Shivraj Gupta & Anr. vs The Registrar Of Societies & Ors
2019 Latest Caselaw 1073 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI
+         CM (M) 119/2019 & CM APPL.3605/2019

                                   Judgment reserved on : 31.01.2019
                                        Date of decision : 18.02.2019

      SHIVRAJ GUPTA & ANR.                                ..... Petitioner
                    Through:              Mr. Jayant Mehta, Advocate
                    versus

    THE REGISTRAR OF SOCIETIES & ORS ...... Respondent
                  Through: Mr. Naushad Ahamad Khan,
                           ASC with Md. Tauheed Arshi,
                           Adv. for GNCTD.
                           Ms. Diya Kapur, Ms. Sugandha
                           Batra, Advs. For R-2.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA

                                   JUDGMENT

ANU MALHOTRA, J.

1. The petitioner vide the present petition has assailed the impugned order dated 24.12.2018 of the learned trial Court of the ADJ-01, Central, THC, New Delhi in M-499/2017 vide which an application under Order VI Rule 17 of the CPC filed by the petitioners herein as the plaintiffs of the said suit seeking an amendment in the plaint to value the reliefs their prayer clause a to f which read to the effect:

a. Pass a decree of declaration that the amendment to Clause 2 of the Rules and Regulations of the Defendant No.2 Society, as set out in the Plaint, is illegal against the basic fabric of the constitution of the Defendant No.2 Society, and, as such, of no legal effect;

b. Consequently, pass a decree setting aside all appointments and/or inductions of Defendant Nos.4 to 13 made pursuant to the amended Clause 2 of the Rules & Regulations of the Defendant No.2 Society by Defendant No.3 and/or the Defendant No.2 Society;

c. Pass a decree of declaration that the Plaintiff No. 1 is and continues to be the Founder member of the Defendant No.2 Society in accordance with the Rules & Regulations of the Defendant No.2 Society; d. Pass a decree of mandatory injunction directing the Defendant No. 2 Society to record the name of the Plaintiff No. 2 as the Founder Member of the Defendant No. 2 Society in accordance with the Rules & Regulations of the Defendant No. 2 Society, in particular Clause 2 of the Rules & Regulations, as amended by the resolution passed in the Special General Meeting of the Defendant No. 2 Society held on 15-12-1979; e. Pass an order and/or direction to Defendant No. 1 to conduct a special audit into the affairs and accounts of the Defendant No. 2 Society by an independent agency, preferably through the Office of the Comptroller & Auditor General of India or any other reputed agency; f. Pass appropriate order(s) for investigation into the dealings and/or business relations and the entities where the Defendant No. 3 or his immediate relatives/friends and associations who are members of the Defendant No. 2 Society having any direct or indirect interest."

was declined. The contesting respondent no.2 as the caveator of Caveat 77/2019 has put in appearance and has been heard.

2. The suit instituted by the plaintiffs i.e. the petitioners herein initially before this Court was only one seeking declaration, permanent injunction and mandatory injunction with virtually all reliefs against the defendant no.2 and members of the defendant no.2 arrayed as

members whose appointment and inductions were made to the respondent no.2.

3. As reflected vide the impugned order the reliefs prayed through the plaint were valued by the plaintiffs vide para-38 of the plaint which reads to the effect:

"That the present suit for the purpose of jurisdiction has been valued at Rs.20,00,000/- for the relief of declaration as in prayer (a) it has been valued at Rs.20,05,000/- on which requisite court fee of Rs. has been affixed. For the relief of declaration as per prayer (b) and (c) the suit has been valued at Rs.200 each and court fee of Rs.20 has been affixed. For the purpose of relief as prayed in prayers

(d) to (f) the suit has been valued at Rs. 130 and a court fee of Rs.13/- has been paid."

4. The defendant no.1 arrayed to the suit is the Registrar of Societies and arrayed on record apparently as a proforma party. On behalf of the defendant nos.2, 3, 6 & 13 a joint written statement was submitted averring through the response to para-38 of the plaint to the effect:

"In reply to paragraph 38 of the plaint, it is submitted that appropriate Court fee has not been paid as submitted in the Preliminary Objections and till the appropriate Court fee is paid, the suit of the plaintiffs cannot be proceeded with."

thus submitting that a proper court fee had not been paid as averred in the preliminary objections of the said written statement vide which preliminary objection at serial no.5 of the preliminary objection it was submitted to the effect:

"That the plaintiffs have not paid the proper and requisite Court fee. The plaintiffs have claimed six different reliefs in the plaint and plaintiffs are liable to pay separate court fee on each of the reliefs in accordance with the provisions of Court Fee Act. Suit of the plaintiffs cannot be proceeded till requisite Court fee is paid."

