Judgment:
$~11 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:
7. h August, 2014 + I.A.No.4821/2014 (Order VI Rule 17 CPC) in CS (OS) 347/2010 ARVIND GARG ..... Plaintiff Through: Mr.Lalit Gupta, Mr.Jatin Kumar and Ms.Garima Goel, Advocates. versus NEETA SINGHAL Through: ..... Defendant Mr. Shoeb Shakeel, Advocate. CORAM: HON'BLE MR. JUSTICE G.P. MITTAL G.P. MITTAL J.
(ORAL) 1. This is the third application under Order 6 Rule 17 CPC preferred by the Plaintiff. The first application was dismissed as withdrawn with liberty to file a fresh application. According to the learned counsel for the Plaintiff, since explanations about income, financial status and acquisition of the properties were to be given, a second application for amendment of the plaint was moved which came to be dismissed on merits by this court by an order dated 06.12.2013.
2. During hearing of the earlier said second application, it was urged by the learned counsel for the Plaintiff that by virtue of the amendments, the Plaintiff was not withdrawing any of his submissions and the nature of the plaint remained the same. It was stated that only additional reliefs of possession and rendition of accounts was being sought, though this averment of the Plaintiff was objected to by the learned counsel for the Defendant. However, nothing was pointed out by the learned counsel for the Defendant to show whether any submission was withdrawn or whether any relief was claimed vide amendment which was barred by limitation. Para 9 of the order dated 06.12.2013 is extracted hereunder:
“9. First I deal with the submissions of the learned counsel for the plaintiff, namely, that by the present amendment application, no relief which is barred by time is sought to be added, no admission is sought to be withdrawn and that the nature of the plaint after the amendments remains the same. Learned counsel for the defendant has controverted this contention. However, when it was requested to the learned counsel for the defendant to point out as to what portion of the proposed amendments tends to change the nature of the case, he was unable to do so.”
3. However, while dismissing the application, this Court observed that the amendments sought would be permissible only under Section 151 CPC under special circumstances and not under Order 6 Rule 17 CPC. Para 19 of the order is extracted hereunder:
“19. What the plaintiff actually intends to do is not really alter or amend the pleadings but replace the entire pleadings with altogether new pleadings. In my view, complete replacement of old plaint with a completely new plaint is not permitted under Order 6 Rule 17 CPC. It may be possible to permit such a change in certain special circumstances under section 151 CPC. But no such special circumstances are pleaded or argued.”
4. By virtue of the present application, again the Plaintiff wants to replace almost the entire plaint, however, during hearing of the application, it is submitted by the learned counsel for the Plaintiff that the Plaintiff may be permitted to amend only paras 14 to 18 of the plaint, the prayer clause and the cause title.
5. The special circumstances now pointed out by the learned counsel for the Plaintiff seeking the amendments are stated in para 34 on pages 55 to 59 of the amendment application. The sum and substance of the special circumstances is that most of these facts which existed at the time of filing of the suit were brought to the notice of the original counsel Mr. B.R.Sharma, but the said counsel was of the view that these details were not required as the same were matters of evidence. It is stated that thereafter, the Plaintiff suffered various chronic ailments and subsequently suffered a major heart attack in February, 2011 and underwent angioplasty in Sir Ganga Ram Hospital.
6. The application for amendment is opposed by the learned counsel for the Defendant but as pointed out by this Court in the order dated 06.12.2013, para 9 of which has been extracted earlier, it has not been pointed out by the learned counsel for the Defendant by amendment, whether any submission made by the Plaintiff is sought to be withdrawn or the relief, i.e. the relief of possession, now being sought, is barred by limitation.
7. Since the learned counsel for the Plaintiff during the course of hearing confined the application only to the amendments in paras 14 to 18 of the plaint, the prayer clause and the cause title as mentioned in para 11 of the application, it cannot be said that the Plaintiff now seeks to replace the entire plaint. It is stated by the learned counsel for the Plaintiff that the sale deed in respect of the Bahadurgarh property was executed by the Defendant only after filing of the suit. It is urged that as per legal advice, it has become necessary to seek the relief of possession of all the properties, rendition of accounts and permanent and mandatory injunction against the Defendant.
8. Admittedly, the trial of the suit is yet to begin. The sum and substance of the case set up by the Plaintiff is that the suit properties were purchased by him either in joint name with Defendant no.1(his wife) or in the name of Defendant no.1(his wife) only out of the funds provided by him. The Plaintiff, by virtue of the amendment stated in para 11 of the application wants to change the cause title of the suit by making addition of the reliefs of rendition of accounts and possession. By virtue of the amendment as stated in paras 11 and 25 to 35 of the application, the Plaintiff wants to amend paras 14 to 18 of the plaint. He has made averments to show as to how he is entitled to declaration, rendition of accounts and possession of the properties which are the subject matter of the suit.
9. It is well settled that the Court should allow all amendments that may be necessary for determining the real question and controversy between the parties provided that it does not cause injustice or prejudice to the other side. The Defendants have not been able to show any prejudice that may be caused to them by amendment of these paras. The basic structure of the suit will not be altered by the proposed amendments. The Plaintiff is not debarred from seeking the reliefs of rendition of accounts and possession on the same basic facts as are pleaded in the plaint seeking reliefs of permanent injunction and mandatory injunction. Moreover, truthfulness or falsity of the averments sought to be included by way of amendment is not to be seen at the time of deciding the application for amendment. No special circumstance need be pointed out as now the Plaintiff has merely confined his prayer to the amendments as mentioned in paras 11 and 25 to 30 of the amendment application.
10. Since no new case is sought to be set up, the Plaintiff is permitted to amend the cause title of the plaint as stated in para 11 of the application and amend paras 14 to 18 of the plaint as stated in paras 25 to 30 of the application seeking amendment, subject to payment cost of Rs.5,000/-.
11. The application stands disposed of. CS (OS) 347/2010 12. The amended plaint shall be taken on record subject to filing of the proper Court fee. Let amended plaint be filed within four weeks. Written statement be filed within four weeks thereafter.
13. List before the Joint Registrar for completion of pleadings on 17th November, 2014.
14. List before the Court on 9th February, 2015. (G.P. MITTAL) JUDGE AUGUST07 2014 mr