Delhi High Court
Mr. Vijay Gupta vs Mr. Gagninder Kr. Gandhi & Ors. on 4 July, 2022
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 1st June, 2022
Pronounced on: 4th July, 2022
+ CM (M) 1030/2021 & CM APPL. 40806/2021
MR. VIJAY GUPTA ..... Petitioner
Through: Mr. Raman Gandhi, Adv.
versus
MR. GAGNINDER KR. GANDHI & ORS. ..... Respondents
Through: Mr. Manish Makhija, Adv. for
R-1 & 2
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
J U D G M E NT
% 04.07.2022
1. The learned Principal District and Sessions Judge ("the learned
Trial Court", hereinafter) has, vide the impugned order dated 22 nd
October, 2021 in CS DJ 10306/2016 (Vijay Gupta v. Gagninder
Kumar Gandhi & ors), dismissed an application filed by the
petitioner, as the plaintiff in the suit, under Order VI Rule 17 of the
Code of Civil Procedure, 1908 (CPC), seeking to amend the suit.
Facts
2. CS DJ 10306/2016 has been filed by the petitioner, as plaintiff,
against Respondents 1, 2 and 3 as Defendants 1, 2 and 3 therein. The
issue in controversy being the rejection of the petitioner's application
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for amendment of the suit, it is necessary to know, exactly, at the
outset, the case set up by the petitioner, as plaintiff.
The Plaint
3. The present proceedings deal with a property situated at A-148,
Defence Colony, New Delhi-110024 ("the suit property"). The
petitioner averred, in the plaint, that he had, vide sale deeds dated 11th
July, 2001 and 7th August, 2003, purchased the first and second floors,
as well as the terrace of the suit property from Sumitra Devi, the
mother of Respondent 3. The petitioner asserted that, while executing
the aforesaid sale deeds, Sumitra Devi had also executed an
undertaking on 11th July, 2001, wherein she undertook that (i) neither
she, nor her legal heirs, would sell or transfer the ground floor of the
suit property, without giving the petitioner a first option of purchase
and (ii) in the event of sale by Respondent 3 or by her legal heirs of
the ground floor of the suit property to any person other than the
petitioner, the petitioner would have the right and authority to enjoy
the parking space in the rear side on the ground floor of the suit
property as its owner.
4. Sumitra Devi died on 21st April, 2012, intestate, resulting in
Respondent 3, his brother and his seven sisters becoming co-owners,
by succession, of the ground floor of the suit property. The seven
sisters and their brother having relinquished their undivided share in
the ground floor of the suit property, with all rights, title, interest and
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privileges, in favour of Respondent 3, Respondent 3 became the
absolute owner of the ground floor of the suit property.
5. The plaint alleged that, in violation of the undertaking given by
Sumitra Devi on 11th July, 2001, Respondent 3 executed a sale deed,
dated 26th August, 2014, in respect of the suit property, in favour of
Respondents 1 and 2, which included the rear side parking area. The
petitioner asserted, in para 10 of the plaint, that Respondent 3 was
"bound to specify in the sale deed dated 26.08.2014 executed by him
is the owner of the suit property in favour of the defendant No. 1 and 2
that plaintiff is the owner of the parking space on the rear side of the
suit property". Para 11 of the plaint complained that "defendant No. 1
and 2 being not the party to the undertaking dated 11.07.2001
executed in favour of the plaintiff by the then owner of the suit
property who happens to be the mother of the defendant No. 3 are not
allowing the plaintiff to use the parking space in the rear side of the
suit property as the owner". Thus, alleges para 13 of the plaint, "the
legal right of the plaintiff in the rear side of the parking space on the
ground floor of the property to use the same as its owner has been
infringed by the defendant No. 3 which was created on execution of
the undertaking on 11.07.2001 which is enforceable against him being
the legal heir of the executed who is recorded to be bound by the same
and was also aware at the time of closure of the litigations, had acted
against it". Para 15 of the plaint, which sets out the various occasions
when the cause of action, for filing the plaint, arose, asserts, inter alia,
that "the cause of action for filing the present suit arose in favour of
the plaintiff and against the defendants when the defendant No. 3
executed the sale deed dated 26.08.2014 in favour of the defendant
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No. 2 and 3 in respect of the suit property while granting them the
right to utilize the parking space at the ground floor as owner which is
in violation of the undertaking dated 11.07.2001 which conferred
rights on the plaintiff..." Following the aforesaid recitals, the
petitioner prays, in the suit, that the Court be pleased to, inter alia,
"pass a decree of declaration declaring the plaintiff to be the absolute
owner of the rear parking space of the property No. A-148, Defence
Colony, New Delhi-24 as owner to the exclusion of the defendant No.
1 and 2".
6. It is clear, therefore, that the petitioner was, predicated on the
undertaking dated 11th July, 2001 allegedly executed by Sumitra Devi,
claiming, in the plaint, right over the rear parking space in the suit
property as its owner. The prayer in the suit also sought a declaration
of ownership of the petitioner in respect of the rear parking space of
the suit property.
Written Statement
7. Respondent 3 did not choose to contest the suit, apparently
because he had already executed sale deeds in favour of Respondents
1 and 2.
8. Respondents 1 and 2, in their written statement filed in response
to the suit, alleged the purported undertaking dated 11th July, 2001,
executed by Sumitra Devi, to be a fabricated and forged document. It
was alleged that the said undertaking had also been relied upon, by the
petitioner against Sumitra Devi in CS (OS) 940/2010 (Vijay Gupta v.
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Sumitra Devi), which was withdrawn by the petitioner on his coming
to know that the fraud would be unearthed. Para 13 of the written
statement asserted that, even if it were admitted to be a genuine
document, the alleged undertaking dated 11th July, 2001 did not create
any rights in favour of the petitioner, who had "no right, title or
interest in the rear side parking of the ground floor of the said
property".
Application under Order VI Rule 17, CPC
9. Though the learned Trial Court directed the petitioner, as
plaintiff, to file his affidavit-in-evidence, the petitioner, before doing
so, moved an application under Order VI Rule 17 of the CPC, seeking
to amend the plaint. Said application stands rejected by the learned
Trial Court vide the order dated 22nd October, 2021, which is under
challenge in the present proceedings.
10. Paras 3 to 6 of the application set out the reasons for seeking
amendment of the plaint, thus:
"3. That although the ownership over the first floor and 2nd
floor portions of A-148, Defence Colony, New Delhi-24 was
conveyed in favour of the plaintiff by virtue of registered
sale deeds dated 11/07/2001 and 07/08/2003 but the right to
enjoy the parking facility at the ground floor was conveyed
in favour of the plaintiff by virtue of undertaking dated
11/07/2001 since it was only a right to enjoy the facility of
parking and was not a transfer of ownership of any portion
of the ground floor in favour of the plaintiff.
4. That as per law, the right to enjoyment of such a
facility i.e. in the present case the parking facility, being an
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easement, is transferable and the plaintiff by virtue of the
said undertaking dated 11/07/2001 acquired the right of
enjoyment of parking facility in perpetuity.
