Jurisdiction of the court to allow either party to amend his pleadings at any stage necessary for solution of real question

* THE HIGH COURT OF DELHI AT New Delhi

Date of Decision: 09.08.2012

+CM (M) 227/2010 with CMs 2958/2010, 2959/2010,

13438/2010, 15302/2011 and CM 12417/2012

PRASHANT NARULA & ANR. …… Petitioners

Through: Mr. Rajiv Bansal with Mr. Rajan Tyagi, Advocates.

Versus

MCD …… Respondent

Through: Mr. Saroj Bidawat, Advocate and Mr. A.S.T. Simray, Adv. for MCD. Mr.P.D.Gupta, Adv. for the applicant in CM 12417/2012.

+CONT.CAS(C) 727/2011 PRASHANT NARULA & ANR ..... Petitioner

Through: Mr.Rajiv Bansal, Adv. with Mr.Rajan Tyagi, Adv.

Versus

KS MEHRA & ANR ..... Respondent

Through: Mr. Saroj Bidawat, Advocate and Mr. A.S.T. Simray, Adv. for MCD.

CORAM: HON’BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This petition under Article 227 of the Constitution of India is directed against order dated 06.01.2010 of Additional Senior Civil Judge, Rohini District Courts, Delhi whereby he allowed an application under Order 6 Rule 17 CPC of the respondent.

2. The petitioners had filed a suit for declaration and permanent injunction against the respondent MCD on the averments that plaintiff No. 2 (petitioner No. 2 herein) is the owner of plot in Khasra No. 262, 258 & 217/4 in village Bharola, Delhi, but, the MCD was allowing some persons to use the same for marriage purposes. Declaration was sought to the effect that the MCD had no right or interest in this plot and so should be restrained from raising any construction thereon. The MCD had filed written statement stating to be running an Ayurvedic dispensary on the aforesaid plot for the welfare of the people. According to the MCD the suit plot was not identifiable as there was no property number and locality mentioned in the plaint and the site plan filed by the plaintiff was misleading. The MCD, however, while stating that the suit plot bears No.342, 343, 408 and 409, C-Block, Majlis Park, reserved its right to file amended written statement, as and when specific and better particulars of the property were provided. The trial of case reached at the stage of final arguments. At this stage, the learned trial Judge observed the property not being properly identified, he appointed a Local Commissioner to visit the suit property for identification as regard to its municipal number and possession etc. On the receipt of report of Local Commissioner, the MCD filed an application seeking amendment in the written statement stating that it has come to know that the suit property is not where the Ayurvedic Dispensary is being run, but, is a plot in the possession of Horticulture Department of MCD. It was also stated that it was this plot which was being booked by MCD for the purposes of marriages and social functions, being a park looked after and maintained by the MCD. The sought amendment was averred to be relevant and necessary for the just decision of the case.

3. The learned Trial Court allowed the application subject to certain costs. The trial judge precisely reasoned as under:

“In the case before me once it is shown on record that MCD since beginning was contesting this case on the averments that the suit property is a plot where they are running an Ayurvedic Dispensary in C-Block of Majlis Park and subsequently they found that the suit property is not an Ayurvedic Dispensary but a plot under their Horticulture Department, it can be said that the parties are contesting this case since inception for two different properties. The plaintiff was contesting for an open plot whereas MCD was contesting on a plot where an Ayurvedic Dispensary is being run by them. This fact can also be noticed from the earlier written statement filed by the MCD which clearly shows that suit property is not identifiable and they reserved their right to file amended written statement as and when the same is identified, which as per this application was done only after appointment of a Local Commissioner by this court and therefore the amendment sought for falls within the secondpart of order VI rule 17 CPC which is imperative in nature.”