5. Vide the application under Order VI Rule 17 of the CPC, the plaintiffs of the said suit i.e. the petitioners herein sought an amendment in prayer clause-38 of the plaint and sought that the said paragraph may read as under:

"38........That the present Suit for the purpose of jurisdiction has been valued at Rs.2,10,00,000/- for the relief of declaration as in prayer (a) it has been valued at Rs.35,00,000/- on which requisite court fee of Rs.35,000/- has been affixed. For the relief of declaration as per prayer (b) and (c) the Suit has been valued at Rs.35,00,000/- each and court fee of Rs.70,000/- has been affixed. For the purpose of relief as prayed in prayers (d) to (f) the suit has been valued at Rs.35.00,000/- each and a Court fee of Rs. 1,05,000/- has been paid."

6. It was thus submitted by the petitioners i.e. the plaintiffs of the said suit that the said amendment was necessary for the just and proper determination of the real controversy between the parties and that the proposed amendment did not in any manner alter the nature of the suit nor did it put the defendant to any hardship and it would cause no prejudice to the defendant if the said amendments were allowed submitting further to the effect that it was necessary for the plaintiffs to remove the objections that had been raised by the defendants with regard to the valuation to avoid any dispute at any later stage.

7. Vide the reply that was submitted on behalf of the defendant no.2 arrayed as the respondent no.2 to the present petition, it was submitted that the prayer made by the plaintiffs i.e. the petitioners herein could not be allowed in view of the trial having already commenced and the pleadings being completed and the issues having been framed and the plaintiffs having filed their evidence vide an affidavit and that the plaintiffs i.e. the petitioners herein had failed to demonstrate that despite due diligence they could not seek the amendment sought in the application under reply before the commencement of trial and that there was nothing that had been stated in the application by the plaintiffs i.e. the petitioners herein as to why they did not raise the issue of valuation on an earlier occasion before the commencement of trial despite objection raised on behalf of the respondent no.2 through its written statement in the year 2008 itself and the application had now been filed in the year 2017 without explaining as to why the same could not be filed earlier and that the plaintiffs i.e. the petitioners herein were attempting to cure defects in the plaint which had been raised and pointed out by the defendant no.2 through its written statement.

8. Inter alia the defendants submitted that the amendment of the plaint relating to the valuation is not an amendment which is necessary for the purpose of determining the real questions in controversy between the parties as contemplated under Order VI Rule 17 of the CPC and thus the application ought to be dismissed in as much as the suit related to the membership and rules and regulations of the defendant no.2/Society.

9. Reliance was inter alia placed on behalf of the respondents before the learned trial Court on the verdict of the Hon'ble Supreme Court in Revajeetu Builders & Developers Vs. Narayanaswamy & Sons and ORs. 2009 10 SCC 84 wherein vide para-58 thereof it was held to the effect that "Whether such amendment is necessary for the determination of the real question in controversy, if that condition is not satisfied, the amendment cannot be allowed."

10. During the course of submissions that have been made on behalf of the defendant nos.2, 4, 5, 6, 7, 8, 9, 11, 12 & 13 before the learned trial Court it was sought to be contended that the amendment prayed by the petitioners ought not to be granted in view of the trial having commenced in as much as issues were framed on 03.10.2013 and thereafter the plaintiffs had filed the affidavit in evidence though the cross examination had yet to commence in relation thereto and that thus the trial having commenced coupled with the factum that the amendment by enhancement of the Court fee and valuation of the reliefs, if allowed would result into a change of jurisdiction and that it was necessary for the petitioners herein to show that they had exercised due diligence, which they had not.