5. That there has been a error in the description of prayer
clause (a) of the plaint as filed by the plaintiff which claimed
absolute ownership of the rear parking space as if it is in
ownership claims to establish a right to a portion of the
immovable property at the ground floor. The concept of
ownership in property is different from the right of
enjoyment of a facility or an easement and the prayer clause
(a) of the plaint as filed by the plaintiff in claiming
ownership over the rear parking space has been a result of
confusion between the two branches of law.
6. That the plaintiff is filing the present application with a
view to remove this confusion occurring by virtue of prayer
clause (a) in the plaint and is seeking to only amend the
prayer clause (a) with a view to clarify and elucidate the
pleadings in the plaint so as to lay a claim of only of
enjoyment in perpetuity over the said parking space."
11. Predicated on this reasoning, the petitioner sought to amend
prayer (a) in the plaint, to read thus:
"(a) pass a decree of declaration thereby declaring the
plaintiff to have an absolute right of use and enjoyment, in
perpetuity, of the car parking space in the rear side of ground
floor of property number A-148, Defence Colony, New Delhi
24 as shown in red in the site plan annexed, to the exclusion
of Defendant Nos 1 and 2".
The petitioner also prayed, in the application, for permission to place,
on record, the site plan for the parking space in the suit property,
invoking, for the purpose, Order VII Rule 14 of the CPC.
The Impugned Order
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12. The learned Trial Court has, by the impugned order dated 22nd
October, 2021, rejected the petitioner's application. After placing
reliance on the judgements of the Supreme Court in Abdul Rehman v.
Mohd. Ruldu1, Pankaja v. Yellappa2, A.K. Gupta & Sons Ltd. v.
Damodar Valley Corporation3 and N.C. Bansal v. Uttar Pradesh
Financial Corporation4 and the High Court of Bombay in Vaishnavi
Sai Shri Mahalaxmi Jagdamba Shikshan Sanstha v. Purva
Vidarbha Mahila Parishad 5, the learned Trial Court has proceeded, in
rejecting the petitioner's prayer for amendment, to reason thus:
"22. It is evident from the contents of the plaint that the
plaintiff was claiming ownership rights in the parking area in
the rear side of the suit property on the basis of Undertaking
dated 11.07.2001 and consequently sought a declaration of
being an owner and also sought execution of further
documents in his favour by way of mandatory injunction. He
also sought that Clause 15 of the Sale Deed dated 26.08.2014
executed in favour of defendant is no. 1 and 2 vide which they
had been allowed the use of entire parking area including the
rear parking to be declared null and void. Significantly, the
suit for declaration has been valued at ₹ 24.90 lakhs on which
the court fee of Rs. 26,647/- has been paid. It is absolutely
clear that what the plaintiff was claiming was a right of
ownership on the basis of Undertaking and also sought
execution of the documents to that effect. The plaintiff by
way of amendment now wants to seek amendment in the
clause (a) in the prayer paragraph to claim the right in the rear
parking space of the suit property in perpetuity to the
exclusion of the defendant no. 1 and 2.
23. Learned counsel for the plaintiff has vehemently
argued that there is no substantial change sought to be
brought in the suit except to change the nature of prayer on
1
(2012) 11 SCC 341
2
(2004) 6 SCC 415
3
AIR 1967 SC 96
4
(2018) 2 SCC 347
5
2022 (1) Mah LJ 519
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the basis of the averments already contained in the plaint.
This argument may be appealing in the first instance but the
plaintiff is seeking to change the entire basis of his claim from
that of an owner to the right to use the parking space in
perpetuity to the exclusion of the defendants.
*****
30. By way of the proposed amendment, the plaintiff is not
seeking to introduce an inconsistent plea which may be
allowed under Order 6 Rule 17 CPC, but is retracting his
claim of being an owner and substituted with a new case of
having a right to use the parking space in the rear portion in
perpetuity. Clearly, by way of proposed amendment, the new
case is sought to be introduced from the case as was originally
pleaded, and changes the entire nature of the suit and the
evidence that would be required to prove the case, which is
not permissible under Order 6 Rule 17 CPC.
*****
32. The present suit was originally instituted before the
Hon'ble High Court on 27.04.2015 wherein on his claim of
being an owner of parking area, an ex parte stay was granted
in favour of the plaintiff. The plaintiff thus, derived a relief
on his claim of ownership which is continuing till date.
Subsequently, the case was transferred to this Court on
account of change of pecuniary jurisdiction. Issues were
framed on 20.05.2020 and affidavits in evidence dated
26.07.2021 has also been filed, though the same is yet to be
tendered. There is no explanation whatsoever for the
inordinate delay in filing of the amendment application which
by no stretch of introduction can be termed as formal.
33. In view of the above discussions, the proposed
amendment proposes to introduce a new case which is beyond
the scope of the order 6 Rule 17 CPC. Hence the same is
dismissed."
13. The learned Trial Court, in rejecting the petitioner's application,
proceeded, essentially, on the premise that the petitioner was, by the
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proposed amendment, "seeking to change the entire basis of his claim
from that of an owner to the right to use the parking space in
perpetuity to the exclusion of the defendants". The petitioner's
contention that it was entitled to take alternative inconsistent pleas
was accepted by the learned Trial Court who, however, held that the
petitioner was not, by the proposed amendment, "seeking to introduce
an inconsistent plea which may be allowed under Order VI Rule 17
CPC", but was "retracting his claim of being an owner and
substituting it with a new case of having a right to use the parking
space rear portion in perpetuity". The case that was being sought to
be set up in the amended plaint was, therefore, according to the
learned Trial Court, different from the case set up in the original
plaint, and resulted in changing of the entire nature of the suit as well
as the evidence which would be required to be produced in the case.
The learned Trial Court also observed that, on the basis of the case as
originally pleaded by him, the plaintiff had obtained interim relief
from the Court. For all these reasons, the learned Trial Court held that
the amendment in the plaint, sought to be effected by the plaintiff,
could not be allowed under Order VI Rule 17, CPC. The application
was therefore rejected.
Rival Contentions
14. Mr. Raman Gandhi appeared for the petitioner and Mr. Manish
Makhija appeared for Respondents 1 and 2. Respondent 3 remained
unrepresented. Learned Counsel were heard at length.
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15. Mr. Gandhi submits that the learned Trial Court was in error in
assuming that, by the proposed amendment, the petitioner was seeking
to alter the nature and character of the case set up in the plaint. He
submits that the amendment was being sought only because of an
inadvertent error by the learned Counsel who had drafted the plaint in
claiming ownership of the petitioner over the rear parking space on
the basis of the undertaking dated 11th July, 2001. Prior to, and after,
the proposed amendment, Mr. Gandhi points out that the petitioner
was only claiming his due as per the undertaking dated 11th July, 2001
tendered by Sumitra Devi. A bare reading of the undertaking, he
submits, indicates that it does not confer ownership rights, but merely
confers, on the petitioner, the right to use the rear parking space,
concomitant on sale of the ground floor of the suit property to a third
party. This is all that, by the amendment, his client seeks to claim.
