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2003 DIGILAW 1093 (PNJ)

Bhupinder Singh v. Balwant Kaur

2003-08-08

ADARSH KUMAR GOEL

body2003
JUDGMENT Adarsh Kumar Goel, J. - This revision petition arises out of an order refusing prayer for amendment of the plaint, seeking to correct date of agreement as 6.12.1989 as against 2.12.1989 originally mentioned in the plaint. 2. Suit has been filed for specific performance of agreement to sell and for injunction against alienation of the suit property in favour of any one else other than the plaintiff. In para 4 of the plaint, it was stated that agreement dated 2.12.1989 was executed between the parties whereby suit property was agreed to be sold to the plaintiff but the defendant backed-out and did not complete his part of the contract. The suit was filed on 27.5.1994. On 22.4.1999, the plaintiff filed application for amendment to change the date of agreement to sell as mentioned in the plaint. The application was opposed on the ground that the amendment had been sought at a belated stage and will change the nature of the suit. 3. The trial court dismissed the application for amendment holding that date mentioned in the document itself was 2.12.1989 and no explanation was given in the application as to why after so many years of filing the suit and after death of plaintiff as well as defendant, amendment was sought. 4. It is contended by the learned counsel for the petitioners that plaintiff went to Bangkok on 4.12.1989 and agreement was signed there on 6.12.1989 and even if the agreement carries date of 2.12.1989, unless amendment is permitted, the plaintiff will not be able to prove that agreement was dated 6.12.1989 in view of averment in the plaint that the agreement was dated 2.12.1989. It is also stated that only while examining the record, it came to notice of the plaintiff that the date of agreement was 6.12.1989 as plaintiff went to Bangkok only on 4.12.1989 and the agreement could not be of date earlier to that. It is further stated that the case is at the stage of plaintiffs service. It is also stated that amendment was of formal nature and no prejudice will be caused to the respondents and merely because amendment was sought at belated stage, was not enough to disallow the amendment which was necessary for just decision of the suit. It is further stated that the case is at the stage of plaintiffs service. It is also stated that amendment was of formal nature and no prejudice will be caused to the respondents and merely because amendment was sought at belated stage, was not enough to disallow the amendment which was necessary for just decision of the suit. In support of his submissions, learned counsel for the petitioners relied on Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and others, AIR 1957 SC 363, Tarsem Lal and another v. Shadi Ram and others, 1990(1) RLR 293 (P&H) , Pritam Singh v. Atma and others, 1993(1) PLR 648 (P&H) , Sampath Kumar v. Ayyakannu and another, (2002) 7 SCC 559 , Steel Authority of India Ltd. v. Dr. R.N. Jain and others, 2003(2) PLR (Delhi Section) 39, Tarlochan Singh v. Bhagwant Singh, 2003(2) RCR(Civil) 447 (P&H), Punjab National Bank v. Indian Bank and another, 2003(2) PLR 488 (SC) : and Time Warner Entertainment Company v. A.K. Das and others, 2003(2) RCR(Civil) 846 (Delhi High Court). 5. Learned counsel for the respondents submitted that revision petition was not maintainable after amendment of section 115 CPC. She supported the view taken in the impugned order that amendment could not be allowed in absence of any explanation as to why the amendment could not be sought earlier. She further submitted that amendment was malafide and if allowed, it will work injustice to the respondents which cannot be compensated by costs. In support of her submissions, she relied on B.K.N. Pillai v. P. Pillai and another, 2000(3) CCC 615 (SC), M/s. Estralla Rubber v. Dass Estate (P) Ltd., 2001(3) SCC 663 (SC) and Narendra Bahadur Singh v. Baijnath Singh and another, AIR 1981 Allahabad 410. 6. As regards the objection about maintenance of the revision petition, the same need not be gone into in view of the prayer by the learned counsel for the petitioners to treat this petition under Article 227 of the Constitution. 7. Principles for amendment of pleadings are settled. The court has discretion to allow any amendment necessary for the purpose of determining real questions in controversy between the parties on appropriate terms at any stage. 7. Principles for amendment of pleadings are settled. The court has discretion to allow any amendment necessary for the purpose of determining real questions in controversy between the parties on appropriate terms at any stage. This discretion is exercised by courts keeping in mind the interest of justice and if allowing of amendment causes prejudice to the opposite party which cannot be cured by payment of costs, such amendment is not to be allowed. 