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2006 DIGILAW 1123 (DEL)

N. S. CONSTRUCTION v. SOM DEV

2006-07-07

SANJAY KISHAN KAUL

body2006
SANJAY KISHAN KAUL, J. ( 1 ) ADMIT. AT request of Jearned Counsel for the parties, the petition is taken up for final disposal. The respondent filed a suit for recovery against the petitioners. The petitioners were granted a construction contract by M/s. Peico Electronics and Electrical Ltd. and some part of the work was sub-contracted to the respondent. The grievance of the respondent was that the petitioners had obtained good rates from M/s. Peico electronics and Electrical Ltd. and were not giving adequate compensation for the work carried out by the respondent. ( 2 ) THE suit for recovery was filed by the respondent in the year 1987. The written statement was filed in the year 1988. The respondent amended the plaint in terms of the orders dated 18. 8. 1992 and issues were framed in the year 1995. Thereafter testimony of the witnesses of both the sides was recorded and it is stated that even arguments were heard and written synopsis filed. It is at that stage that the respondent filed an application under Order 6 Rule 17 r/w Section 151, CPC seeking to amend the plaint. The application has been allowed in terms of the impugned order dated 22. 11. 2006 of the learned Additional District Judge which is now assailed by the petitioner in the present proceedings under Article 227 of the constitution of India. ( 3 ) LEARNED Counsel for the petitioner contends that the amendment sought for by the respondent arises from the allegation that the rates at which Peico paid the petitioners were unknown to the respondent till such time as the cross-examination of the witness of the defendant took place in August, 2002. It is only thereafter that the respondent came to know of the high rates granted to the petitioner which could form the basis or material for determination of the claim of the respondent. The amendment paragraph incorporates this allegation and thereafter sets forth the rates of which the petitioner got the benefit. ( 4 ) THE second aspect of the amendment is that the petitioner has denied certain work having been completed by the respondent while on the other hand it has come to knowledge now that the work was done and the petitioner was paid for the same and thus the work cannot be denied. ( 4 ) THE second aspect of the amendment is that the petitioner has denied certain work having been completed by the respondent while on the other hand it has come to knowledge now that the work was done and the petitioner was paid for the same and thus the work cannot be denied. ( 5 ) LEARNED Counsel for the petitioner states that very premise of the amendment and the substratum of the impugned order is fallacious as these rates were well within the knowledge of the respondent much earlier. A perusal of the order shows that the Trial Court has come to the conclusion that the respondent was not introducing a new case and that the rates charged by the petitioner could be of assistance to the Court to arrive at just conclusion. The Trial Court has also stated that the application is not belated since undisputedly the cross-examination of DW 1 was completed in the month of August, 2002 and the application was moved in the month of February, 2003. Thus the whole premise of the order is that these rates came to the knowledge of the respondent for the first time in August, 2002. Learned counsel for the petitioner has drawn the attention of this Court to Ex. PW 1/10 which is the running bill of the petitioner to M/s. Peico Electronics and Electrical ltd. This document has been filed by the respondent as its document along with the list of documents dated 19. 8. 1989. ( 6 ) A perusal of Ex. PW 1/10 shows that various items of work have been specified by the petitioners and the rates mentioned thereunder. For example, dismantling of brick work has been charged at the rate of Rs. 15 per square foot, earth work excavation at the rate of Rs. 4 per square foot; PCC 1:4:8 in Column pits at the rate of Rs. 20 per square foot and so on. The complete list of items of work has been set out in Ex. PW 1/10 as also the rates charged by the petitioner. This is what the respondent now seeks to incorporate by amendment. 