Mr. Gandhi submits that the nature and character of the suit was not,
thereby, altered or compromised, as the document on the basis of
which the petitioner was staking his claim continued to remain the
undertaking dated 11th July, 2001. It is not, therefore, as though the
petitioner was seeking to alter the basis of the plaint in the suit. It was
only the nature of the right which was available to the petitioner,
under the aforesaid undertaking dated 11th July, 2001, and which had
been wrongly claimed in the suit as originally drafted, that was being
sought to be correctly claimed by the amendment. The inadvertent
error on the part of the earlier learned Counsel who had drafted the
suit, submits Mr. Gandhi, ought not to be regarded as a ground to
disentitle the petitioner from claiming what was rightly due to him.
Inasmuch as the original prayer in the unamended suit, and the
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amended prayer, were both predicated on the undertaking dated 11th
July, 2001, Mr. Gandhi submits that the learned Trial Court was not
correct in holding that the amendment sought to change the very
nature of the suit.
16. Mr. Gandhi submits that the prayer for amendment had been
made before the commencement of trial, as affidavit-in-evidence was
yet to be tendered by the petitioner. Trial commences, he submits,
only when affidavit-in-evidence is filed by the party who has to lead
evidence, for which purpose Mr Gandhi relies on the judgement of the
Supreme Court in Mohinder Kumar Mehra v. Roop Rani Mehra6.
As such, the proviso to Order VI Rule 17 of the CPC would not, he
submits, apply, and a liberal approach was justified in the matter.
17. Mr. Gandhi also places reliance on A.K. Gupta3, as well as the
judgements of a learned Single Judge of this Court in Sarjit Singh
Awla v. Kuldeep Singh Awla7 and GCG Transglobal Housing
Project Pvt Ltd v. Surakshit Exports Pvt Ltd8.
18. Arguing per contra, Mr. Makhija compared the prayers in the
original plaint filed by the petitioner, vis-à-vis the proposed amended
prayer, in an attempt to convince the Court that the amendment
amounted to abandoning the original claim as preferred in the plaint
and setting up an entirely new case. This, submits Mr. Makhija,
cannot be permitted under Order VI Rule 17 of the CPC, for which
purpose he cites the judgement of the Supreme Court in M. Revanna
(2018) 2 SCC 132
245 (2017) DLT 515
2015 SCC OnLine Del 7263
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v. Anjanamma9 as well as the judgement of the High Court of
Bombay in Vaishnavi Sai Shri Mahalaxmi Jagdamba Shikshan
Sanstha5. Additionally, he placed reliance on order dated 6 th
September, 2013, whereby a Coordinate Bench of this Court disposed
of CS (OS) 940/2010 supra. He submits that the petitioner had
instituted the said suit against Sumitra Devi, and that the suit was
disposed of on the basis of a settlement, resulting in a compromise
deed dated 14th June, 2013. These documents, Mr. Makhija submits,
have been suppressed by the petitioner, thereby disentitling him to
relief from this Court. The claim now being set up by the petitioner,
he submits, is in the teeth of the aforesaid settlement, on the basis of
which CS (OS) 940/2010 was disposed of, as compromised.
19. No case exists, submits Mr. Makhija, for this Court to interfere,
in exercise of the jurisdiction vested in it by Article 227 of the
Constitution of India, with the view expressed by the learned Trial
Court, while dismissing the petitioner's application under Order VI
Rule 17, CPC.
Analysis
20. Order VI Rule 17 of the CPC reads thus:
"17. Amendment of pleadings. - The Court may at any
stage of the proceedings allow either party to alter or amend
his pleading in such manner and on such terms as may be just,
and all such amendments shall be made as may be necessary
(2019) 4 SCC 332
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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."
21. A reading of Order VI Rule 17 reveals the following:
(i) The provision uses the word "may" as well as "shall".
They are, however, used in different contexts, and, therefore, no
confusion arises as a consequence. The provision states that the
Court may at any stage of the proceedings allow amendment of
the pleadings. The use of the word "may" is, in this context,
clearly permissive and empowering in nature. It indicates that
the Court is empowered, at any stage of the proceedings, to
allow amendment of the pleadings. Additionally, even
syntactically, no other word could be used in place of "may", as
it is followed with the words "at any stage of the proceedings".
These opening words of Order VI Rule 17, therefore, indicates
that amendment of pleadings may be allowed by the Court at
any stage of the proceedings.
(ii) The use of the word "shall", later in Order VI Rule 17 is,
however, imperative and mandatory in nature. The clear intent
of the legislature is that all amendments, which satisfy the
criteria envisaged by Order VI Rule 17 shall be allowed.
Rather, it casts an obligation and a duty to carry out,
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necessarily, all such amendments as are necessary for the
purpose of determining the real questions in controversy
between the parties.
(iii) In this context, the use of the word "made", instead of
"allowed" is also significant. Order VI Rule 17 does not say
that "all such amendments shall be allowed". It states that "all
such amendments shall be made". To my mind, the use of the
word "made" is significant and purposeful. Amendments are
allowed by the Court, but they are made by the litigant applying
for the amendment. The use of the expression "shall be made",
instead of "shall be allowed", therefore, indicates that the duty
that is cast, by Order VI Rule 17, is cast on the litigant, rather
than on the Court. Holistically, once, therefore, the Court, at
any stage of the proceedings, allows a party to amend his
pleadings, all such amendments shall be made as are necessary
to determine the real questions in controversy between the
parties. Having said that, judicial authorities have often read the
word "made" as referring to the duty of the Court to allow such
amendments.
(iv) The governing and delimiting expression, in Order VI
Rule 17 is, unquestionably, "as may be necessary for the
purpose of determining the real questions in controversy
between the parties". To apply this clause, the following three
questions have to be posed and answered:
(a) What is the controversy between the parties?
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(b) What are the real questions in the said
controversy?
(c) Are the amendments, being sought, necessary for
determining the said questions? If they are, they shall be
made.
(v) It is not open, therefore, for a Court to refuse to allow an
amendment which is necessary for determining the real
questions in controversy between the parties before it. At
whatever stage the amendment is sought, it has to be allowed.
(This is, of course, subject to the proviso to Order VI Rule 17,
to which I shall presently advert.)
(vi) The import of the latter half of the main part of Order VI
Rule 17 has, however, to be carefully understood. It states that
"all such amendments shall be made as may be necessary for
the purpose of determining the real questions in controversy
between the parties". This may be worded, otherwise, as "if the
amendments are necessary for determining the real questions in
controversy between the parties, then they shall be allowed". It
would be erroneous, however, from this proposition, to deny the
antecedent10. Order VI Rule 17, in other words, while setting
out a circumstance in which the amendment shall be made, does
"Denying of the antecedent", also known, in logic, as the "fallacy of the inverse" is a common fallacy in
logic, by which, from the proposition "if A, then B", it is inferred that "if not A, then not B". This is well
understood as an incorrect, and invalid, presumption in logic. From the truism that "if the water is boiling, the
kettle is warm", it cannot be said, by inference, that "if the water is not boiling, the kettle i s not warm". The
kettle may be warm even if the water has not reached boiling point.
