Delhi High Court
Satish Yadav vs Bhagwan Singh & Ors on 6 December, 2019
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 6th December, 2019
+ CM(M) 533/2017 & CM APPL. 18142/2017
SATISH YADAV ..... Petitioner
Through: Mr. Vivek Kumar Chaudhary & Mr.
Mayank Goel, Advocates (M-
9810189487)
versus
BHAGWAN SINGH & ORS ..... Respondents
Through: Ms. Surinder Kaur, Advocate for R-1
and 2
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J(Oral)
1. The present petition has been filed challenging the impugned order
dated 20th January, 2017, which has rejected the Petitioner's/Plaintiff's
(hereinafter, "Plaintiff") application for amendment under Order VI Rule
17 CPC. The background is that a suit for specific performance, was filed
by Mr. Satish Yadav in respect of agreement to sell dated 22nd March, 2010
against Mr. Bhagwan Singh and Mr. Ashish Kumar - Defendants No. 1 and
2. During the pendency of the suit, the Defendants revealed that property
bearing Khasra no.29, House No.17, village Sahipur, Shalimar Bagh, Delhi-
110088 has been sold to one Ms. Geeta. The Plaintiff then took steps to
implead the said Ms. Geeta - the subsequent purchaser as Defendant No.3,
and amendment was sought. The said amendment was allowed, however, at
the stage of framing of issues, it was realised that the prayer for cancellation
of the sale deed in favour of Ms. Geeta was inadvertently left out from the
amended plaint. The said prayer was sought to be added by filing an
application under Order VI Rule 17 CPC. Since the same was an inadvertent
error, the Plaintiff sought amendment of the prayer clause. However, since
by then, the issues had been framed and the evidence had commenced, the
Trial Court has rejected the application in view of the proviso to Order 6
Rule 17 CPC.
2. Ld. counsel for the Plaintiff submits that it was only due to his error
that the relief could not be added in the plaint. Accordingly, it is submitted
that the Plaintiff be permitted to add the relief of cancellation of the sale
deed.
3. The Court has perused the application. The only amendment which is
being sought to be added is in prayer clause (b), where the Plaintiff is
seeking to add the following prayer:
"pass a decree for cancelling the sale deed bearing
registration NO. 14986 in additional book No. 1,
volume No. 4473, on page 186 to 194 dated 24.11.12
executed by defendant no. 1 in favour of defendant no.
3"
4. Considering the above-mentioned factual background, the amendment
which has been sought is clearly within the scope of the earlier amended
plaint, where challenge has been raised to the sale to Ms. Geeta. The
amendment was made pursuant to the disclosure made in the written
statement. Though the proviso to Order 6 Rule 17 is a general rule that
amendments in pleadings ought not to be permitted once trial has
commenced, the same is not an inflexible rule. The same has been observed
by the Hon'ble Supreme Court in Chander Kanta Bansal v. Rajinder Singh
Anand, (2008) 5 SCC 117, as follows:
"13. The entire object of the said amendment is to stall
filing of applications for amending a pleading
subsequent to the commencement of trial, to avoid
surprises and the parties had sufficient knowledge of the
other's case. It also helps in checking the delays in filing
the applications. Once, the trial commences on the
known pleas, it will be very difficult for any side to
reconcile. In spite of the same, an exception is made in
the newly inserted proviso where it is shown that in spite
of due diligence, he could not raise a plea, it is for the
court to consider the same. Therefore, it is not a
complete bar nor shuts out entertaining of any later
application. As stated earlier, the reason for adding
proviso is to curtail delay and expedite hearing of
cases."
5. There has been exercise of due diligence by the Plaintiff, as
amendment of the Plaint was sought to implead the third party purchaser, in
view of the disclosure made in the written statement. This amendment has
already been allowed. The omission to seek the prayer for
declaration/cancellation of the sale deed was at best an omission by the
counsel for which the litigant cannot be blamed as the same does not require
any new facts to be established. The relief is to be considered on the basis of
the pleadings and documents on record.
6. Accordingly, the above prayer is permitted to be added subject to
payment of Rs.20,000/- as costs to the Plaintiffs. Let the amended plaint be
taken on record. The consequential issue be framed by the Trial Court. The
trial to continue in the matter. The costs shall be paid on or before the next
date before the Trial Court.
7. Petition and all pending applications are disposed of.
PRATHIBA M. SINGH
DECEMBER 06, 2019
Rahul
