Delhi High Court
Suchita Kaur vs Vipin Kapoor on 3 March, 2017
$~A-1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 03.03.2017
+ CM(M) 1216/2016
SUCHITA KAUR ..... Petitioner
Through Mr.Jagjit Singh, Mr.Preet Singh
Mr.Sukhdev Singh amd Ms.Kiran Kaushik,
Advocates
versus
VIPIN KAPOOR ..... Respondent
Through Mr.R.C.Tiwari and Mr.Subhash
Chand, Advocates alongwith respondent in person
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (Oral)
CM No.44019/2016 (exemption)
Exemption allowed, subject to all just exceptions.
CM No.44020/2016 (delay)
For the reasons stated in the application the delay in refilling the
petition is condoned. Application is allowed.
CM(M) 1216/2016
1. By the present petition under Article 227 of the Constitution of India
the petitioner seeks to impugn the order dated 2.5.2016 by which an
CM(M)1216/2016 Page 1
application filed by the respondent/defendant to amend the written statement
was only partially allowed.
2. The respondent had filed a suit for permanent and mandatory
injunction and damages. The parties had entered into a collaboration
agreement whereby the petitioner had agreed to construct the building. In
return, it is stated that the petitioner was entitled to a particular floor of the
building. The stand of the respondent in the plaint is that the petitioner has
deliberately and intentionally not constructed the building as per sanctioned
plan. It is further stated that there are various deficiencies in the construction
which are stated in the plaint. It is further stated that the respondent has
wrongly handed over possession of the second floor to a prospective buyer.
Based on these allegations the suit seeks a decree of damages of
Rs.19,50,000/-, a decree of mandatory injunction to direct the petitioner to
reconstruct the portions as per sanctioned plan and other connected reliefs
are also sought.
3. The matter was still at the stage of pleadings when the petitioner
moved the present application under Order 6 Rule 17 CPC for amendment
of the written statement. In the written statement various paragraphs are
sought to be added as paragraphs 23 A to 23 F. It is sought to be added that
the second floor has been sold to Mrs.Neenu Arora and the respondent has
now no right title or interest in the same. Other legal pleas are sought to be
raised, namely, that the relief of mandatory injunction claimed is barred by
law, the relief is a discretionary measure and cannot be granted, the
respondent has himself committed breach of agreement by forcing the
petitioner to construct portion of the building contrary to the sanctioned
plan. Other certain factual details are also sought to be added.
CM(M)1216/2016 Page 2
4. The trial court by the impugned order has noted that almost similar
objections have already been taken by the petitioner in the written statement.
It also noted that the petitioner cannot withdraw the admissions. It also noted
that legal pleas can be taken at any stage and hence concluded that
paragraphs 23B, E and F are not necessary. It allowed para 23 A to be added
to the written statement.
5. I have heard learned counsel for the parties. Learned counsel for the
respondent repeated that the pleas which are sought to be raised by the
petitioner are already incorporated in the written statement. He was unable
to point out from the written statement of the petitioner as to which para
incorporates the fact/averments which are sought to be added by means of
amendment application.
6. The legal position regarding amendment of written statement is well
known. Order 6 Rule 17 CPC reads as follows:-
"17. Amendment of Pleadings.- the Court may at any stage
at the proceedings allow either party to alter or amend his
pleadings in such manner and on such terms as may be just,
and all such amendments shall be made as may be necessary
for the purpose of determining the real questions in
controversy between the parties.
Provided that no application for amendment shall be allowed
after the trial has commenced, unless the court comes to the
conclusion that in spite of due diligence, the party could not
have raised the matter before the commencement of trial."
7. To look at accepted principles of amendments, reference may be had
to the judgment of the Supreme Court in the case of 'Revajeetu Builders &
Developers vs. Narayanaswamy & Sons & Ors.', 2009 (13) SCALE 241.
The Hon'ble Supreme Court in para 67 held as follows:-
CM(M)1216/2016 Page 3
"67. On critically analyzing both the English and Indian cases,
some basic principles emerges 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 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."
8. Keeping in view the legal position, in my opinion, the facts which are
stated are only additional facts which do not change the nature of the
defence sought to be raised by the petitioner. The facts are also of legal pleas
which the petitioner seeks to add. The pleas are necessary for the purpose of
determining the real question in issue. The impugned order suffers from
material irregularity by disallowing the part of the amendment on the ground
that the pleas already exist in the written statement of the petitioner or that
there is a withdrawal of admission.
9. There appears to be no withdrawal of admission which has been
pointed out.
10. Accordingly, the petition is allowed. The amendment in the written
statement is allowed, subject to costs of Rs.7,500/-.
CM(M)1216/2016 Page 4
11. Petition stands disposed of. All pending applications, if any, also
stand disposed of.
JAYANT NATH, J
MARCH 03, 2017
n
CM(M)1216/2016 Page 5