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not delineate the circumstances in which the prayer for
amendment may be refused. From the proposition "if the
amendments are necessary for determining the real questions in
controversy between the parties, then they shall be allowed", it
would be fallacious, in logic, to infer that "if the amendments
are not necessary for determining the real questions in
controversy between the parties, then they shall not be
allowed". To reiterate, therefore, while Order VI Rule 17
requires an amendment, which is necessary for determining the
real questions in controversy between the parties to necessarily
be allowed, it does not, by inference, state that all other
amendments may be refused.
(vii) Neither does Order VI Rule 17, therefore, delineate,
exhaustively, all circumstances in which a prayer for
amendment should be allowed, nor does it identify the
circumstances in which a prayer for amendment should not be
allowed. It merely identifies one situation in which the
amendment is necessary for determining the real issues in
controversy between the parties as one circumstance in which
the amendment is mandatorily required to be allowed.
(viii) The circumstances in which a prayer for amendment of
pleadings may justifiably be refused are not, therefore, set out
in Order VI Rule 17. They have, however, been explained in
judicial precedents, over a period of time, to which I would
presently allude.
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(ix) Delay in applying for amendment, or possibility of the
proceedings getting protracted were the prayer for amendment
to be allowed, are not, therefore, statutorily envisaged as
grounds on which a prayer for amendment of pleadings may
legitimately be denied. On the proposition that delay in
applying for amendment cannot be a sole ground to reject the
prayer, the judgement of the Supreme Court in Andhra Bank v.
ABN Amro Bank N.V.11 is a clear authority.
(x) The expression "as may be necessary for the purpose of
determining the real questions in controversy between the
parties" is an extremely fluid expression. The contours of the
said expression have been delineated, over the course of time,
by various precedents of the Supreme Court. They would be
dealt with, presently.
(xi) The proviso to Order VI Rule 17, however, envisages a
circumstance in which the provision would not apply. A
proviso is, per definition, an exception to the main provision. If
the proviso applies, therefore, there is no occasion to refer to the
main provision at all. It is legitimate, therefore, for the Court to
examine, in the first instance, whether the proviso applies. If it
does, applicability of the main part of Order VI Rule 17 stands
ipso facto ruled out.
(2007) 6 SCC 167
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(xii) The proviso to Order VI Rule 17 prohibits, again in
absolute terms (as is apparent from the use of the word "shall"),
allowing of an application for amendment after commencement
of the trial, unless the Court finds that, in spite of due diligence,
the party could not have raised the matter prior thereto. The
latter part of the proviso, which excepts its application where
the Court is satisfied that, despite due diligence, the amendment
being sought could not have been raised before trial
commenced is, of course, a matter entirely within the subjective
discretion of the Court. Chander Kanta Bansal v. Rajinder
Singh Anand12 adopts, to understand the expression "due
diligence", the following definition from Words & Phrases, Pmt
Edition, 13A, of the expression:
"'Due diligence' in law means doing everything
reasonable, not everything possible. 'Due diligence'
means reasonable diligence; it means such diligence as
a prudent man would exercise in the conduct of his
own affairs."
Having relied on the above definition, the Supreme Court, in
Chander Kanta Bansal12, defined "due diligence" as meaning
"the diligence reasonably exercised by a person who seeks to
satisfy a legal requirement or to discharge an obligation".
Consolidated Engineering Enterprises v. Principal Secretary,
Irrigation Department13, in like terms, defined "due diligence"
as "a measure of prudence or activity expected from and
ordinarily exercised by a reasonable and prudent person under
(2008) 5 SCC 117
(2008) 7 SCC 169
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the particular circumstances". Importantly, therefore, "due
diligence" connotes reasonable diligence, keeping in view the
circumstances of the case. These twin considerations have,
therefore, to inform the Court seized with the issue of whether a
litigant, before it, had exercised "due diligence". The elasticity
of the expression is self-evident. If trial has commenced, the
Court would then have to examine, on facts, whether the party
was unable to raise the matter before trial commenced, despite
due diligence.
(xiii) In this context, the word "allowed", as used in the
proviso to Order VI Rule 17, may call for a nuanced
interpretation where, for example, the application is filed before
trial commences, but is taken up by the Court after trial has
commenced. One way of avoiding such an unwholesome
situation would, of course, be that, if a party informs the Court
that an application for amendment has been moved, the Court
should take up the application first, instead of proceeding with
trial, so that the application is not hit by the proviso. If,
however, despite moving an application for amendment, the
applicant does not disclose this fact to the Court, and permits
trial to commence, it would be inequitable to allow the
applicant to later claim amnesty from the application of the
proviso to him on the ground that, prior to commencement of
trial, he had moved the application. Though the present case
does not involve any such fact situation, in my opinion, if, prior
to commencement of trial, an application seeking amendment is
moved, it would be for the applicant to ensure that the
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application is listed and taken up before trial commences. Once
trial commences, the proscription engrafted in the proviso to
Order VI Rule 17 applies, inexorably and absolutely.
22. Analysing Order VI Rule 17, the Supreme Court, in Rajkumar
Gurawara v. S.K. Sarwagi & Co. (P) Ltd.14, held thus:
"13. To put it clear, Order 6 Rule 17 CPC confers
jurisdiction on the court to allow either party to alter or amend
his pleadings at any stage of the proceedings on such terms as
may be just. Such amendments seeking determination of the
real question of the controversy between the parties shall be
permitted to be made. Pre-trial amendments are to be allowed
liberally than those which are sought to be made after the
commencement of the trial. As rightly pointed out by the
High Court in the former case, the opposite party is not
prejudiced because he will have an opportunity of meeting the
amendment sought to be made. In the latter case, namely,
after the commencement of trial, particularly, after
completion of the evidence, the question of prejudice to the
opposite party may arise and in such event, it is incumbent on
the part of the court to satisfy the conditions prescribed in the
proviso."
23. Which brings us to the three most important aspects to be
examined, while considering an application seeking amendment of
pleadings under Order VI Rule 17, viz.
(i) when trial can be said to commence (in relation to the
proviso),
(ii) whether the amendment is necessary to determine the real
issue in controversy between the parties (in which case the
amendment has necessarily to be allowed), and
(2008) 14 SCC 364
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(iii) if the answer to (ii) is in the negative, whether the prayer
for amendment deserves to be rejected for any reason (if not,
the amendment would have to be allowed).
When does trial commence?
24. Mr. Gandhi contended that, in the present case, trial had not
commenced till the date when the impugned order came to be passed,
as affidavit-in-evidence on behalf of the petitioner (as plaintiff) was
yet to be filed by him. For this purpose, Mr. Gandhi relied on
Mohinder Kumar Mehra6.