11. It is indicated vide the impugned order dated 24.12.2018 that issues in the matter were framed on 03.10.2013 thereafter, the suit of the plaintiffs i.e. the petitioners herein, was dismissed in default on 23.08.2017 due to non-appearance of the plaintiffs and was thereafter restored vide order dated 18.04.2018. Vide the impugned order it has been observed to the effect:

"Record perused. On perusal of record, it is revealed that issues in this case were framed on 03.10.2013 and thereafter, suit of the plaintiffs was proceeded dismissed in default on 23.08.2017 due to non appearance of the plaintiffs. It is further revealed that the present application does not mention the contents of the dismissal of the suit and framing of issues and filing of affidavit of evidence by the plaintiff, therefore, it shows that the plaintiff has concealed the material facts of framing of issues and commencement of trial. It is further revealed, that the present suit was restored vide order dated 18.04.2018 by the Ld. Predecessor of this court and in that application also the plaintiff has not raised the question of valuation court fee. There was occasion for the plaintiffs to raise question of valuation of the court fee when their application under order IX rule 9 CPC was allowed by the Ld. Predecessor of this court and it shows that despite due diligence the plaintiffs did not raise the matter before the commencement of trial."

12. Through the present petition and submissions made on behalf of the petitioners it has been submitted that the learned trial Court had failed to take into account that deficient Court fee can be made good at any stage of the proceedings including the appellate stage which is continuation of the proceedings and that the amendment prayed for by the petitioners herein would not in any manner alter the basic nature of the suit and that the amendment sought would not in any manner cause any injustice to the defendants i.e. the respondents and was rather necessary for the determination of the real question in controversy between the parties and ought not to have been rejected in as much as no new facts were being sought to be put by the plaintiffs i.e. the petitioners herein.

13. It has further been submitted by the petitioners that merely because the aspect of the Court fee was not raised in the application seeking restoration of the suit dismissed in default and merely the factum that the contents of dismissal in default of the suit had not been mentioned in the application under Order VI Rule 17 of the CPC, the same cannot be termed to be any concealment of facts in view of the factum that the suit stood restored.

14. During the course of submissions that have been made on behalf of the petitioners reliance was placed on the verdict of the Hon'ble Supreme Court in Mount Mary Enterprises Vs. Jivratna Medi Treat Private Limited (2015) 4 SCC 182 to contend that even if the amendment sought to the plaint would result in the transfer of the suit due to change of pecuniary jurisdiction, the same is not a ground to deny the amendment and reliance was placed on behalf of the petitioners on the observations in para-7, 8, 9 & 10 of the said verdict which read to the effect:

"7. In our opinion, as per the provisions of Order 6 Rule 17 of the Civil Procedure Code, the amendment application should be normally granted unless by virtue of the amendment nature of the suit is changed or some prejudice is caused to the defendant. In the instant case, the nature of the suit was not to be changed by virtue of granting the amendment application because the suit was for specific performance and initially the property had been valued at Rs 13,50,000 but as the market value of the property was actually Rs 1,20,00,000, the appellant-plaintiff had submitted an application for amendment so as to give the correct value of the suit property in the plaint.

8. It is also pertinent to note that the defendant had made an averment in Para 30 of the written statement filed in Suit No. 1955 of 2010 that the plaintiff had undervalued the subject- matter of the suit. It had been further submitted in the written statement that the market value of the suit property was much higher than Rs 14 lakhs. The defendant had paid Rs 13.5 lakhs for the said premises in the year 2002 when the said premises had been occupied by a tenant bank. Even according to the defendant, value of the suit property had been undervalued by the plaintiff in the plaint. If in pursuance of the averment made in the written statement the plaintiff wanted to amend the plaint so as to incorporate correct market value of the suit property, the defendant could not have objected to the amendment application whereby the plaintiff wanted to incorporate correct value of the suit property in the plaint by way of an amendment. The other contention that the valuation had already been settled cannot also be appreciated since the High Court has held that the said issue was yet to be decided by the trial court.

9. The main reason assigned by the trial court for rejection of the amendment application was that upon enhancement of the valuation of the suit property, the suit was to be transferred to the High Court on its original side. In our view, that is not a reason for which the amendment application should have been rejected.

10. With regard to the amendment of the plaint, the following observation has been made by this Court in North Eastern Railway Admn. v. Bhagwan Das [(2008) 8 SCC 511] : (SCC p. 517, para 16)

"16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363 : (1957) 1

SCR 595] which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs."

