rule 17 CPC. Para 19 of the order is extracted hereunder:

"19. What the plaintiff actually intends to do is not really alter or amend the pleadings but replace the entire pleadings with altogether new pleadings. In my view, complete replacement of old plaint with a completely new plaint is not permitted under Order 6 Rule 17 CPC. It may be possible to permit such a change in certain special circumstances under section 151 CPC. But no such special circumstances are pleaded or argued."

4. By virtue of the present application, again the Plaintiff wants to

replace almost the entire plaint, however, during hearing of the

application, it is submitted by the learned counsel for the Plaintiff

that the Plaintiff may be permitted to amend only paras 14 to 18 of

the plaint, the prayer clause and the cause title.

5. The special circumstances now pointed out by the learned counsel

for the Plaintiff seeking the amendments are stated in para 34 on

pages 55 to 59 of the amendment application. The sum and

substance of the special circumstances is that most of these facts

which existed at the time of filing of the suit were brought to the

notice of the original counsel Mr. B.R.Sharma, but the said counsel

was of the view that these details were not required as the same

were matters of evidence. It is stated that thereafter, the Plaintiff

suffered various chronic ailments and subsequently suffered a

major heart attack in February, 2011 and underwent angioplasty in

Sir Ganga Ram Hospital.

6. The application for amendment is opposed by the learned counsel

for the Defendant but as pointed out by this Court in the order

dated 06.12.2013, para 9 of which has been extracted earlier, it has

not been pointed out by the learned counsel for the Defendant by

amendment, whether any submission made by the Plaintiff is

sought to be withdrawn or the relief, i.e. the relief of possession,

now being sought, is barred by limitation.

7. Since the learned counsel for the Plaintiff during the course of

hearing confined the application only to the amendments in paras

14 to 18 of the plaint, the prayer clause and the cause title as

mentioned in para 11 of the application, it cannot be said that the

Plaintiff now seeks to replace the entire plaint. It is stated by the

learned counsel for the Plaintiff that the sale deed in respect of the

Bahadurgarh property was executed by the Defendant only after

filing of the suit. It is urged that as per legal advice, it has become

necessary to seek the relief of possession of all the properties,

rendition of accounts and permanent and mandatory injunction

against the Defendant.

8. Admittedly, the trial of the suit is yet to begin. The sum and

substance of the case set up by the Plaintiff is that the suit

properties were purchased by him either in joint name with

Defendant no.1(his wife) or in the name of Defendant no.1(his

wife) only out of the funds provided by him. The Plaintiff, by

virtue of the amendment stated in para 11 of the application wants

to change the cause title of the suit by making addition of the

reliefs of rendition of accounts and possession. By virtue of the

amendment as stated in paras 11 and 25 to 35 of the application,

the Plaintiff wants to amend paras 14 to 18 of the plaint. He has

made averments to show as to how he is entitled to declaration,

rendition of accounts and possession of the properties which are the

subject matter of the suit.

9. It is well settled that the Court should allow all amendments that

may be necessary for determining the real question and controversy

between the parties provided that it does not cause injustice or

prejudice to the other side. The Defendants have not been able to

show any prejudice that may be caused to them by amendment of

these paras. The basic structure of the suit will not be altered by

the proposed amendments. The Plaintiff is not debarred from

seeking the reliefs of rendition of accounts and possession on the

same basic facts as are pleaded in the plaint seeking reliefs of

permanent injunction and mandatory injunction. Moreover,

truthfulness or falsity of the averments sought to be included by

way of amendment is not to be seen at the time of deciding the

application for amendment. No special circumstance need be

pointed out as now the Plaintiff has merely confined his prayer to

the amendments as mentioned in paras 11 and 25 to 30 of the

amendment application.

10. Since no new case is sought to be set up, the Plaintiff is permitted

to amend the cause title of the plaint as stated in para 11 of the

application and amend paras 14 to 18 of the plaint as stated in paras

25 to 30 of the application seeking amendment, subject to payment

cost of Rs.5,000/-.

11. The application stands disposed of.

CS (OS) 347/2010

12. The amended plaint shall be taken on record subject to filing of the

proper Court fee. Let amended plaint be filed within four weeks.

Written statement be filed within four weeks thereafter.

13. List before the Joint Registrar for completion of pleadings on 17th

November, 2014.

14. List before the Court on 9th February, 2015.

(G.P. MITTAL) JUDGE AUGUST 07, 2014 mr