25. Paras 17 to 20 and 22 of the report in Mohinder Kumar Mehra6
read thus:
"17. Although Order 6 Rule 17 permits amendment in the
pleadings "at any stage of the proceedings", but a limitation
has been engrafted by means of proviso to the effect that no
application for amendment shall be allowed after the trial is
commenced. Reserving the court's jurisdiction to order for
permitting the party to amend pleading on being satisfied that
in spite of due diligence the parties could not have raised the
matter before the commencement of trial. In a suit when trial
commences? Order 18 CPC deals with "hearing of the suit
and examination of witnesses". Issues are framed under Order
14. At the first hearing of the suit, the court after reading the
plaint and written statement and after examination under Rule
1 of Order 14 is to frame issues. Order 15 deals with "disposal
of the suit at the first hearing", when it appears that the parties
are not in issue of any question of law or a fact. After issues
are framed and case is fixed for hearing and the party having
right to begin is to produce his evidence, the trial of suit
commences.
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18. This Court in Vidyabai v. Padmalatha15, held that
filing of an affidavit in lieu of examination-in-chief of the
witnesses amounts to commencement of proceedings. In para
11 of the judgment, the following has been held: (SCC p. 413)
"11. From the order passed by the learned trial
Judge, it is evident that the respondents had not been
able to fulfil the said precondition. The question,
therefore, which arises for consideration is as to
whether the trial had commenced or not. In our
opinion, it did. The date on which the issues are
framed is the date of first hearing. Provisions of the
Code of Civil Procedure envisage taking of various
steps at different stages of the proceeding. Filing of an
affidavit in lieu of examination-in-chief of the witness,
in our opinion, would amount to "commencement of
proceeding"."
19. Coming to the facts of the present case, it is clear from
the record that issues were framed on 17-5-2010 and case was
fixed for recording of evidence of the plaintiff on 10-8-2010.
The plaintiff did not produce the evidence and took
adjournment and in the meantime filed an application under
Order VI Rule 16 or 17 on 17-1-2011. Thereafter the Court
on 26-7-2011 has granted four weeks' time as the last
opportunity to file the examination-in-chief. It is useful to
quote para 4 of the order, which is to the following effect:
"4. In view of the above, it is directed as follows:
(i) Having regard to the delay which has
ensued, subject to the plaintiff paying costs of
Rs 5000, each to the contesting Defendants 1
and 5 within a period of one week, the plaintiff
is permitted four weeks' time as a last
opportunity to file the examination-in-chief of
his witnesses on affidavit.
(ii) The matter shall be listed before the Joint
Registrar for recording of plaintiff's evidence on
29-8-2011.
(2009) 2 SCC 409
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(iii) The case shall be listed before the Court
for direction on 18-1-2012.
(iv) Needless to say in case IA No. 1001 of
2011 is allowed, appropriate orders for evidence
of the plaintiff would be made."
20. Thus, technically trial commenced when the date was
fixed for leading evidence by the plaintiff but actually the
amendment application was filed before the evidence was led
by the plaintiff. The parties led evidence after the amendment
application was filed. In this context, it is necessary to notice
the order of the High Court dated 14-2-2014, which records
that evidence of both the parties have been concluded. Most
important fact to be noticed in the order is that the Court
recorded the statement of the plaintiff's counsel that parties
have led evidence in view of the amendment sought in the
plaint. The order dated 14-2-2014 is to the following effect:
"The evidence of both the parties has been concluded.
The matter has been listed for final disposal. The
learned counsel for the plaintiff has pointed out the
order dated 26-7-2011 wherein observation was made
that in case IA No. 1001 of 2011 under Order VI Rule
17 CPC for amendment of the plaint is allowed,
appropriate order for evidence of the plaintiff would be
made. As a matter of fact, the plaintiff's counsel stated
that the parties have also led evidence in view of
amendment sought in the plaint and the same covered
in the evidence produced by the parties. The
defendants, however, alleged that the said amendment
was unnecessary and was opposed by the defendants
and issue involved in the said circumstances be
considered at the time of final hearing of suit as
Defendant 1 is more than 85 year old lady, the suit
itself be decided.
List this matter in the category of short cause on 22-5-
2014...."
*****
22. The proviso to Order 6 Rule 17 CPC prohibited
entertainment of amendment application after commencement
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of the trial with the object and purpose that once parties
proceed with the leading of evidence, no new pleading be
permitted to be introduced. The present is a case where
actually before parties could lead evidence, the amendment
application has been filed and from the order dated 14-2-
2014, it is clear that the plaintiff's case is that parties have led
evidence even on the amended pleadings and the plaintiff's
case was that in view of the fact that the parties led evidence
on amended pleadings, the allowing of the amendment was a
mere formality. The defendant in no manner can be said to be
prejudiced by the amendments since the plaintiff led his
evidence on amended pleadings also as claimed by him."
(Emphasis supplied)
26. The position in law as enunciated in the afore extracted
passages from Mohinder Kumar Mehra6 is interesting. The Supreme
Court noted, clearly and with no equivocation whatsoever that, in
Vidyabai12, it had been held that "filing of an affidavit in view of
examination-in-chief of the witnesses amounts to commencement of
proceedings". (Though the Supreme Court has used the phrase
"commencement of proceedings", one may regard the Supreme Court
as having meant "commencement of trial", as the enunciation was
with relation to the proviso to Order VI Rule 17 of the CPC.) Having
thus noted the position in law, as enunciated in Vidyabai12 regarding
commencement of trial, the Supreme Court went on to observe, with
respect to the facts before it, that "technically trial commenced when
the date was fixed for leading evidence". There appears, therefore, to
be some discordance between Vidyabai12 and Mohinder Kumar
Mehra6 with respect to the date when the trial could be said to
commence, as Vidyabai12 held that trial commenced on the date when
the affidavit in evidence was filed, whereas Mohinder Kumar Mehra6
held that, "technically", trial commenced when a date was fixed for
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leading evidence. However, this slight discordance, if any, need not
concern us as, even in Mohinder Kumar Mehra6, the Supreme Court
held that the application for amendment, filed before evidence was
actually led by the plaintiff, would not be hit by the proviso to Order
VI Rule 17 of the CPC. The relevant date for applying the proviso to
Order VI Rule 17 would, as per Mohinder Kumar Mehra6, therefore,
be the date when the plaintiff led evidence.
27. The first step in leading of evidence is either production of the
witness for examination or, at the very least, filing of the affidavit-in-
evidence of the witness by the party who is required, by the Court, to
lead evidence in the first instance; generally, the plaintiff. Whether
one applies Vidyabai12, therefore, or Mohinder Kumar Mehra6, the
trial could not be stated to have commenced, for the purpose of
applicability of the proviso to Order VI Rule 17 of the CPC, before the
affidavit-in-evidence of the plaintiff is filed even if, prior thereto, the
Court has directed filing of affidavit-in-evidence by a particular date.
