Anwar Parvez vs Mohd Faheem & Ors.
2014 Latest Caselaw 3953 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   C.M.(M) No.608/2013 & C.M.No.9181/2013

%                                                    27th August, 2014

ANWAR PARVEZ                                                 ......Petitioner
                          Through:       Mr.Ramesh Kumar, Advocate.

                          VERSUS

    MOHD FAHEEM & ORS.                                       ...... Respondents

                    Through:             Mr.Sarthak with Mr.Udyan
                                         Srivastava, Advocates.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This petition under Article 227 of the Constitution of India impugns

the order of the trial court dated 26.4.2013 which has dismissed an

application for amendment filed by the petitioner/plaintiff. The application

for amendment was filed before framing of issues. The application for

amendment was filed in a suit for declaration with respect to dissolution of

partnership, permanent injunction, infringement of trademark etc.

2. By the amendment application, the petitioner/plaintiff seeks addition

of the relief of rendition of accounts. Trial court has dismissed the

application by a cryptic order only by observing that relief of rendition of

account was not originally sought and the new facts which are sought to be

incorporated were available with the plaintiff/petitioner at the time of filing

of the present suit, and therefore the amendment application cannot be

allowed.

3. In my opinion, the trial court has committed a gross illegality and

perversity in disallowing the amendment application because the very basis

of filing of the amendment application is that a mistake has been committed

by omitting certain facts and reliefs, and consequently the amendment

application is filed. The very reason for existence of Order VI Rule 17 of

the Code of Civil Procedure, 1908 (CPC) has been demolished by the

impugned order. I fail to understand as to how courts can dismiss an

amendment application in this perfunctory manner. It is settled law that

CPC is a handmaid of justice. Parties do make mistakes in the conduct of

their cases but such mistakes are allowed to be corrected provided there is no

grave injustice to the other side. In the present case, there cannot be any

prejudice whatsoever to the respondents/defendants because by allowing of

the amendment, a relief which ought to have been claimed initially but not

claimed by mistake is being claimed, and which is allowed to be

incorporated along with relevant amendments. On merits the

respondents/defendants during the course of trial will have sufficient

opportunity to disprove the case of the plaintiff/petitioner because by

allowing of an amendment, the facts as stated in the amendment application

are accepted as correct.

4. In view of the above, the impugned order dated 26.4.2013 is set aside

and the amendment application of the petitioner/plaintiff stands allowed.

Written statement will be filed by the respondents/defendants in terms of the

directions which will be passed by the trial court.

5. Let the parties appear before the trial court on the next date for

hearing i.e 03.9.2014. Parties are left to bear their own costs.

VALMIKI J. MEHTA, J AUGUST 27, 2014 KA