15. Reliance was also placed on behalf of the petitioners on the verdict of the Hon'ble Supreme Court in Lakha Ram Sharma Vs. Balar Marketing Private Limited (2008) 17 SCC 671 to contend that the merits or demerits of a claim sought to be made through an amendment and whether it is bonafide or not cannot be determined at the stage of consideration of the application under Ordre VI Rule 17 of the CPC and for this reason, an amendment sought cannot be declined. Reference was thus made to observations in the said verdict to the effect:

"3. .......The appellant applied for an amendment of the suit. The application for amendment was granted by the trial court. The High Court, however, by the impugned order, has disallowed only one portion of the amendment, namely, where the appellant sought to raise the valuation of the suit from Rs 1,00,000 (Rupees one lakh) to Rs 10,00,000 (Rupees ten lakhs). The High Court has held that such a claim is arbitrary and not based on any cogent material. The High Court has held that the application to raise valuation is not bona fide as it is done with the purpose of taking the suit out of the jurisdiction of that court.

4. It is settled law that while considering whether the amendment is to be granted or not, the court does not go into

the merits of the matter and decide whether or not the claim made therein is bona fide or not. That is a question which can only be decided at the trial of the suit. It is also settled law that merely because an amendment may take the suit out of the jurisdiction of that court is no ground for refusing that amendment. We, therefore, do not find any justifiable reason on which the High Court has refused this amendment. Accordingly, the impugned order is set aside and that of the trial court is restored. We, however, clarify that as the appellant has now raised the claim from Rs 1 lakh to Rs 10 lakhs, the trial court will determine, whether or not court fees are correctly paid."

16. Reliance was also placed on behalf of the petitioners on the majority judgment of the Hon'ble Full Bench of this Court in Subhashini Malik Vs. SK Gandhi & Ors. 2016 SCC Online Del 5058 with specific reference to the observations in para-171 of the said verdict which reads to the effect:

"Almost identical question had arisen before the Supreme Court in Lakha Ram Sharma v. Balar Marketing Private Limited (2008) 17 SCC 671 and it was held that it is settled law that merely because an amendment may take the suit out of jurisdiction of the court is no ground for refusing the amendment. In fact, a reading of the ratio would show that even the converse was upheld."

17. Reliance was also placed on behalf of the petitioners on the verdict of this Court in Arjun Chowdhry Vs. Capital Land Builders & Ors. 2018 SCC OnLine Del 10103 with specific reference to the observations in paras 7 & 12 of the said verdict which read to the effect:

"7. Issue No. 8 was specifically in relation to the objections raised on behalf of the defendant No. 2, i.e, the present petitioner qua the aspect of the suit having not been

properly valued for the purpose of court fees and the jurisdiction and whether the appropriate court fee had not been paid by the plaintiff and that the objection raised by the defendant No. 2 i.e. the present petitioner herein was to the effect that the suit had been under valued by the plaintiff for the purpose of the Court fee and the jurisdiction and that taking the said aspect into account and the enhancement of the market value of the suit property, the respondent No. 1 i.e. the plaintiff of the suit in question had sought the amendment as prayed before the learned Trial Court which was so granted vide impugned order dated 2.6.2018.

12. On a consideration of the rival submissions on the verdicts relied upon on behalf of either side specifically in view of the verdicts of the Supreme Court in Mount Mary Enterprises v. Jivratna Medi Treat Private Limited (Supra), Lakha Ram Sharma v. Balar Marketing Private Limited (Supra) and Subhashini Malikv. S.K. Gandhi (Supra) and also the factum that the amendment sought by the plaintiff does not in any manner prejudice the defendant No. 2 i.e., the present petitioner in any manner and does not change the nature of the suit also in any manner and taking into account the factum that defendant No. 2 has himself raised the issue in relation to the aspect of under valuation of the suit property and for the purpose of the court fees and jurisdiction qua which issue no. 8 was framed at the time of framing of the issues coupled with the factum that virtually the trial has yet to commence in as much as the testimonies of the witnesses are yet to be led, it is held that there is no merit in the prayer made by the petitioner seeking the setting aside of the impugned order dated.2.6.2018 qua the amendment sought by the respondent No. 1 in relation to the para 19 of the plaint."

18. Reliance was also placed on behalf of the petitioners on the factum that the said verdict of this Court having been assailed in the Hon'ble Supreme Court vide Petition for Special Leave to Appeal (C)

No(s).33861-33862/2018, the Special Leave to Appeals were dismissed with it having been observed to the effect:

"Having heard learned counsel appearing on behalf of the petitioners, we are not inclined to interfere with the order of the High Court, directing that an application for amendment of the plaint under Order 6 Rule 17 of the Code of Civil Procedure be allowed. The special leave petitions are accordingly dismissed.