28. Even while applying the proviso to Order VI Rule 17, the
Supreme Court has, in Gurbakhsh Singh v. Buta Singh16 , adopted a
somewhat relaxed approach, even while remaining within the
discipline of the proviso. The appellants in that case sought leave to
amend the plaint filed by them after issues had been framed and two
official witnesses examined. Clearly, therefore, the prayer for
amendment was made after trial had commenced. Applying the
proviso to Order VI Rule 17, the learned Trial Court dismissed the
(2018) 6 SCC 567
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application for amendment, observing that the appellants had failed to
exercise due diligence, and that the facts sought to be introduced by
amendment could have been placed before issues were framed. The
appellants challenged the decision of the learned Trial Court before
the High Court by way of Civil Revision, in which it was submitted
that the appellants only chose to introduce, by the proposed
amendments in the plaint, the specific Khasra numbers of the land in
dispute. The Civil Revision having been dismissed by the High Court,
the appellants appealed to the Supreme Court.
29. The High Court, in dismissing the appellant's petition, relied
solely on Order VI Rule 17, observing, significantly, that, though the
amendment proposed did not change the nature of the suit,
nonetheless, it could not be allowed, in view of the proscription
contained in the proviso to Order VI Rule 17, given the fact that the
specifics that the appellants sought to introduce by amendment were
known to them prior to commencement of trial. The Supreme Court
set aside the judgement of the High Court, holding, in the process, in
para 5 of the report, thus:
"5. In the present case the record of Civil Suit No. 195 of
1968 in which ex parte decree was passed on 30-6-1969 is not
traceable. In the circumstances, there could possibly be some
inability in obtaining correct particulars well in time on part
of the appellants. At the time when the application for
amendment was preferred, only two official witnesses were
examined. The nature of amendment as proposed neither
changes the character and nature of the suit nor does it
introduce any fresh ground. The High Court itself was
conscious that the amendment would not change the nature of
the suit. In the given circumstances, in our view, the
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amendment ought to have been allowed. In any case it could
not have caused any prejudice to the defendants."
The Supreme Court was, thus, persuaded to set aside the judgement of
the High Court as (i) only two official witnesses had been examined,
(ii) the amendment sought did not alter the nature or character of the
suit, or introduce any new ground, (iii) the amendment did not result
in any prejudice to the respondents and (iv) "there could possibly be
some inability in obtaining correct particulars well in time on the part
of the appellants", especially as the record of the earlier Civil Suit was
not traceable.
30. This judgement indicates that, even while examining the
aspect of "due diligence" under the proviso to Order VI Rule 17, the
Court is required to adopt an expansive and liberal, rather than a
pedantic and literal, approach. Of course, even if after adopting such
an approach, it is found that the applicant seeking amendment could
have, by exercising due diligence, raised the matter being sought to be
raised by amendment before commencement of the trial, the proviso
would operate absolutely, to discredit the plea for amendment.
Application of the proviso to Order VI Rule 17 to the facts of the
present case
31. In the present case, the petitioner has clearly averred, on oath,
that the finding of the learned Trial Court, that trial had commenced in
the present case, was incorrect, as evidence of the parties had not yet
begun, and the petitioner was yet to tender his affidavit by way of
examination-in-chief. The respondents, in the reply, have not
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contested this claim. As such, it is apparent that trial had not, in the
present case, commenced when the impugned order came to be passed
on 22nd October, 2021. The proviso to Order VI Rule 17 of the CPC,
therefore, has no application in the present case.
When the prayer for amendment should and when the prayer for
amendment can be allowed
32. Once it is asserted that the case does not attract the proviso to
Order VI Rule 17, the court is thereafter required to examine whether
the amendment sought is necessary to determine the real issue in
controversy between the parties (being the test expressly stipulated in
Order VI Rule 17) and, in the event the answer to the said question is
in the negative, whether the amendment sought is required to be
allowed or rejected on any other ground. These issues juxtapose into
one another, and their answers would become apparent if one scans
the evolution of the law through decisions rendered by the Supreme
Court and other judicial authorities on the point.
33. On a reading of the judgments rendered by the Supreme Court
on the scope of ambit of Order VI Rule 17, the following propositions
emerged:
(i) All amendments are to be allowed which are necessary
for determining the real question in controversy provided it
does not cause injustice or prejudice to the other side. This is
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mandatory, as is apparent from the use of the word "shall", in
the latter part of Order VI Rule 1717.
(ii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and
proper adjudication of the controversy between the
parties, and
(ii) to avoid multiplicity of proceedings,
provided
(a) the amendment does not result in injustice to the
other side,
(b) by the amendment, the parties seeking amendment
does not seek to withdraw any clear admission made by
the party which confers a right on the other side and
(c) the amendment does not raise a time barred claim,
resulting in divesting of the other side of a valuable
accrued right (in certain situations) 18.
(iii) A prayer for amendment is generally required to be
allowed unless
(i) by the amendment, a time barred claim is sought to
be introduced, in which case the fact that the claim would
be time barred becomes a relevant factor for
consideration,
(ii) the amendment changes the nature of the suit,
Rajesh Kumar Aggarwal v. K. K. Modi, (2005) 4 SCC 385; Pirgonda Hongonda Patil v. Kalgonda
Shidgonda Patil, AIR 1957 SC 363; Dondapati Narayana Reddy v. Duggireddy Venkatanarayana
Reddy, (2001) 8 SCC 115
Estrella Rubber v. Dass Estate (P) Ltd, (2001) 8 SCC 97
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(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid
defence19.
(iv) In dealing with a prayer for amendment of pleadings, the
court should avoid a hypertechnical approach, and is ordinarily
required to be liberal especially where the opposite party can be
compensated by costs20.
(v) The proscription against allowing an application for
amendment, where the amendment results in setting up a time
barred claim, is not absolute. In Pirgonda Hongonda Patil v.
Kalgonda Shingonda Patil21 and Muni Lal v. Oriental Fire &
General Insurance Co. Ltd.22, it was held that, as the proposed
amendment set up a case which, since institution of the suit, had
become time barred, it would cause prejudice to rights which
vested in the other side, the amendment should not be allowed.
At the same time, in L.J. Leach & Co. Ltd. v. Jardine Skinner
& Co.23, the Supreme Court held that the fact that the claim
which was sought to be introduced by the amendment was time
barred was not an absolute bar and that a time barred claim
could also be sought to be introduced by amendment if the court
felt it necessary to do so, ex debito justitiae.
