M/S Jiwan Industries Pvt.Ltd vs M/S Anupam Products Ltd. & Others
2015 Latest Caselaw 1662 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(OS) 801/2008

       M/S JIWAN INDUSTRIES PVT.LTD                ..... Plaintiff
                     Through: Mr. G.P. Thareja, Advocate.

                           versus

       M/S ANUPAM PRODUCTS LTD. & OTHERS          ..... Defendants
                    Through: Mr. H.L. Narula, Advocate for
                             defendant No.1.

%                                   Date of Decision: 26th February, 2015

CORAM:
HON'BLE MR. JUSTICE MANMOHAN

                           JUDGMENT

MANMOHAN, J: (Oral)

I.A.5279/2013 in CS(OS) 801/2008 Learned counsel for the plaintiff wishes to withdraw the present application in view of filing of a subsequent application being I.A. 212/2015. I.A. 212/2015 in CS(OS) 801/2008

1. Present application has been filed under Order 6 Rule 17 CPC for amendment of the plaint.

2. In the application, it has been averred that the amendment is being sought so that there remains no confusion in the plaint regarding the array of parties as well as to place on record the plans prepared by Mr. A.K. Gupta in pursuance to an application being allowed by this Court vide order dated 07 th December, 2012.

3. Learned counsel for defendant No.1 vehemently opposes the present application for amendment on the ground that the plaintiff by way of the present application is substituting the plan which had been furnished along with the plaint. He further states that as the evidence has already been recorded with the description of the parties to the present memo of parties, it would not be proper to allow the amendment at this stage.

4. Learned counsel for defendant No.1 also states that if the present amendment application is allowed, it would change the nature of the case. In support of his submissions, he relies upon the judgment of the Supreme Court in M/s. Modi Spinning & Weaving Mills Co. Ltd. & Anr. vs. M/s. Ladha Ram & Co., AIR 1977 SC 680 wherein it has been held as under:-

"8. The High Court on revision affirmed the judgment of the trial Court and said that by means of amendment the defendants wanted to introduce an entirely different case and if such amendments were permitted it would prejudice the other side.

9. The decision of the trial Court is correct. The defendants cannot be allowed to change completely the case made in paragraphs 25 and 26 of the written statement and substitute an entirely different and new case.

10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court."

5. Counsel for the Defendant also relied upon the judgment in Mashyak Grihnirman Sahakari Sanstha Maryadit v. Usman Habib Dhuka &Ors., (201) 9 SCC 485 wherein it has been held as under:-

"7. .....................Prima facie the aforesaid statement made in the amendment petition is not correct.

8. Indisputably, Respondent 1-plaintiff was the office-bearer of the Society at the relevant time and by resolution taken by the Society Respondent 1 was authorised to complete the transaction. Hence, it is incorrect to allege that Respondent 1- plaintiff was not aware about the transaction of 1989. Moreover, before the institution of the suit in the year 2010, the plaintiffs allegedly came to know about the conveyance deed dated 8-2-1989, sometime in the year 2009, but relief was not sought for in the plaint which was filed much later i.e. 14-10- 2010. The High Court has not considered these undisputed facts and passed the impugned order on the general principles of amendment as contained in Order 6 Rule 17 of the Code of Civil Procedure. Hence we do not find any ground for allowing the amendment sought for by the plaintiffs which was not only a belated one but was clearly an afterthought for the obvious purpose to avert the inevitable consequence. The High Court has committed serious error of law in setting aside the order passed by the trial court whereby the amendment sought for was dismissed. The impugned order [Usman Habib Dhuka v. Mashayak Grihnirman Sahakari Santha Maryadit, WP No. 130 of 2012, order dated 14-2-2012 (Bom)] of the High Court cannot be sustained in law."

6. In the present case, as mentioned before, the amendments that have been prayed for are to change the serial numbers of the Defendants in view of deletion of some of the parties so as to alleviate the inconvenience being caused to this Court and to place on record the plan prepared by an architect pursuant to this Court's order.

7. In this Court's opinion while the first portion of the amendment application is innocuous and formal, the second portion of the amendment application would only aid in proper and effective adjudication of the matters in issue without changing the nature of suit at the present stage of the proceedings. The same therefore, cannot be seen as being on the same footing as the abovementioned case relied upon by the counsel for the Defendant.

8. The established law on the issue of amendment of pleadings is expansive and well settled. The Supreme Court in Rameshkumar Agarwal v. Rajmala Exports Pvt. Ltd. And Ors., (2012) 5 SCC 337, in paragraph 11 of the judgment has held,"It is clear that while deciding the application for amendment ordinarily the court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order 6 Rule 17 is to allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts wile deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule... Normally, amendments are allowed to avoid multiplicity of proceedings."

9. Furthermore, the Supreme Court in Revajeetu Builders and Developers v. Narayanaswamy and Sons and Ors, (2009) 10 SCC 84 critically examined a plethora of English and Indian cases and carved out the following illustrative, though not exhaustive, list of some basic principles which ought to be taken into consideration while allowing or rejecting an application for amendment which are:

"(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application."

10. Lastly, the Supreme Court in Rajesh Kumar Aggarwal & Ors. vs. K.K. Modi & Ors., (2006) 4 SCC 385 has also held as under:-

"18. ...............It is settled by a catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court.

19. While considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case."

11. Therefore, in this Court's opinion, the present application does not fall within the ambit of the negative covenants laid down by the judiciary with respect to amendment of pleadings. As illustrated vide the various judgments mentioned above, not only a liberal approach has to be adopted with regard to the amendment application, but the correctness or falsity of the averments in

the amendment application cannot be gone into at this stage.

12. In the present application, plaintiff by the present amendment application primarily wants to change the number of defendants in view of deletion of some of the defendants so that there is proper identification of the parties.

13. Further, by the present amendment application, the plaintiff is only placing on record the plan prepared by an Architect in accordance with this Court's order so that the same is taken into account while passing the decree as according to the plaintiff, the new plan reflects the actual ground level reality.

14. In the opinion of this Court, the present amendment application is neither incorrect nor amounts to substitution or change of the cause of action. It is also not a mala fide application or an attempt to wriggle out of any admission.

15. However, it is clarified that the documents or plans which are already placed on record and evidence that has already been recorded, shall remain on record and if it refers to some of the parties by their old descriptions, it shall be read in conjunction with the memo of parties as it exists today.

16. With the aforesaid clarification, present application is allowed subject to just exceptions and without prejudice to the right of the defendant No.1 to take all pleas and defences in his amended written statement within four weeks, if he so desires.

CS(OS) 801/2008 & I.A. 5904/2013 At this stage, learned counsel for plaintiff states that plaintiff would like to examine one additional witness Mr. A.K. Gupta, who has prepared the new plan in accordance with this Court's order dated 07th December, 2012.

The plaintiff is given liberty to summon the said witness on the next date of hearing.

Since it is the case of defendant No.1 that Mr. A.K. Gupta has not prepared the site plan in accordance with the order dated 07th December, 2012, the defendant is given liberty to cross-examine Mr. A.K. Gupta on this issue.

List the matter before Joint Registrar for recording of evidence on 13 th May, 2015.

MANMOHAN, J FEBRUARY 26, 2015 js