Saif-Ul-Islam Company, L.P v. Roshan Lal Arora

C.K Mahajan, J.:— This application has been filed by the plaintiff under Order 6 Rule 17 for amendment of the plaint.

2. The plaintiff has filed the suit for specific performance of agreement to sell dated 5th December, 1995 for sale of godown at ground floor in property No. T-222, measuring 9′ × 29, out of 68 sq. yds. situated at Ahata Kedara, Delhi with defendant No. 1.

3. It is stated that till the filing of the suit the occupation of the aforesaid godown was with defendant No. 1 who was running his own business of fireworks, charcoal etc. Thereafter possession was transferred to defendant No. 2 Mohd. Naeem. The plaintiff alleges that by 15th November, 1996 he had not known as to what is the real status of Mohd. Naeem, defendant No. 2 in acquiring possession of godown. It is alleged that the defendants filed their written statements and took common defence that the suit property was transferred on 10th September, 1996 to defendant No. 2 through usual registered and unregistered documents by defendant No. 1; the consideration amount for sale of godown was Rs. 45,000/-. It is alleged that the property of plaintiff namely Almirah containing his gas cylinders etc. in possession of plaintiff, sold by defendant No. 1 to defendant No. 2 knowingly and fraudulently, without having any title, right and interest to the same. It is stated that the documents dated 25th April, 1991 are the basis of ownership of godown of defendant No. 1 originally sold by Mohd. Raees. The said documents establish that the plaintiff is first and prior purchaser having concluded contractual right of sale in his favour. It is stated that the alleged registered and unregistered documents regarding sale of godown dated 10th September, 1996 are a total fraud committed mischievously to frustrate the plaintiff's original and prior contract i.e agreement to sell dated 5th December, 1995. It is further alleged that the consideration shown by the defendants is extremely inadequate and an indication of fraud and conspiracy.

4. The plaintiff alleges that prior to 15th September, 2000 he did not know authentically without original documents on record that the defendants have committed fraud despite having knowledge of the prior agreement to sell dated 5th December, 1995 for a sum of Rs. 5,40,000/-. Hence the subsequent alleged sale of the said godown for Rs. 45,000/- by defendant No. 1 to defendant No. 2 a prima facie fraud for an extremely inadequate consideration. It is alleged that the aforesaid facts prior to agreement to sell dated 5th December, 1995 vis-a-vis fraudulent documentary evidence regarding illegal sale dated 10th September, 1996 with notice to defendants are required to be stated in the suit.

5. The plaintiff seeks to amend the plaint by changing the parentage of defendant No. 1 as son of Shri Maya Dass in place of Shri Pershottam Dass wherever occurs in the plaint. The plaintiff further seeks to delete the averments made in para 11 (a) of the plaint and in its place seeks substitution of para 11 as set out at page 6 of the application.

6. The plaintiff also seeks to add the following sentence at the end of para 12 of the plaint but before last sentence beginning with, “The suit....” after the words “till date...”

“despite subsequent agreement and sale dt. 10.9.96 of the godown by defendant No. 1 in favour of defendant No. 2 fraudulently with notice of prior agreement.”

The plaintiff also prays for deletion of prayer I5(aa) and amendment in prayer (a) by deleting the word “defendant No. 1” and replacing it by words “both defendants” and adding the words “direct defendant No. 2” before words “deliver vacant.....”

7. The amendments sought for are opposed by the defendants No. 1 and 2. It is stated that the application is not maintainable and the same has been filed to harass the defendants as the plaintiff has got no right, title or interest in respect of the suit property. It is stated that there was no agreement between the plaintiff and defendant No. 1 and no money was received by defendant No. 1 from the plaintiff. It is stated that the plaintiff had moved an application for amendment of the plaint which was allowed. The plaintiff by way of the present application is trying to retract from his own earlier admissions. It is stated that the application is barred by time and the plaintiff is estopped from filing the present application inasmuch as earlier also he had added paragraph No. 11 (a) by way of amendment after the filing of the present suit. It is stated that the present application has been filed after approximately five years from the date the plaintiff came to know about the sale of the suit property by defendant No. 1 to defendant No. 2.

8. Moreover the amendments sought for are not material for determining the real controversy between the parties. The amendments seek to change the nature of the claim which is impermissible.

9. I have heard learned counsel for the parties.

10. Rule 17 of Order VI of the Code of Civil Procedure reads as under:-

“17. Amendment of pleadings

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:

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.”

11. It is settled law that all amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action. The proposed amendments should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. Hypertechnical approach should not be adopted and instead a liberal approach should be the general rule. A prayer for amendment can be rejected if the same is not bona fide.

12. The amendments appears to have been necessitated on account of the facts stated in the written statements by the defendants and the documents filed alongwith the written statements. These facts were not within the knowledge of the plaintiff at the time when he had moved the first application for amendment in the 1996 which was allowed by order dated 12th February, 1997. A clear picture appears to have emerged requiring amendment of the plaint. The applicant had also moved an application for production of original documents. The said application was allowed on 17th September, 1997. The original documents were filed only on 15th September, 2000. The registered/unregistered documents relied upon by the defendants with regard to the sale of the godown were placed on record by the defendants to frustrate the plaintiff's title It appears that the plaintiff was not aware of the entire facts and it was only when the written statements were filed by the defendants that a clear picture emerged.

13. In the facts and circumstances of the present case and the settled position of law, to my mind, the amendments are necessary for the purpose of determining the real questions in controversy and would not cause any prejudice to the defendants if the same are allowed. The proposed amendments sought to be made in the plaint do not change the nature of the suit.

14. Mere delay and laches in making the application for amendment is not a good ground for refusal of the amendment. Amendment is a discretionary matter and although amendment at a late stage is not to be granted as a matter of course, the court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed can be compensated by cost or otherwise. The general rule is that the party should not be allowed to set up a new case or cause of action. An error or mistake if not fraudulent should not be made a ground for rejecting the application for amendment of the plaint. Defective pleadings can be permitted to be cured subject to payment of costs.

15. As a matter of fact subsequent developments and altered circumstances are relevant in adjudging the nature and character of the claim made, at all stages of the proceedings and the Court should permit amendment bringing such subsequent developments and altered circumstances on the record. Evidence is in the present case is still to be led. Moreover, the amendments have been necessitated because of subsequent events and are necessary for proper adjudication of the disputes between the parties.

16. In light of the aforesaid discussion, the application is allowed with costs which are quantified at Rs. 5,000/-.

17. Let amended plaint be filed within four weeks. Written statement to the amended plaint shall be filed by the defendants within four weeks thereafter.