Punjab National Bank v. Indian Bank, AIR 2003 SC 2284
B.K. Narayana Pillai v. Parameswaran Pillai, AIR 2000 SC 614
AIR 1957 SC 363
AIR 1996 SC 642
AIR 1957 SC 357
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(vi) Where the amendment would enable the court to pin-
pointedly consider the dispute and would aid in rendering a
more satisfactory decision, the prayer for amendment was
required to be allowed.24
(vii) Where the amendment merely sought to introduce an
additional or a new approach without introducing a time barred
cause of action, the amendment is liable to be allowed even
after expiry of limitation.25
(viii) Amendment may be justifiably allowed where it is
intended to rectify the absence of material particulars in the
plaint.26
(ix) Delay in applying for amendment alone is not a ground to
disallow the prayer27. Where the aspect of delay is arguable, the
prayer for amendment could be allowed and the issue of
limitation framed separately for decision.28
(x) An amendment which results in substitution of one
distinct cause of action for another, or in changing the subject
matter of the suit, cannot be allowed; else, it can.29 Certain
illustrative examples may be noted thus:
(a) Where the original prayer in a plaint was against
demolition, and demolition actually took place during the
Ramchandra Sakharam Mahajan v. Damodar Trimbak Tanksale, (2007) 6 SCC 737
A.K. Gupta and Sons v. Damodar Valley Corporation, AIR 1967 SC 96
V.S. Achuthanandan v. P.J. Francis, AIR 1999 SC 2044
Andhra Bank v, ABN Amro Bank N.V., AIR 2007 SC 2511
Ragu Tilak D. John v. S. Rayappan, AIR 2001 SC 699
Ma Shwe Mya v. Maung Mo Hnaung, AIR 1922 PC 249
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pendency of the suit, an application seeking amendment
of the prayer to claim damages was required to be
allowed, as held in Ragu Tilak D. John v. S.
Rayappan28.
(b) In a suit for allotment of properties, an amendment
of the schedule of properties in the suit was sought on the
ground that some properties had been incorrectly
described and some properties had inadvertently left out.
In C.M. Vareekutty v. C.M. Mathukutty 30, it was held
that the amendment was required to be allowed.
(c) The plaintiff sought eviction of the defendant on
the ground that the defendant was a licensee. In his
written statement, the defendant claimed that he was not a
licensee but a lessee. After trial had commenced, the
defendant sought to amend the written statement (i) to
incorporate an alternate plea, in case the court found him
to be a licensee, that the license was irrevocable, (ii) to
plead that two of the prayers in the suit were time barred
and (iii) to plead that, as the defendant had executed
works of a permanent nature and had incurred expenses
therefor, the license could not be revoked in view of
Section 60(b) of the Indian Easements Act, 1882. The
Supreme Court, in B.K. Narayan Pillai20, held that the
amendment was required to be allowed as the plaintiff
(1980) 1 SCC 537
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could be compensated by costs, subject to the defendant
paying arrears of licence fee.
(d) A prayer for amendment in a suit seeking specific
performance, by adding a necessary averment which was
inadvertently left out owing to mistake of counsel, was
allowed as it did not result in any fresh cause of action, in
Gajanan Jaikishan Joshi v. Prabhakar Mohanlal
Kalwar31.
(e) In Vijendra Kumar Goel v. Kusum Bhuwania
and K. Raheja Constructions Ltd. v. Alliance
Ministries33, it was held that an injunction suit could not,
by amendment, be allowed to be converted into a suit for
specific performance where, by that time, a suit for
specific performance would have become barred by time.
(xi) Applying these principles, in Jagan Nath v Chander
Bhan34, it was held that once, in his written statement, the
defendant had admitted the fact of tenancy, he could not,
thereafter, seek to amend the written statement and withdraw
the admission, as it would amount to taking an altogether new
plea and divesting the opposite party of a valuable right.
Introduction of a prayer for mesne profits was, to the extent
(1990) 1 SCC 166
(1997) 11 SCC 457
1995 SUPP 3 SCC 17
1988 (3) SCC 57
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permissible within limitation, allowable by amendment, as held
in Haridas Girdhardas v Varadaraja Pillai35.
34. The principles governing applications seeking amendment of
pleadings, moved under Order VI Rule 17 CPC, are, therefore, well-
settled. By judicial fiat, however, these principles have been subjected
to exceptions where allowing the amendment would result in
irreparable injustice to the opposite party, or where, by the
amendment, the party seeking amendment withdraws or resiles from
an admission or pleading made by him during the proceedings,
thereby resulting in injustice to the opposite party. A time barred
claim, too, ordinarily, cannot be sought to be introduced by an
amendment in a plaint; this principle, however, is not absolute and, in
certain circumstances, a court may permit introduction of a time
barred claim by amendment ex debito justitiae. Where the amendment
changes the nature of the suit or the cause of action, so as to set up an
entirely new case, foreign to the case set up in the plaint, the
amendment must be disallowed. Where, however, the amendment
sought is only with respect to the relief in the plaint, and is predicated
on facts which are already pleaded in the plaint, ordinarily the
amendment is required to be allowed.
35. A golden thread that runs through all these principles is that,
where the amendment is sought before commencement of trial, the
court is required to be liberal in its approach. The court is required to
bear in mind the fact that the opposite party would have a chance to
AIR 1971 SC 2366
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meet the case set up in amendment. As such, where the amendment
does not result in irreparable prejudice to the opposite party, or divest
the opposite party of an advantage which it had secured as a result of
an admission by the party seeking amendment, the amendment is
required to be allowed. Equally, where the amendment is necessary for
the court to effectively adjudicate on the main issues in controversy
between the parties, the amendment should be allowed.
The impugned order, examined in the light of the above principles
36. The learned Trial Court has, in the impugned order, correctly
understood and recognized these principles. In applying them,
however, I am of the opinion that the learned Trial Court has erred.
Inasmuch as the consequence of the error is divestiture, by the learned
Trial Court, of a jurisdiction which, in my considered opinion, did vest
in it, resulting in the petitioner being completely non-suited in the
matter of urging a right which, according to the petitioner, flows from
the undertaking dated 11th May, 2001, executed by Sumitra Devi, the
error committed by the learned Trial Court, in my view, requires
correction in exercise of the supervisory jurisdiction vested in this
Court by Article 227 of the Constitution of India.
37. Admittedly, the only amendment sought by the petitioner was in
the prayer clause. Earlier, the petitioner was seeking a declaration that
the petitioner was the owner of the rear side parking in the suit
property. By the amendment, the petitioner, gave up his claim to
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ownership, and substituted it with the claim for right to use the rear
parking space in perpetuity.
38. The learned Trial Court has rejected the prayer for amendment,
holding that, by converting a suit claiming ownership into a suit
claiming merely a right to use the suit property in perpetuity, the
petitioner had completely altered the very nature and character of the
suit. Inasmuch as it is not permissible for a litigant to, by amending
the plaint under Order VI Rule 17 CPC, change its nature and
character, the learned Trial Court has rejected the prayer for
amendment.
39. Mr. Gandhi, however, disputes the finding, of the learned Trial
Court, that the petitioner was, by the amendment that he sought to
make in the suit, altering its nature and character. I confess that I am
inclined to agree with Mr. Gandhi. Whether in its amended or its
unamended form, the petitioner was seeking enforcement of the right
which, according to the petitioner, flowed to the petitioner under the
undertaking dated 11th May, 2001 executed by Sumitra Devi.
