Judgment:
ORDER
Vikramajit Sen, J.
1. I propose to dispose of this application filed by the Plaintiff under Order 6 Rule 17 read with Section 151 of the Civil Procedure Code for amendment of the plaint. The suit is for declaration, permanent plaint. The suit is for declaration, permanent injunction and mandatory injunction.
2. Three amendments are sought to be introduced into the plaint. Firstly, introduction of para 12 A which substantially lays the grounds for the grant of a mandatory injunction for the sale of 77256 shares of Godfrey Philips Ltd. which is presently held by a Trust in the name and style of Modipon Ltd. Senior Executives (Offices) Welfare Trust. Amendments 2 and 3 are merely the consequent changes in the valuation paragraph (Para 15) and the introduction of additional prayer. Ms. Mukti Chaudhary, learned counsel appearing on behalf of defendants 2, 3 and 5 made a statement that she has no objection to this application being allowed; however, it was vehemently opposed by Defendant Nos. 1 and 4, both of whom are Trustees.
3. The prayers in the plaint as it presently stands are as follows:
(a) a decree for declaration that Defendant No. 1 is not a fit and proper person to continue as trustee of Modipon Limited Senior Executive Welfare Trust;
(b) a decree directing that Defendant No. 1 is removed from such office by the orders of this Hon'ble Court;
(c) a decree of permanent injunction restraining Defendant No. 1 and/or his servants, agents and assigns from operating the saving account No. 9089 opened in Oriental Bank of Commerce, New Friends Colony, New Delhi.
(d) A decree by way of mandatory injunction restraining Defendant No. 1 from depositing the dividend/bonus shares received in future from GPI in the account opened by him with Defendant No. 6 at Delhi and simultaneously directing him to forward the same to the Secretary of the trust;
(e) A decree of mandatory injunction in favor of the plaintiff to direct Defendant No. 1 to handover the relevant Bonus Share Certificate in account No. 9089 and dividend amounting to Rs. 15,64,434.00, or any other amount of GPI to the Secretary of the Trust i.e. Defendant No. 5 herein;
If the proposed amendment is permitted the following prayer would be included:
'(b-1). Pass a Decree of Mandatory Injunction directing the Defendants to sell the shares of GPI held by the Trust and use the sale proceeds thereof for the benefit of the beneficiaries.'
4. There is a plethora of precedents pertaining to the grant or refusal of permission for amendment of pleadings. The various propositions are widely known and I do not propose to exhaustive by detail them here. Preeminent among these propositions is that amendments to pleadings should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice; too rigid an approach may dispense with justice. Rule 17 itself appears to mandate the Court to allow such amendments as may be necessary for the purpose of determining the real questions in controversy between the parties. It appears to preserve discretion to Court for allowing other amendments on such terms as may be just. If a watershed is to be found between allowing and refusing an amendment, on it would be found the inscription 'there is no injustice if the other side can be compensated by costs'. On the one side amendments must be allowed so as to enable the real question in issue to be brought forward, if they are prayed for bona fide. On the other side amendments; must be rejected: (i) if they are merely technical or useless and of no substance; (ii) Where the plaintiff's suit would be wholly displaced by the proposed amendment: (iii) Where the effect of the amendment would be to take away from the defendant a legal right which has accrued to him by lapse of time; (iv) Where the amendment would introduce a totally different; new and inconsistent case, and the application is made at a late stage of the proceedings and (v) where the application for amendment is not made in good faith. This distillation can be found in Mulla's Commentary to the Civil Procedure Code, and has been relied upon by Mr. Anil B. Diwan, learned Senior Counsel appearing for Defendant No. 1. The common link in all of them is that injustice will be caused if the amendment cannot be adequately compensated for by costs.
5. This application was argued in great detail by Shri Anil B. Diwan, learned Senior Counsel for Defendant No. 1 and by Shri V.P. Singh, learned Senior Counsel for Defendant No. 4. They relied on the following judgments:
1. Ramsaran Mandar & Ors., Vs . Mahabir Sahu, .
2. Kanda & Ors. v. Waghu AIR 1950 PC 68.
3. Kumaraswami Gounder & Ors. Vs . D.R. Nanjappa Gounder (dead) and Ors. : AIR1978Mad285 (DB).
4. Shri Muni Lal Vs . Smt. Niki Mansa Ram, .
6. Shri Dushyant Dave, learned Senior counsel appearing on behalf of Plaintiff relied on the following passage in the case of Jai Jai Ram Manohar Lal Vs . National Building Material Supply, Gurgaon, : [1970]1SCR22 which ought to be known by rote even by a fledgling lawyer :
'Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and however, late the proposed amendment the amendment may be allowed if it can be made without injustice to the other side.'
7. These decisions, of high authority, need to be applied to the facts of the present case. Arguing that the application falls on the prohibited side of the watershed Mr. Anil B. Diwan, learned Senior Counsel for Defendant No. 1 submitted that by allowing the mandatory injunction there would be a change in the cause of action.
