Shri Manoj Kumar vs Shri Rajinder Singh Sawhney And ...
2015 Latest Caselaw 3028 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 CS(OS) 547/2008
                                                 Decided on 16.04.2015
IN THE MATTER OF :
SHRI MANOJ KUMAR                                   ..... Plaintiff
                        Through: Ms. Neha Kapoor, Advocate

                        versus


SHRI RAJINDER SINGH SAWHNEY AND OTHERS         ..... Defendants
                    Through: Mr. V.K. Goswami, Advocate

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

I.A. 3360/2014 (by the plaintiff u/O VI R 17 CPC)

1. On the last date of hearing, counsel for the plaintiff was

requested to examine as to whether the present suit as filed would be

maintainable when three different sets of causes of action have been

clubbed in one suit and the plaintiff has sought separate reliefs against

each of the three defendants in respect of three separate Agreements

to Sell executed for sale/purchase of different parcels of land.

2. Today, learned counsel for the plaintiff points out that the

Agreements to Sell executed between the plaintiff and the three

defendants are dated 21.11.2005 qua the defendant No.1 and dated

30.11.2005 qua the defendants No.2 and 3 and the parcels of land in

question are situated in village Badarpur Khadar, Burari. She submits

that the defendants No.1 and 2 are the Directors of the defendant

No.3/company and all the three defendants are owners of different

parcels of land situated in the same village in respect whereof the

plaintiff had entered into separate Agreements to Sell that are the

subject matter of the present suit. It is thus clarified that as the three

Agreements to Sell were a part of a series of transactions in respect of

different parcels of land, all situated in the same village, the present

suit as instituted would be maintainable.

3. The Court is satisfied with the explanation offered by the counsel

for the plaintiff and the case is proceeded with insofar as the present

application for seeking amendment of the plaint is concerned.

4. The present application has been filed by the plaintiff praying

inter alia for permission to amend the plaint.

5. Before dealing with the submissions made by the learned

counsel for the plaintiff, it is relevant to note that the suit was

instituted on 26.03.2008. After the pleadings were completed, issues

were framed on 18.04.2009 on which date, the parties were directed

to file their list of witnesses within four weeks and produce the

affidavits way of evidence within eight weeks. With these orders, the

suit was directed to be placed before the Joint Registrar on

18.08.2009. On 18.08.2009, the learned Joint Registrar had recorded

that none of the parties had complied with the order dated 18.04.2009

and last opportunity was granted to them to make compliances within

two weeks.

6. On 15.10.2009, as the affidavit by way of evidence filed by the

plaintiff was not on record, last opportunity was granted to the plaintiff

to file his affidavits, subject to payment of costs of `3,000/- and the

case was renotified for 18.01.2010 for examination/cross-examination

of the plaintiff's witnesses. On 18.01.2010, it was recorded that the

affidavits by way of evidence of PW Manoj Kumar, PW, Ashok Kumar

and PW, Hari Kishan had been filed and the same were taken on

record and the case was adjourned to 20.04.2010 for recording the

testimony of the plaintiff's witnesses. The cross-examination of the

plaintiff had commenced on 14.11.2011 and his further cross-

examination was deferred from time to time for the reason that in the

interregnum, counsels for the parties had stated that they were

exploring the possibility of a settlement, as recorded in the order

dated 04.08.2010.

7. Thereafter, on 31.03.2011, counsels for the parties had stated

that a compromise could not be arrived at between their clients and

the suit was placed before the Joint Registrar on 8.7.2011 for

recording the cross-examination of the plaintiff's witnesses. However,

the plaintiff had failed to turn up for his cross-examination on the date

fixed and on the subsequent dates and repeated costs were imposed

on him by the learned Joint Registrar. Finally, on 29.01.2014, when

the case came up before the Joint Registrar for recording the plaintiff's

evidence, Ms. Neha Kapoor, learned counsel for the plaintiff had

submitted that certain typographical errors were discovered in the

plaint and she proposed to file an amendment application. The present

application came to be filed by the plaintiff on 10.02.2014.

8. The explanation offered for seeking amendment of the plaint is

that certain typographical errors have crept therein, due to which the

defendants have been wrongly described in paras 2 and 3. Learned

counsel states that in para 2 of plaint, instead of mentioning the name

of the defendant No.2, the defendant No.1 has been typed out and in

para 3, instead of mentioning the name of the defendant No.1, the

name of defendant No.2 has been wrongly typed out. Additionally, the

plaintiff seeks to amend para 6 of the plaint by substituting the total

sale consideration mentioned as "`1 crore", with the figure, "`82 lacs".

9. Counsel for the plaintiff states that it is not understandable as to

how the previously engaged counsel for the plaintiff had miscalculated

the total sale consideration, subject matter of the three Agreements to

Sell executed by the three defendants and had mentioned the figure of

`1 crore in para 6 of the plaint whereas the correct figure is `82 lacs.