However, we clarify that if there is an issue of limitation which the petitioners seek to raise, it is kept open to be urged before the trial court.

It would be open to the petitioners to seek an expeditious hearing of the suit or, as the case may be, of the application under Order 39, Rule 4 of the Code of Civil Procedure."

19. It is essential to observe that in view of the submissions of the defendant nos.2, 3, 6 & 13 through the written statements undoubtedly the aspect of the Court fee paid by the plaintiffs i.e. the petitioners herein is under cloud and the Court fees paid in relation to the suit for declaration, permanent and mandatory injunction would necessarily relate back to the valuation of the reliefs sought.

20. The proceedings dated 29.03.2016 after transfer of the suit bearing CS (OS) 73/2008 as was originally numbered and instituted in this Court vide order dated 03.02.2016 indicate that on 29.03.2016 it was observed that a submission was made on behalf of the plaintiffs i.e. the petitioners herein that the evidence of the plaintiffs was yet to commence and a prayer had been made on behalf of the defendant no.2 that a preliminary issue was pending adjudication.

21. On behalf of the respondent no.2 whose contention as per record of the trial Court had been supported by the other respondents,

one of the issues i.e. issue no.11 was sought to be treated as a preliminary issue which is to the effect "Whether the suit of the plaintiffs is barred by limitation? (OPD)."

22. Vide order dated 03.02.2016 it was observed that the issues were framed on 03.10.2013 which are to the effect:

(i) Whether the plaintiff no.1, Mr. Shivraj Gupta was and continues to be a Founder Member of the Child Education Society, defendant No.2? If not, whether plaintiff No.1, Mr. Shivraj Gupta is entitled to be declared as the Founder Member of the Child Education Society, defendant No.2 being a legal representative of late Mr. Charat Ram? (OPP)

(ii) Whether late Mr. M.L. Sodhani was a Founder Member of the Child Education Society, defendant No.2? If so, whether late Mr. M.L. Sodhani was entitled to declare plaintiff No.2 as his legal representative to succeed him as Founder Member of the Child Education Society, Defendant No.2? (OPP)

(iii) Whether the plaintiffs can be declared as Founder Member of the Child Education Society, defendant No.2. on the basis of documents executed by late Mr. Charat Ram and late Mr. M.L. Sodhani? (OPP)

(iv) Whether clause 2 of Rules and Regulations of defendant no.2 society has been validly amended? If yes, on what dates and to what extent? (OPP)

(v) Whether the induction of defendant No.4 to 13 in the Child Education Society, defendant No.2 was validly and property made in accordance with the Rules and Regulations of the Child Education Society, defendant No.2? (OPP)

(vi) Whether any special audit or investigation is required into the affairs of the Child Education Society, defendant No.2, as claimed by the plaintiffs? (OPP)

(vii) Whether for investigation is required to be made into the dealings and/or business relations and the entities where the defendant No.3 or his immediate relatives/friends and associations who are members of the defendant No.2 Society are having any direct or indirect interest? (OPP)

(viii) Whether the plaintiffs have paid proper and appropriate court fees? (OPP)

(ix) Whether the plaintiffs do not have any locus standi to file the present suit as stated in the preliminary objections of the written statement? (OPP)

which indicate that issue no.(viii) was framed to the effect that "Whether the plaintiffs have paid proper and appropriate court fees? (OPP)".

23. Vide the said order dated 03.10.2013 a Local Commissioner had been appointed for recording of evidence with it having been directed that the plaintiff would file the affidavits towards examination in chief of the witnesses within a period of eight weeks and that after the conclusion of the plaintiff evidence, the defendant would similarly lead the evidence before the Local Commissioner, whereafter as indicated vide the impugned order, the suit was dismissed in default on 23.08.2017 and restored on 18.04.2018.

24. Reliance was placed on behalf of the respondent no.2 on the verdict of the Hon'ble Supreme Court in Salem Advocate Bar Association, T.N. Vs. Union of India (2005) 6 SCC 344 with specific reference to observations in para-26 of the said verdict which read to the effect:

"26. Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision."

to contend that there was nothing in the instant case to show that in spite of due diligence, the petitioners herein could not have sought an amendment before the commencement of trial and it was thus submitted that the application seeking amendment was frivolous and with intention to delay the trial.