8. Applying these principles, I am of the view that though amendment has been sought at belated stage and it is not shown that in spite of due diligence, amendment could not be sought before commencement of the trial, allowing of the amendment would not work any prejudice to the respondents which cannot be cured by costs. No doubt, under proviso to Order 6 Rule 17, amendment cannot be allowed after trial has commenced unless it is held that in spite of due diligence, amendment could not have been sought before commencement of the trial. Even this requirement does not affect courts jurisdiction to allow amendment which may be necessary and which does not cause prejudice to the opposite party. In cases where party seeking amendment is not able to prove that in spite of due diligence, amendment could not be sought earlier, absence of due diligence will not take away courts jurisdiction if amendment is considered to be necessary for just decision of the case. Nature of amendment is formal. Fundamental nature of the suit is not changed. Evidence of plaintiff has still not been completed. Mere fact that the agreement bears the date of 2.12.1989 will also not be conclusive of the matter as by evidence, it can be shown that the correct date is 6.12.1989. Of course, the defendant-respondents will have full opportunity to show whether agreement was executed at all and if so on which date and court will be free to reach its own conclusion. Amendment will relate back to the date of the original suit and suit will not be time barred by permitting the amendment. It cannot be said that the amendment is being sought for any malafide or extraneous reason to delay the trial or to harass the respondents which may be a ground for declining amendment in the discretion of the court. 9. It cannot be said that the amendment is being sought for any malafide or extraneous reason to delay the trial or to harass the respondents which may be a ground for declining amendment in the discretion of the court. 9. Though, learned counsel for the parties have cited a number of decisions referred to above, detailed discussion of the said decisions is not necessary as the said decisions relate to principles which are well-settled. However, a brief reference is made to the said decisions. 10. In Pirgondas case (supra), principles that amendments necessary for determining real questions in controversy between the parties, which do not work any injustice to the opposite party, ought to be allowed, were reiterated after referring to previous case law on the subject. In Tarsem Lals case (supra), amendment was allowed to permit the petitioner to take alternative plea. In Pritam Singhs case (supra), it was held that there was no absolute legal bar for withdrawal of admission by amendment. In Sampath Kumars case (supra), distinction was made in pre-trial amendments which ought to be more liberal and in those sought after commencement of the trial. The reason for making distinction was that in the former, prejudice to defendant could be lesser as compared to latter category. In Steel Authoritys case (supra), amendment to implead a party as a necessary party was allowed. In Tarlochan Singhs case (supra), amendment, permitting subsequent events during pendency of the suit to be pleaded was, allowed. In Punjab National Banks case (supra), amendment to delete prayer for alternative relief in Indian rupees in lieu of US dollars was allowed to be deleted. In Time Warners case (supra), it was held that mere delay in making application was not a ground for refusal. In BKN Pillais case (supra), it was observed that inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed. Amendment should not cause such prejudice to the other side which cannot be compensated by costs. Amendment should not defeat a legal right accruing to the opposite party on account of lapse of time. Error or mistake, if not fraudulent, should not be made a ground for rejecting amendment. Amendment should not cause such prejudice to the other side which cannot be compensated by costs. Amendment should not defeat a legal right accruing to the opposite party on account of lapse of time. Error or mistake, if not fraudulent, should not be made a ground for rejecting amendment. In M/s Estralla Rubbers case (supra), it was observed that clear admission should not be allowed to be withdrawn by way of amendment and time-barred claim should not be allowed to be raised to take away valuable right of opposite party. In Narender Bahadurs case (supra), it was observed that where a fresh suit would have been time-barred, amendment should not be allowed to incorporate such a cause of action. For the above reasons, this petition is allowed. The impugned order is set aside and amendment sought is allowed. This will be subject to payment of Rs. 10,000/- to the respondents towards costs. Petition allowed.