Delhi High Court
Gabriel India Ltd. & Anr vs Arvind Walia on 13 April, 2017
$~A-21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision:13/4/2017
+ CRP 167/2016
GABRIEL INDIA LTD. & ANR ...Petitioner
Through Mr.T.K.A.Padmanabhan, Adv.
Versus
ARVIND WALIA ...Respondent
Through Mr.Aditya Chopra, Adv.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. Present Revision Petition is filed under section 115 of the Code of
Civil Procedure, 1908 seeking to impugn the order dated 31.08.2016 by
which an application filed by the plaintiff/respondent for amendment of the
plaint has been allowed.
2. The respondent joined the services of petitioner No.1 in 1985. He rose
to the rank of Managing Director and served as a Managing Director from
21.5.2008 till his retirement in May 2013. Disputes have arisen between the
parties in respect of the quantum of the superannuation benefits.
3. The respondent thereafter filed a suit for declaration and mandatory
injunction. In the suit he sought a decree of declaration declaring the acts of
the petitioner in retaining/withholding the documents of the respondent to
forestall the superannuation claim of the respondent as illegal. He sought a
decree of mandatory injunction to direct the defendants/petitioner to forward
the documents to defendant No.4/LIC. Other connected reliefs were also
CRP.167/2016 Page 1
sought. Alongwith the plaint the respondent filed an application under Order
2 Rule 2(3) CPC seeking liberty to separately sue for the relief of recovery
of the entire superannuation amount.
4. The trial court vide its order dated 2.6.2016 dismissed the said
application under Order 2 Rule 2(3) CPC.
5. Hence, the respondent has filed the present application under Order 6
Rule 17 CPC seeking to amend the plaint. He seeks by the application to add
reliefs, namely, a decree declaring the superannuation corpus calculated by
petitioner/defendants and deposited with LIC as incorrect, decree of
mandatory injunction directing the defendants to deposit the differential
amount of superannuation corpus of Rs.81,61,161/- and decree of money in
favour of the plaintiff/respondent for correct corpus amount of
Rs.2,44,83,483/- alongwith interest.
6. The trial court allowed the application noting that the plaint can be
amended at any stage if it enables the court to decide the real controversy in
question. It also rejected the contention of the petitioner that the relief
sought is barred by limitation.
7. I have heard learned counsel for the petitioner. There is no merit in
the plea of the petitioner.
8. The principles relating to amendment of pleadings are well settled.
Reference may be had to the judgement of the Supreme Court in the case of
Abdul Rehman & Arn. Vs. Mohd. Ruldu & Ors., (2012) 11 SCC 341. The
Supreme Court held as follows:-
"15. We reiterate that all amendments which are necessary for
the purpose of determining the real questions in controversy
between the parties should be allowed if it does not change the
basic nature of the suit. A change in the nature of relief claimed
CRP.167/2016 Page 2
shall not be considered as a change in the nature of suit and the
power of amendment should be exercised in the larger interests
of doing full and complete justice between the parties."
9. Reference may also be had to the judgement of the Supreme Court in
the case of Revajeetu Builders and Developers vs. Narayanswamy and
Sons and Ors., (2009) 10 SCC 84. The Supreme Court held as follows:-
"67. On critically analyzing both the English and Indian cases,
some basic principles emerge which ought to be taken into
consideration while allowing or rejecting the application for
amendment:
(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 adequate 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.
68. There are some of the important factors which may be kept
in mind while dealing with application filed under Order 6
Rule 17. These are only illustrative and not exhaustive."
10. In the present case the amendment is sought at the initial stage. The
amendment sought do not change the nature of the suit. As rightly noted by
the trial court they are necessary to completely adjudicate the dispute
between the parties.
CRP.167/2016 Page 3
11. On the plea of the petitioner that the prayer sought to be added is
barred by limitation, even a time barred plea can be allowed if the facts so
warrant. However, in the present case even on facts it cannot be said that the
plea sought to be raised is barred by Limitation. Reference may be had to the
judgment of the Supreme Court in Pankaja and another vs. Yellappa (dead)
by LRs and Others (2004) 6 SCC 415 where in paragraph 14 it was held as
under:-
"14. The law in this regard is also quite clear and consistent that
there is no absolute rule that in every case where a relief is
barred because of limitation an amendment should not be
allowed. Discretion in such cases depends on the facts and
circumstances of the case. The jurisdiction to allow or not allow
an amendment being discretionary, the same will have to be
exercised on a judicious evaluation of the facts and
circumstances in which the amendment is sought. If the granting
of an amendment really subserves the ultimate cause of justice
and avoids further litigation the same should be allowed. There
can be no straitjacket formula for allowing or disallowing an
amendment of pleadings. Each case depends on the factual
background of that case."
12. There is no merit in the present petition and the same is dismissed.
Pending applications if any also stand disposed of.
JAYANT NATH, J
APRIL 13, 2017
n
CRP.167/2016 Page 4