25. Reliance was also placed on behalf of the respondent no.2 on the verdict of this Court in Mohd. Saleem and Ors. Vs. Naseer Ahmed 2006 SCC OnLine Del 1199 with specific reference to observations in para-7, 8 & 14 thereof which read to the effect:

"7. In my considered view, the stage of the trial only begins after the framing of issues when the directions are passed and a date fixed for filing of affidavits of evidence. In fact, a learned single Judge of this Court in Mrs. Suneel Sodhi v. Mr. M. L. Sodhi, AIR 2004 Delhi 99 while considering this plea has taken the dates of trial fixed as the commencement of the trial.

8. I am fortified in this view by the judgment of learned single Judge of the Kerala High Court in Neelakandan Nair v. Parameswara Karup, 2008 (2) KLT 943. It has been held in the said judgment that the expression 'trial' has been employed in the proviso to Rule 17 of Order 6 of the said Code only in what the Supreme Court described as the narrow sense of examination of witnesses, production of documents in evidence and all stage subsequent to the same. After issues are settled under Order 14 of the said Code, an opportunity is

given to the parties to take what is only prescribed as pre-trial and then only the suit is listed for trial.

14. The conspectus of the aforesaid pronouncements and definitions as to when a commencement of trial takes place leaves no manner of doubt that it refers to a stage after framing of issues and after the hiatus period thereafter where steps have to be taken to start the trial by examination of witnesses whether in the form of filing of affidavit or otherwise."

in as much as the affidavit of the plaintiff witness had been submitted, the trial had commenced, though it was observed therein vide para-15 to the effect that it could not be said that on framing of issues itself, the trial had commenced.

26. Reliance was also placed on behalf of the respondent no.2 on the verdict of the Hon'ble Supreme Court in Baldev Singh and Others Vs. Manohar Singh and Another (2006) 6 SCC 498 with specific reference to observations in paras-9 & 17 which read to the effect:

"9. Keeping this principle in mind, let us now consider the provisions relating to amendment of pleadings. Order 6 Rule 17 of the Code of Civil Procedure deals with amendment of pleadings which provides that the Court may at any stage of 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. A bare perusal of this provision, it is pellucid that Order 6 Rule 17 of the Code of Civil Procedure consists of two parts. The first part is that the Court may at any stage of the proceedings allow either party to amend his pleadings and the second part is that such amendment shall be made for the purpose of determining the real controversies raised between the parties. Therefore, in view of the provisions made under Order 6 Rule 17 of the CPC

it cannot be doubted that wide power and unfettered discretion has been conferred on the Court to allow amendment of the pleadings to a party in such manner and on such terms as it appears to the Court just and proper. While dealing with the prayer for amendment, it would also be necessary to keep in mind that the Court shall allow amendment of pleadings if it finds that delay in disposal of Suit can be avoided and that the suit can be disposed of expeditiously. By the Code of Civil Procedure (Amendment) Act, 2002 a proviso has been added to Order 6 Rule 17 which restricts the Courts from permitting an amendment to be allowed in the pleadings of either of the parties, if at the time of filing an application for amendment, the trial has already commenced. However, Court may allow amendment if it is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. So far as proviso to Order 6 Rule 17 of the Code of Civil Procedure is concerned, we shall deal with it later.

17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted herein before, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings."

27. At the outset, on a consideration of the rival submissions made on behalf of either side, this Court is of the considered view that the amendment sought by the plaintiffs i.e. the petitioners herein shall not in any manner substantially affect the nature of the contentions that have been raised through the plaint and shall not alter the nature of the proceedings in any manner.

28. As regards the aspect that the proceedings of the suit through the amendment sought by enhancement of the valuation of the suit for the purpose of valuation of Court fee, taking into account the aspect that the said aspect is an issue in relation to the determination of the Court fee paid by the petitioners as plaintiffs vide issue no.8 framed on 03.10.2013, though the said issue had been framed only in relation to the Court fee payable nevertheless the determination of the appropriate Court fee to be paid on the basis of valuation of the reliefs sought by the plaintiffs i.e. the petitioners herein is necessary and essential for the just adjudication of the lis.