She submits that it has been specifically averred in para 8 of the

application that as per three separate agreements executed between

the plaintiff and the defendants, the total land measuring 41 acres was

agreed to be purchased by the plaintiff @ `1.5 lac per acre but

subsequently, the defendant No.2 had changed the land rate to `2 lacs

per acre and on the said basis, the total sale consideration comes to

`82 lacs. Learned counsel states it is on account of the aforesaid

errors that have crept in the plaint that the plaintiff has had to file the

present amendment application.

10. The present application is resisted by the defendants, who have

filed their reply in opposition thereto. Counsel for the defendants

states that the application is not maintainable in view of the proviso to

Order VI Rule 17 CPC, which stipulates that no application for

amendment shall be allowed after the trial has commenced. He states

that the trial had commenced in the present case as long back as on

14.11.2011 and it is on account of procrastination on the part of the

plaintiff that his cross-examination has not been completed though his

evidence-in-chief has already been taken on record and he has been

partly cross-examined thereafter. He contends that the plaintiff

cannot lay the entire blame at the door of the previous counsel for the

alleged inaccuracy in mentioning the total sale consideration in the

plaint when the present counsel was engaged by the plaintiff as long

back as in the year 2012. He concludes by submitting that if the

present application is allowed, it would result in nullifying the

plaintiff's cross-examination that has already conducted by the

defendants and material discrepancies have emerged therein.

11. In rejoinder, counsel for the plaintiffs seeks to explain that

though she had been engaged by the plaintiff in the year 2012, the

parties had remained in a settlement mode for a long time and only

after a settlement could not be reported that the case was put back on

the rails for recording the plaintiff's evidence. She presses the present

application and states that the same ought to be allowed as the

amendments sought are quite innocuous.

12. The Court has heard the submissions made by the counsels for

the parties.

13. Undoubtedly, the power of the Court to permit amendment in

the plaint is wide enough and amendments can be permitted even if

there is a substantial delay in filing such an application as the end

purpose is that substantial justice must be rendered to the parties.

However, the embargo placed in the proviso to Order VI Rule 17 CPC

cannot be overlooked. It is clearly prescribed in the proviso to Order

VI Rule 17 CPC that no application for amendment shall be allowed

after the trial has commenced unless the Court comes to the

conclusion that inspite of due diligence, the party could not have

raised the matter before the commencement of trial.

14. Having regard to the nature of amendments sought by the

plaintiff, it can hardly be stated that he has shown due diligence in

pursuing the case or that despite due diligence, he could not seek the

amendments proposed to be incorporated in the plaint. The plaintiff

claims to be the purchaser of three parcels of land on the basis of

three sets of Agreements to Sell executed by him with three

defendants as long back as in the year 2005. Assuming that an error

had crept in the averments made in the plaint insofar the total sale

consideration is concerned, the same would have surely been noticed

by the plaintiff when he had filed his affidavit by way of evidence on

15.01.2010. However, the present application has been filed by the

plaintiff after four years reckoned from the said date, i.e., in January,

2014 and that too, without offering any explanation for the prolonged

delay. The Court is not satisfied with the filmsy explanation sought to

be offered by learned counsel for the plaintiff for permission to amend

the plaint.

15. Furthermore, the submission made by learned counsel for the

plaintiff that due to a typing error, the names of defendants No.1 & 2

have got interchanged in paras 2 & 3 of the plaint may appear to be

innocuous at first glance, but when carefully examined, the Court finds

merit in the submission of the learned counsel for the defendants that

the plaintiff was well aware of the fact that the Agreements to Sell do

not even bear the signatures of the defendant No.2. So the question

of erroneously interchanging the names of defendant No.1 for

defendant No.2 and vice versa, does not arise. In fact, issues were

framed in the suit as long back as on 18.4.2009 and one of the issues

framed was with regard to privity of contract between the parties. So

the plaintiff was put to notice about the objection taken by the

defendants in this regard.

16. Even otherwise, the records reveal that evidence has already

commenced in the suit and the plaintiff is under cross-examination.

The defendants are justified in submitting that under the garb of the

amendment application, the plaintiff cannot be permitted to overcome

the contradictions that have emerged in the course of his cross-

examination, as it would certainly disadvantage them.

17. The decision in the case of Pankaja and Anr. vs. Yellappa (dead)

by LRs and Ors. reported as (2004) 6 SCC 415 referred to by learned

counsel for the plaintiff would also not be of any assistance. In the

said case, it has been clarified by the Supreme Court that if granting

of an amendment really subserves the ultimate cause of justice and

avoids further litigation, the same should be allowed. However, every

case has to be examined on its own facts and merits. In the present

case, having regard to the sequence of events narrated above, this

Court is not persuaded by the submission made by learned counsel for

the plaintiff that the present amendment application is bonafide and

ought to be allowed at such a belated stage when the evidence has

already commenced and the cross-examination of the plaintiff has

been partly recorded.

18. Resultantly, the prayer made in the application is declined and

the same is dismissed.

(HIMA KOHLI) JUDGE APRIL 16, 2015 rkb/sk