40. The undertaking speaks for itself. It would be for the court to
interpret the undertaking. The contention of the petitioner is that,
though the undertaking confers, on the petitioner, only a right to use
the rear parking space, the petitioner, by mistake, claimed ownership
of the said space. The petitioner merely seeks to amend the plaint to,
instead, pray that, on the basis of the undertaking dated 11th May,
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2001, the petitioner was entitled to right to use the rear parking space
in perpetuity.
41. In either case, the claim was predicated on the undertaking
dated 11th May, 2001. The case of the petitioner, as set up in the plaint,
was that Sumitra Devi had, at the time of executing sale deeds in
favour of the petitioner in respect of the second and third floor of the
suit property, executed an undertaking on 11th May, 2001, undertaking
not to sell the ground floor to any third party without offering the
petitioner a right of first purchase and, in the event of such sale, to
allow the petitioner to use the rear parking space at the ground floor of
the suit property "as owner". The petitioner, in these circumstances,
sought a declaration that he was the owner of the rear parking space.
Apparently having re-read the undertaking, the petitioner now seeks to
urge that the right which flowed to him under the undertaking was
only a right to use the rear parking space and that ownership had,
therefore, been claimed by mistake.
42. The issue, pre- or post- amendment, only involves
interpretation of the undertaking. It would be for the court to take a
view as to whether the undertaking vests a right of ownership on the
petitioner, or a right to use the rear parking space in perpetuity, or
vests no right at all.
43. The substituted prayer is predicated on the very same factual
material on which the original prayer was predicated. The petitioner
has, in fact, scaled down the relief that he has sought, from a claim of
ownership to a claim of user. It cannot, however, be said that, by
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doing so, the petitioner has altered the nature and character of the suit.
Whether in its original, or its proposed amended avatar, the suit
questions the right of Respondent 3 to sell the ground floor of the suit
property to Respondents 1 and 2 in the teeth of the undertaking dated
11th May, 2001, and seeks the relief which, according to the petitioner,
flows to it from the undertaking.
44. I am unable, therefore, to agree with the learned Trial Court
that, by seeking amendment in his plaint, the petitioner was altering
the nature and character of the suit filed by him. All that the petitioner
was doing was seeking an amendment of the prayer for declaration, as
contained in the suit, from a prayer for a declaration that the
undertaking conferred Right X on the plaintiff, to one that the
undertaking conferred Right Y. In either case, as already noted, what
the court is required to do is to analyze the undertaking, along with the
objections to its veracity as raised by the respondent, and determine
whether, in terms of the undertaking (if it is found to be genuine and
convincing) the petitioner was entitled to the relief sought by him. A
mere change in the relief that was being sought, predicated as it was,
in either case, on the undertaking and without involving any new facts,
could not be regarded as altering the cause of action in the suit.
45. The "bundle of facts" that the petitioner was required to prove,
to entitle him to relief, in either case, involved the sale deed executed
by Sumitra Devi in respect of the first and second floors of the suit
property and the undertaking purportedly executed by Sumitra Devi
on 11th May, 2001.
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
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46. It is well settled that the CPC, as a procedural statute, cannot be
so interpreted as to defeat substantive rights36. If, indeed, the
undertaking dated 11th May, 2001 (assuming it to be genuine and
reliable), in fact, grants the petitioner right of user of the rear parking
space, consequent on sale of the ground floor by the legal heirs of
Sumitra Devi to Respondent 1, the petitioner cannot be disentitled
from enforcing this right merely because, at the time of drafting and
filing of the plaint, the case set up was of ownership. It is always open
to the respondents to oppose the petitioner's claim, on facts as well as
in law. Trail has not yet commenced, as affidavit in evidence has yet
to be filed by the petitioner.
47. I am, therefore, of the considered opinion that the amendment in
the prayer clause in the plaint, sought to be effected by the petitioner
via its application under Order VI Rule 17 of the CPC, deserved to be
allowed, and that the learned Trial Court, in holding otherwise, has
erred.
Arguments regarding easements
48. One of the contentions advanced by Mr. Gandhi, appearing for
the petitioner, was that the right claimed by the petitioner under the
amendment that it sought to effect in the prayer clause in the plaint,
was an easementary right, and that easementary rights are also, in a
way of speaking, rights of ownership.
Mahila Ramkali Devi v. Nandram, (2015) 13 SCC 132
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49. There is a fundamental fallacy in this submission. In India,
easementary rights are codified and governed by the Indian Easements
Act, 1882. Section 4 of the said Act (to the extent it is relevant)
defines "easement" thus:
"4. "Easement" defined. - An easement is a right which
the owner or occupier of certain land possesses, as such, for
the beneficial enjoyment of that land, to do and continue to do
something, or to prevent and continue to prevent something
being done, in or upon, or in respect of, certain other land not
his own."
50. A bare reading of Section 4 of the Easements Act indicates that
easementary rights are not rights of ownership. In fact, easementary
rights are claimed qua land of which an other person is the owner.
They are rights of enjoyment, in the manner permitted by Easements
Act, of the land of another. Though the right is claimed by an owner
of land, the right claimed is not in respect of land of which he is the
owner, but in respect of the land of another. As such, easementary
rights are not rights of ownership, in any manner of speaking.
51. That apart, the original plaint in CS DJ 10306/2016 did not
claim easementary rights. It is not open to the petitioner, therefore, to
urge, by amending the prayer, that the petitioner was claiming
easementary rights urging such right also to be a specie of the rights of
ownership.
52. In any event, as I have held that the application for amendment
deserves to be allowed even on merits, under Order VI Rule 17 of
CPC, this aspect does not continue to retain any significance.
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
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Conclusion
53. In view of the aforesaid discussion, I am unable to concur with
the findings of the learned Trial Court that the amendment, sought by
the petitioner in the prayer clause in CS DJ 10306/2016, was liable to
be rejected under Order VI Rule 17 of CPC.
54. To my mind, the prayer for amendment did not alter the nature
or character of the suit set up by the petitioner, which was essentially
ventilating the rights which, according to the petitioner, enured in the
petitioner's favour, by virtue of the undertaking purportedly executed
by Sumitra Devi on 11th May, 2001.
55. Treating the nature and character of the suit as changed, merely
because the petitioner, instead of claiming ownership over the rear
parking space on the basis of the undertaking, chose to claim only a
right to use the rear parking space in perpetuity, as altering the nature
and character of the suit, would, in my view, be an unduly restricted
manner of applying Order VI Rule 17, as either claim was predicated
on the undertaking and on the undertaking alone.
56. For the aforesaid reasons, I am unable to sustain the impugned
order dated 22nd October, 2021 passed by the learned Trial Court in
CS DJ 10306/2016. The impugned order is accordingly quashed and
set aside. The application for amendment, preferred by the petitioner
under Order VI Rule 17 CPC, is allowed.
57. No costs.
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Signing Date:04.07.2022
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58. Pending applications, if any, do not survive for consideration
and are accordingly disposed of.
C. HARI SHANKAR, J.
th
JULY 4 , 2022/dsn
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Signing Date:04.07.2022
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