Sh. Rajesh Mittal vs Sh. Sumer Chand & Anr.
2014 Latest Caselaw 4662 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+
  C.M.(M) No.860/2014 and C.M.Nos.15426/2014 (Stay), 15427/2014
 (Exemption)


%                                                    19th September, 2014

SH. RAJESH MITTAL                                            ......Petitioner
                          Through:       Mr.Manish Aggarwal, Advocate.

                          VERSUS

SH. SUMER CHAND & ANR.                                       ...... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Challenge by means of this petition under Article 227 of the

Constitution of India is to the orders passed by the trial court dated

04.4.2014 and 31.7.2014. By the order dated 04.4.2014, the amendment

application filed by the respondents/plaintiffs was allowed whereby the

respondents/plaintiffs were allowed to add the aspect with respect to

mortgage of the property and detailed facts with respect to which were stated

as paras 5 to 5(E) in the amendment application. By the subsequent order

dated 31.7.2014, the trial court has rejected the request made on behalf of

the petitioner/defendant to reject the amended plaint on the ground that the

same is not in accordance with amendment allowed vide order dated

04.04.2014.

2. Firstly, I may note that one petition challenging two wholly different

orders cannot be filed i.e there cannot be filed a challenge to an order

allowing an application for amendment and also to a second order which

rejects the objection that the amended plaint is not in accordance with the

amendment allowed i.e either the amendment is allowed and amended plaint

has to be in accordance with the amendments permitted or the amendment is

not to be allowed and is challenged. Both aspects cannot be challenged

together, and therefore this petition is liable to be thrown out on this short

ground itself.

3. This petition is also liable to be rejected in limine as regards the

challenge against the order dated 04.4.2014, because, the

petitioner/defendant is estopped from challenging the order dated 04.4.2014

after the petitioner/defendant contested and sought an order that the

amended plaint filed is not in accordance with the amendment allowed and

which has resulted in the second order dated 31.7.2014 rejecting the

objection that the amended plaint filed is not in accordance with the order

dated 04.4.2014 allowing the amendment application.

4. Even if we see the merits, it is trite that by allowing an amendment

application, merits of the case are not decided i.e by allowing an amendment

only a case is allowed to be put up and that case will have to be proved in

accordance with law during the trial of the case. Also, the amendment

which has been allowed in the present case of the respondents/plaintiffs is at

an early point of time in the suit when the issues in the suit were also not

framed. Therefore, looking at it in any manner with respect to the

amendment application being not delayed in any manner, and that by

allowing of the amendment only a case is allowed to be put forth and which

will have to be proved before the trial court, no prejudice is caused to the

petitioner/defendant by the order dated 04.4.2014 allowing the amendment.

5. Now for the sake of argument, let us take that the petitioner/defendant

can also be allowed to challenge the order dated 31.7.2014 by which it was

contended that the amended plaint is not in accordance with the order by

which amendment was allowed on 04.4.2014. On this aspect, I find that the

trial court has rightly rejected the stand of the petitioner/defendant because

the order dated 04.4.2014 shows that amendment which was permitted was

to para 5 of the plaint and the amendments prayed pertained to the issue of

mortgage. Therefore, it is misconceived on behalf of the

petitioner/defendant to argue that when the order dated 04.4.2014 says 'one

fact' of mortgage is allowed to be added by the amendment, then that means

out of paras 5 to 5(E) which are proposed to be added by amendment, only

the first para 5 was allowed to be amended. This is surely a most absurd

argument because if we take this argument to a logical conclusion, 'one fact'

would not mean only one word i.e mortgage, and obviously that was not the

intent and purport of the order dated 04.4.2014.

6. In view of the above, this petition is wholly misconceived, and the

same is therefore dismissed with the costs of Rs.20,000/-. Costs shall be

paid to the respondents/plaintiffs by the petitioner/defendant on account of

the petitioner/defendant unnecessarily causing delay in the disposal of the

suit of the respondents/plaintiffs. Costs shall be paid to the

respondents/plaintiffs on the next date of hearing before the trial court.

VALMIKI J. MEHTA, J SEPTEMBER 19, 2014 KA