4 per square foot; PCC 1:4:8 in Column pits at the rate of Rs. 20 per square foot and so on. The complete list of items of work has been set out in Ex. PW 1/10 as also the rates charged by the petitioner. This is what the respondent now seeks to incorporate by amendment. ( 7 ) IT is thus apparent that it was well within the knowledge of the respondent at least in 1989 as to the rates charged by the petitioner from M/s. Peico Electronics and Electrical Ltd. It may also be noticed at the stage that the Code of Civil procedure, 1908 is a complete Code and if the respondent was desirous of eliciting this information the respondent could always have invoked the provisions of the said Code including discovery and inspection of documents, relating to the running bills raised by the petitioner on M/s. Peico Electronics and Electrical Ltd. If so done, the consequences would follow. ( 8 ) INSOFAR as the second aspect is concerned, if the petitioner was disputing some work done by the respondent, it was for the respondent to lead appropriate evidence to show that the work had been completed. These are not matters which have come to light subsequently. Learned Counsel for the respondent seeks to rely upon the judgment of this Court in Suraj S. J. Bahadur v. Shakji S. J. Bahadur, 1995 (34) DRJ 224 , to contend that any amendment which is clarificatory in nature ought to be allowed. Similarly in V. C. Rishi v. S. L. Saluja and Ors. , 31 (1987) DLT 132, it has been observed that an amendment application clarifying and giving particulars of facts already stated in the pleadings is normally allowed because it helps the proper and effective determination of disputes between the parties. Learned Counsel for the petitioner on the other hand has referred to the judgment of this Court in Manmohan v. Shamlal, 2000 Rajdhani Law Reporter 119, to contend that a belated amendment was liable to be refused. To the same effect is the judgment in Jai Kishan Khanna v. M/s. Mela Ram Properties Pvt. Ltd. , 81 (1999) DLT 472, where the second amendment was rejected. Learned Counsel for the petitioner contends that the present case is also one of the second amendment. To the same effect is the judgment in Jai Kishan Khanna v. M/s. Mela Ram Properties Pvt. Ltd. , 81 (1999) DLT 472, where the second amendment was rejected. Learned Counsel for the petitioner contends that the present case is also one of the second amendment. ( 9 ) IN my considered view the relevant aspect is that the stage of the suit is of final hearing. If the contention of the respondent that these facts had come to the knowledge of the respondent only in August, 2002 was correct, some thing could be said in support of the impugned order. However, Ex. PW 1/10 leaves no manner of doubt that these facts were in the knowledge of the respondent as far back as 1989. The parties have led the evidence and now the lacunas which have been left in evidence cannot be filled in this manner. ( 10 ) A recent judgment of the Apex Court has succinctly set out the parameters to be followed in an application under Order 6 Rule 17 of the Code. In Rajesh kumar Aggarwal. v. K. K. Modi, III (2006) SLT 67= 2006 (4) SCC 385 , the supreme Court has observed that all amendments that may be necessary for determining the controversy between the parties should be al lowed provided it does cause injustice or prejudice to the other side. The rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice. Thus a Court would allow an amendment application unless it is satisfied that the party applying is acting mala fide. The Court is also liable to take notice of subsequent events in order to shorten litigation. ( 11 ) IF the aforesaid tests are applied to the facts of the present case, I am of the considered view that the application filed by the respondent fails to meet the test laid down by the Apex Court. The respondent has falsely set up a case that the facts which formed the basis of the amendment application came to the knowledge of the respondent in August, 2002. On the contrary these facts were to the knowledge of the respondent at least as far back as 1989. The respondent has falsely set up a case that the facts which formed the basis of the amendment application came to the knowledge of the respondent in August, 2002. On the contrary these facts were to the knowledge of the respondent at least as far back as 1989. It is trite to say that a party approaching the Court must do so with clean hands. As observed by the Apex Court, the jurisdiction to be exercised in case of an amendment to the plaint is jurisdiction of justice, equity and good conscious. I see no reason why the amendment should be permitted when the respondent has not correctly set forth the case insofar as knowledge is concerned and also slept over the matter over this long period of time till the final hearing was almost concluded. ( 12 ) SIMILARLY on the second aspect of the work being done by the respondent, it was for the respondent to lead evidence to establish that particular work was done by the respondent. ( 13 ) I am of the considered view that the impugned order suffers from patent errors on the face of it and in view of the aforesaid legal position cannot be sustained. ( 14 ) THE petition is allowed and the application filed by the respondent seeking amendment of the plaint is consequently rejected. Parties are left to bear their own costs. Interim orders stand vacated. The parties to appear before the Trial Court on the next date. CM No. 2680/ 2004 (for stay ). Dismissed. Petition allowed and Application rejected.