8. On a plain reading, the grievance in the plaint is that the interests of the beneficiaries of the Trust, that is the employees, are not foremost in the minds of the trustees (defendants) but on the contrary have been totally subjugated by the personal interest of Defendant No. 1 who in his capacity as a Trustee is bound to perform and fulfill his fiduciary duties scrupulously. Numerous legal proceedings are pending between the K.K. Modi group and M.K. Modi group and the apple asset is the share holding in Godfrey Philips India. The gravamen of the plaint is that it would obviously be against the interests of Defendant No. 1 if the share of Godfrey Philips India presently held by the Trust are allowed to be freely dealt with. I am deliberately steering away from entering upon the controversial details in this forensic fight between the rival Modi group since, for the present, what falls for determination is only whether the amendment application should be permitted or rejected. When the Plaint is read as a whole, it cannot be appreciated how permitting the introduction of a prayer for the issuance of the mandatory injunction would amount in any manner to a change in the cause of action. The allegation of mishandling of the Trust by Defendant No. 1 is omnipresent in the plaint, and the proposed prayer is an attempt to overcome this hurdle. It cannot be accepted that the amendments are inconsistent with the existing plaint.
9. It was then argued that the amendment would be useless and of no substance since the Trust Deed postulates that decisions would be taken in unanimity. The argument proceeds that if this is accepted, then there would never be any unanimous decision on this question and, thereforee, in the face of the Trust Deed as it presently exists, the mandatory injunction cannot be issued. By an extrapolation of the gravamen of the plaint the only conclusion possible would be that Defendant No. 1 would never agree to the shares of the GPA being freely dealt with since according to the Plaintiffs, this would be adverse to his pecuniary interest. These arguments must also be rejected at least on two grounds. Firstly, the hour of decision of whether to allow the prayer for the issuance of a mandatory injunction has not yet arrived; and secondly when this hour of decision does arrive Section 92 of the Code of Civil Procedure and the provisions of the Trust Act sufficiently empowers the Court to override the Trust Deed, if circumstances so warrant. For the same reasons the argument that the amendment would be futile, if allowed, since, Clause 1A of the Trust Deed contemplates unanimous decision, cannot be accepted.
10. It was further argued that the application is mala fide and its intent is to destabilize the fortunes of the K.K. Modi group. I cannot also accept this argument for the reason that this critique would apply on all fours to the plaint, as much it applies as it may apply to the as it may apply to the application for amendment. The strain of the suit, even as it presently stand, would be the same as the application i.e. dislodging Defendant No. 1 from his control over the Trust and thereafter sell the shares of Godfrey Philips India. In the course of arguments I had asked Mr. Anil B. Diwan , learned Senior counsel for Defendant No. 1 whether the suit itself was mala fide and the forthright answer was that it was so. In fact he had argued that the counsel appearing for the plaintiffs were the same as those appearing for Shri M.K. Modi and that they were in all likely being financed by this group. If this is presumed to be correct, the I am of the view that the application cannot be rejected on the ground of mala fides.
11. Lastly it was stressed that the application was an abuse of the process of law inasmuch as its consequences would be to destabilize the carefully worked out solution given by the Supreme Court. I cannot also accept this argument for it presumes that by granting the amendment the prayer sought to be introduced is also being granted.
12. The arguments addressed by Shri V.P. Singh, learned Senior Counsel appearing for Defendant No. 4 required to be discussed. He has vehemently argued that the amendment is mala fide also for the reason that it seeks to undo the order dated 22.5.1998 wherein it was recorded that Defendant No. 1 had stated, that during the pendency of the suit, the shares and fixed deposits in question would not be transferred or assigned to any party, nor would they be subjected to any charge without the leave of the Court. Predicated on this statement the Plaintiffs application under Order 39, Rule 1 and 2 had been dismissed. There is some substance in this submission inasmuch as a consideration of the proposed prayer would have the effect of undoing these orders. However, it cannot be lost sight of, that these prayers are not identical and in any event the orders dated 22.5.1998 are only interlocutory. Hence it would not be right to decline permission to amend the plaint on this ground; Mr. V.P. Singh, learned Senior Counsel then submitted that the Plaintiffs represent only three employees out of 2000 employees who were prospective beneficiaries of the Trust. This argument also goes to the root of the plaint and would weigh in the prayers in the plaint are pressed upon. This would not in my view be an obstacle in the path of allowing the amendment prayed for. It was further argued on behalf of Defendant No. 4 that relief in the plaint is for the removal of Defendant No. 1 as Trustee and/or from control over the shares held by the Trust and that the prayer is in a mandatory form i.e. for the sale of these shares. In my opinion this would not result in changing either the cause of action or the nature of the suit.
13. I have also perused the precedents pressed by the non-applicants and for the reasons indicated above found that the ratios and reasonings in these judgments do not assist the non-applicants in their opposition to the grant of permission to amend the plaint.
14. The application is accordingly allowed.