4. The impugned order is assailed by the petitioners mainly on the grounds that by the proposed amendment the MCD was seeking to resile from its earlier stand and set up a new case that the suit property was a park and not a plot where it was running the Ayurvedic Dispensary. The amendment was also opposed on the ground that it is barred under proviso to Order 6 Rule 17 CPC, since the trial has already concluded and the case was at the stage of final disposal. Learned counsel submitted that as per proviso to Rule 17, no application for amendment could be entertained after the trial has commenced, unless it was proved that the facts sought to be raised by way of the amendment could not have been raised despite due diligence. He submitted that there is neither any averment in this regard made by the MCD, nor any finding by the Trial Court on this jurisdictional aspect. The learned counsel relied upon the decisions of the Supreme Court in Vidyabai & Ors. Vs. Padmalatha & Anr., AIR 2009 SC 1433 and Ajendraprasadji N. Pande & Anr. Vs. Swami Keshavprakeshdasji N. & Ors., AIR 2007 SC 806. The ratio of the decision of Ajendraprasadji N. Pande (supra) was reiterated in the case of Vidyabai & Ors. (supra). It was held that proviso appended to Order 6 Rule 17 CPC restricts the power of the Court by putting an embargo on the exercise of jurisdiction in allowing amendment after the commencement of the trial, unless the Court comes to the conclusion that in spite of due diligence the parties could not have raised the matter after the commencement of the trial. In both these cases the facts sought to be raised by way of amendments by the appellants were well within their knowledge on their court cases and that manifested the absence of due diligence on the part of the appellants, disentitling them to the relief of amendment.

5. In the case of Rajesh Kr. Aggarwal Vs. K.K. Modi, AIR 2006 SC 1647, the Supreme Court held thus:

“16. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 17. Order VI, Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. 19. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused.”

6. In view of the proposition of law, as noted hereinbefore, it is noted that the petitioners had filed the suit in respect of a plot which the MCD was allowing the public to perform functions. In the written statement, that was filed by the MCD, the foremost plea was that the suit property was not identifiable; the property number and the name of the locality being not mentioned in the plaint as also in the site plan. The MCD had filed the written statement stating the suit property to be bearing number, as noted above, C-Block, Majlis Park. It is also noted above that according to the plaintiff the suit plot was in Khasra No. 262, 258 & 217/4 in village Bharola, Delhi. It was only at the stage of final disposal that the trial Judge found handicapped without the proper identification of the suit property; that he had to appoint a Local Commissioner for ascertaining its identification. It was from the report of the Local Commissioner that the MCD came to know that the suit property was not the one where Ayurvedic Dispensary was there, but, it was a park which was being given by it to the public for marriage purposes. The learned trial Judge in his observations, as reproduced above, noted that the MCD has been contesting the case on the averments that the suit property is a plot, where they are running a Ayurvedic Dispensary in Majlis Park, whereas, they subsequently found the same to be under the Horticulture Department. Both the parties had been contesting about two different properties. The plea regarding the suit property being not identifiable because of the lack of required particulars was already taken by the MCD in the written statement. Though, the MCD could have been more vigilant and careful instead of continuing to maintain for considerable time, but the contest was in respect of the property where MCD was permitting marriages. The identity of the suit property could only be ascertained on the report of Local Commissioner. Though, there has been considerable delay in moving the application for amendment, that itself being untouched by any fraud or malice, cannot be a ground for rejection of the application. No prejudice could be said to have been caused to the petitioners except for the delay for which they have been adequately compensated. In this regard, reference can be made to decision of Supreme Court in Sampath Kumar Vs. Ayyakannu, (2002) 7 SCC 339, which reads thus:

“9. 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 and on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In the former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No straitjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.”

7. The amendment which is sought, is just and necessary for the solution of the real controversy between the parties. The Supreme Court also in the case of B.K. Narayana Pillai Vs. Parameswaran Pillai and another, (2000) 1 SCC 712 held that though the principles equally applied to the amendment of plaint as well as written statement, however, as prejudice less likely to arise in case of amendment of written statement, courts are more generous in allowing such amendments.

8. In view of above discussion, I do not find any infirmity or illegality in the impugned order. Consequently, the petition and all the pending applications stand dismissed. In view of the petition [CM(M) 227/2010] having been dismissed as above and the order allowing the amendment having been maintained, nothing survives in the contempt petition being Cont. Cas (C) 727/2011 and it also stands dismissed.

M.L. MEHTA, J.