Ms. Manju Sharma vs Prajesh Dagar
2014 Latest Caselaw 6733 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM(M) No.1087/2014
%                                                  12th December, 2014

MS. MANJU SHARMA                                       ..... Petitioner
                          Through: Ms. Anshu Priyanka, Adv.

                          versus

PRAJESH DAGAR                                      ..... Respondent
                          Through

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

CM No. 20454/2014 (exemption)

      Exemption is allowed subject to all just exceptions.

      The application is disposed of.

CM(M) No. 1087/2014 & CM No.20455/2014 (stay)

1.    This petition under Article 227 of the Constitution of India is filed by

the defendant in the suit impugning the order dated 16.9.2014 of the trial

court whereby the trial court has allowed the amendment application under

Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) filed by the

respondent/plaintiff whereby the suit seeking injunction has been amended

into a suit seeking specific performance.
CMM 1087/2014                                                     Page 1 of 3
 2.    The trial court notes that actually and effectively only the relief is

being changed because even in the existing suit plaint seeking injunction, the

relief claimed was on the basis of the subject agreement to sell dated

8.12.2010 with respect to the property bearing No.247, Pocket C-11, Sector

4-3, Rohini, Delhi-110085. The respondent/plaintiff had erroneously only

sought injunction, and now more or less on the same set of facts, the relief of

specific performance is sought qua the same agreement to sell dated

8.12.2010.

3.    Counsel for the petitioner argues that certain additional facts have

been added so a new case is being set up but that is not a correct argument

inasmuch as merely because some facts are added a new case is not set up as

the basic set of facts remain the same and hence will not amount to complete

change of the nature of the case of the respondent/plaintiff as is sought to be

argued. I may only at this stage note that by allowing the amendment to the

plaint, the same does not mean that the case as newly pleaded is accepted by

the Court, because, at the time of allowing an application for amendment

merits of the matter are not seen and which merits of the matter will be

decided after completion of pleadings and trial and at the stage of final

arguments. Petitioner surely will have ample opportunity to rebut the case

set up in the amended plaint (which is to be filed pursuant to the impugned
CMM 1087/2014                                                      Page 2 of 3
 order allowing the amendment) because the petitioner/defendant can take all

pleas of facts and law in the amended written statement now to be filed, so

as to seek dismissal of the suit.

4.    In view of the above there is no merit in the petition and the same is

therefore dismissed.



DECEMBER 12, 2014                             VALMIKI J. MEHTA, J.

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