Judgment:
Mahmood Ali Khan, J.
1. This revision petition is filed by the petitioner, who is the plaintiff in the suit, assailing the order of an Additional District Judge dated 4.12.2000 whereby he had dismissed his application filed under Order 6 Rule 17 CPC and had declined to allow an amendment in the plaint.
2. Briefly stated the facts are that the plaintiff has filed a civil suit for recovery of Rs. 4,00,000/- from the defendant Mr. R.K. Jha, Assistant Commissioner of Police, Vivek Vihar, Delhi as damages for causing mental injuries and defamation. It is alleged that he is owner of a property in village Karkardooma. He filed a civil suit against the DDA in which interlocutory injunction was granted. During the pendency of the civil suit the defendant, the then ACP, Vivek Vihar tried to demolish the suit property in contravention of the injunction order. He also caused harassment to the plaintiffcausing him mental injury and defamation for which he was liable to pay the damages. It was submitted that a permission was also sought from the competent authority for filing the suit but no reply has been received.
3. The defendant contested the suit and raised diverse pleas in the written statement. Inter alias it was pleaded that the suit did not disclose any cause of action and was liable to be dismissed under Order 7 Rule 11 CPC. It has not been filed within three months from the date of the act complained of as required by Section 140 of the Delhi Police Act. One month's noticemandated by this provision has not been served. The permission of the Lt. Governor has also not been obtainedso the suit is barred by Section 53 of Government of NCT of Delhi Act and Section 80 of the CPC. On merit lso the defendant has refuted the allegations of the plaintiff that he has contravened the injunction order or tried to demolish the property or caused mental injury or defamation etc. to the plaintiff or that he was required to pay any damages.
In the replication the plaintiff reiterated his own case.
Two preliminary issues were framed by the court which are as under:-
1) Whether the plaintiff has served a legal and valid notice Under Section 140 D.P. Act?(OPP).
2) Whether the suit is within limitation?(OPP).
4. Thereafter the plaintiff filed the instant application under Order 6 Rule 17 CPC for carrying out amendments in various paragraphs of the plaint. The proposed amendment has been specified but the material change which the plaintiff wants to bring about in the plaint is in the allegation that whatever acts of the defendant were complained of were done by him in his personal capacity. For this reason the proposed amendment need not be reproduced.
5. The application is strongly opposed by the defendant and it is stated that the defendant wanted to wriggle out of his earlier stand that the damages were recoverable from Mr. R.K. Jha, ACP who was acting in his official capacity. It is submitted that the proposed amendment would change the nature of the suit.
6. The learned Additional District Judge considered the submissions made by the parties and has held that the proposed amendment is malafide as the case of the plaintiff was that the defendant in his capacity as ACP had committed the offending act and was liable to pay damages for it. He also held that the proposed amendment if made would change the entire nature of the case and the capacity of the defendant in which the plaintiff has sued him.
7. Counsel for the plaintiff has argued that in the title of the suit the defendant has given the name of the defendant as 'Sh. R.K. Jha, s/o not known, r/o not known, c/o ACP, PS Vivek Vihar, Delhi'. He submitted that in the body of the plaint also he wanted to specify that the defendant was being sued in personal capacity and that it would not change the nature of the suit.
8. The counsel for the plaintiff has wrongly stated that in the title of the suit the name of the defendant has been shown as 'Sh. R.K. Jha, s/o not known, r/o not known, c/o ACP. Vivek Vihar, Delhi' because it is so written in the amended plaint which was to be filed after the amendment application was allowed. In the original plaint the defendant has been named as 'Shri R.K. Jha, Assistant Commissioner of Police, Vivek Vihar, Delhi'.
9. But the question arises whether the amendment as proposed can be allowed in the plaint. The plaintiff has sued the defendant for recovery of damages for some acts committed by him while he was acting as ACP. Certain acts have been imputed to him as contravention of the injunction order and causing harassment etc to the petitioner. The nature of the suit for damages would not change only because the plaintiff wanted to add the words 'in personal capacity' wherever he hasmentioned about the action taken against him by the respondent ACP. There is no other material change in the pleading.
10. Law of amendment of the pleadings is now well settled by a catena of decision of the Supreme Court and this Court. Under Order 6 Rule 17 CPC, the pleadings, the plaint or the written statement, may be allowed to be altered and amended it at any stage of the proceedings, which may be necessary for the purpose of deciding the real question in controversy betweenparties on such terms as may be just. Even a delayed amendment, if required for just decision of the question involved and which does not cause irretrievable injury to the opposite party may be allowed to be made in the pleadings, in case the court is satisfied that the party applying for amendment is not guilty of gross delay and laches and the amendment is not sought for malafide reasons and ulterior motives. The Supreme Court B.K. Narayana Pillai v. Parameswaran Pillai and Anr. : AIR2000SC614 summed up the proposition of law onamendment of pleadings as under:-
'The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in suchmanner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of theproceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. Itis true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equallytrue that the courts, while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be thegeneral rule particular in cases where the other side can be compensated with costs. Technicalities of law should notbe permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in thepleadings to avoid uncalled for multiplicity of litigation'.
11. In the instant case the plaintiff wants to add in the plaint that the acts complained against were perpetrated by the defendant in his personal capacity leaving his original pleading that all these acts were done by him since he happened to be the ACP of the area intact. thereforee, it is not a case where it could be said that the plaintiff is withdrawing an admission made or pleading a new case which may unjustifiably injure rights accrued to defendant. The object of the rule of procedure is to decide rights of parties and not to punish them for their mistake. To my considered view the proposed amendment will not change the nature of the suit itself. Whatever defense is available to the defendant now will still be available to the defendant even after amendment.
12. Having regard to the above discussion and the law as laid down in the case law cited there is clear error of jurisdiction, illegality and irregularity in exercise of jurisdiction by the learned Additional District Judge.
13. Accordingly, the petition is allowed and the order dated 04.12.2000 is set aside and the amendment as proposed in the application is allowed to be made in the plaint by the plaintiff subject to the payment of Rs. 3000/- as cost to the defendant. The cost shall be paid and the amended plaint shall be filed by the plaintiff before the trial court on 16.5.2002. The parties shall appear before the trial court on that date.