29. As regards the aspect that the amendment of the valuation and Court fees sought would take the suit out of the jurisdiction of the District Courts, in view of the verdict of the Hon'ble Supreme Court in Lakha Ram Sharma Vs. Balar Marketing Private Limited (supra) and majority judgment of the Hon'ble Full Bench of this Court in Subhashini Malik Vs. SK Gandhi & Ors (supra) and the verdict of this Court in Arjun Chowdhry Vs. Capital Land Builders & Ors. (supra), the same does not suffice to negate the prayer made by the plaintiffs i.e. the petitioners herein seeking the amendment made in the plaint.

30. As regards the observations of the learned trial Court that there have been a concealment of facts in relation to the aspect of the dismissal of the suit filed by the plaintiffs and that the prayer had not been made earlier, undoubtedly the suit having been restored now to its original stage, the aspect of the suit having been dismissed in default having not been mentioned in the application under Order VI Rule 17 of the CPC does not amount to any concealment of facts in view of such factum being part of the record of the lis itself.

31. As regards the aspect of the observations of the learned trial Court to the effect that the trial had already commenced in the instant case in as much as the affidavit of the witness had been taken on record, it is essential to observe that as per the verdict of the Hon'ble Supreme Court in Baldev Singh and Others Vs. Manohar Singh and Another (supra) relied upon on behalf of the respondent no.2 itself, the observations in para-17 thereof are categorical in relation to the aspect of the commencement of the trial wherein it has been observed to the effect "That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments."

32. Undoubtedly, the respondent no.2 has submitted that in terms of the verdict of this Court in Mohd. Saleem and Ors. Vs. Naseer Ahmed (supra) in terms of para-14 already adverted to hereinabove elsewhere, the trial has commenced in view of the submission of the affidavit of the plaintiffs' witness, in relation to which, the petitioners

place reliance on the verdict of this Court in Arjun Chowdhry (supra) to the effect that the amendment sought therein had been permitted in a case where the issues had been framed and the trial had virtually yet to commence in as much as the testimonies of the witnesses were yet to be led, taking into account the factum that the word 'trial' as laid down by the Hon'ble Supreme Court in Indian Bank Vs. Maharashtra State Co-operative Marketing Federation Ltd. (1998) 5 SCC 69 means only the final hearing of a petition consisting of examination of witnesses, filing of documents and addressing of arguments and that as defined in Black's Law Dictionary (7 th Edition) at page 1510, the word 'trial' means "A formal judicial examination of evidence and determination of legal claims in an adversary proceeding." and the dictionary meaning of the word 'trial' in Ballentine's Law Dictionary (2nd Edition) is to the effect: "An examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause, for the purpose of determining such issue. When a Court hears and determines any issue of fact or the purpose of determining the right of the parties, it may be considered a trial."

and the definition of commencement of trial in Words and Phrases, Volume 7B, Collate Commodore is to the effect:

"The beginning of an opening statement, or, if there is no opening statement, the administering of the oath of affirmation to the first witness, or the introduction of any evidence, is the 'commencement of trial' within statutory provision allowing a dismissal by plaintiff by written request to the clerk at any time before the actual 'commencement of trial'."

It cannot be overlooked that in the instant case though the affidavit of the plaintiff's witnesses has been submitted on the record of the trial Court, the witnesses of the plaintiffs have yet to step into the witness box and have yet to tender their affidavit on oath and thus the trial is virtually yet to commence as observed in Arujun Chowdhary (supra). As regards the aspect of the trial having commenced on the filing of the affidavit as per observations in Mohd. Saleem and Ors. Vs. Naseer Ahmed (supra) in view of the observations of the Hon'ble Supreme Court in Baldev Singh and Others Vs. Manohar Singh and Another (supra) which specifically lay down that Order VI Rule 17 of the CPC per se confers wide power and unfettered discretion to the Court to allow an amendment of the pleadings at any stage of the proceedings, if the Court finds that such amendment is necessary for the purpose of determining the real question in controversy between the parties, taking the same into account, the prayer made by the petitioners seeking the setting aside of the impugned order dated 24.12.2018 in M-499/2017 pending before the learned trial Court of the ADJ-01, Central, THC, New Delhi is allowed and the amendment sought to be made by the plaintiffs i.e. the petitioners herein are allowed subject to payment of composite costs of Rs.50,000/- by the petitioners to the respondents.

33. The petition and the accompanying application CM APPL.3605/2019 are disposed of accordingly.

ANU MALHOTRA, J.

FEBRUARY 18, 2019/vm