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2006 DIGILAW 1791 (DEL)

NAVEEN KASHYAP v. RAJESH KUMAR

2006-10-05

SANJAY KISHAN KAUL

body2006
JUDGMENT Sanjay Kishan Kaut, J.-Admit. 1. At the request of learned Counsel for the parties, the petition is taken up for final disposal. 2. The petitioner No. 1 along with his father filed a suit for injunction against the respondent against dispossession from the business premises bearing No. 357, Site-I, Vikaspuri, New Delhi. It is averred in the plaint that the defendant was a friend of petitioner No.1 herein and was kept as a helper in the business premises mentioned aforesaid. Certain allegations were made in the plaint against the defendant and in nutshell, the disputes between the parties and an apprehension of dispossession gave rise to the suit. The defendant appeared in pursuance to the summons issued in the suit and the written statement was filed on the very first date. Interim orders of injunction have been granted in favour of the petitioners which have continued since then. 3. In the written statement, the respondent took the plea that he was a partner in the business. The partnership was stated to be oral. The respondent, however, filed an application under Order 5 Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Order") dated 15.12.1999 seeking to amend para 3 of the preliminary objection of the written statement. The respondent sought to withdraw the allegation of an oral partnership and to substitute the same with the allegations of an agreement of understanding arrived at on 15.5.1992 with the father of petitioner No.1 and the same had been reduced into a partnership deed dated 4.8.1992. Photocopies of the said two documents were sought to be brought on record and it is stated that the originals are in the custody of the petitioners. It may be noticed that the father of petitioner No. 1 passed away during the pendency of the suit and other legal heirs were brought on record as petitioner Nos. 2 to 4. The petitioners contested the application and alleged that there was no such original documents in their custody and that the alleged copies of these two documents were forged and fabricated. 4. The application came up for hearing on 25.4.2001 when the Counsel for the respondent sought to withdraw the application for amendment and the same was dismissed as withdrawn. 5. The petitioners contested the application and alleged that there was no such original documents in their custody and that the alleged copies of these two documents were forged and fabricated. 4. The application came up for hearing on 25.4.2001 when the Counsel for the respondent sought to withdraw the application for amendment and the same was dismissed as withdrawn. 5. There was silence thereafter for almost two years when an application dated 6.2.2003 was filed by the Counsel for the respondent seeking restoration of the earlier application dated 15.12.1999 for amendment of the written statement. In the said application, it has been averred that the respondent was not satisfied with the performance of his Counsel and engaged a new Counsel who inspected the judicial record and it is only thereafter, it transpired that the order dated 25.4.2001 had been passed. The earlier application was thus sought to be restored or in alternative it was prayed that the respondent should be permitted to prove the two documents referred to above. It may be noted at this stage that even when the amendment application was filed, the allegation was made that since the written statement was drafted in a hurry, the respondent could not bring to light the two documents in question. This subsequent application was also withdrawn on 2.6.2004. The statement of the Counsel for the respondent was recorded that he wished to withdraw the application for restoration of the amendment application and he wanted to file a fresh amendment application. 6. The respondent thereafter filed another application for amendment, dated 30.7.2004 seeking to amend the written statement in the same terms as was sought to be done by the earlier application. This application has been allowed by the impugned order dated 22.12.2004. 7. The learned Trial Court has come to the conclusion that the factum of partnership between the parties was alleged even in the original written statement albeit being an oral partnership. Even if the documents were alleged to be forged and fabricated, an opportunity would be available to the parties to prove their respective cases. 8. I have considered the submissions advanced by the learned Counsel for the parties. 9. It is trite to say that law on amendment is extremely liberal. Even if the documents were alleged to be forged and fabricated, an opportunity would be available to the parties to prove their respective cases. 8. I have considered the submissions advanced by the learned Counsel for the parties. 9. It is trite to say that law on amendment is extremely liberal. In fact, in a recent judgment of the Apex Court in Rajesh Kumar Aggarwal v. K.K. Modi and Ors., III (2006) SLT 67=II (2006) CLT 62 (SC)= (2006) 4 SCC 385 , it has been held that the object of the provision is to facilitate the Court to try the merits of the case and, thus, all amendments that may be necessary for determining real question between the parties should be permitted provided they cause no injustice or prejudice to the other side. It was observed that the Court always gives the opportunity for amendment unless it is satisfied that it is mala fide. It is within this parameter that the present case is to be examined. 10. It is no doubt true that an oral partnership was alleged in the original written statement. The allegation was sought to be withdrawn and to be substituted by an allegation of a registered partnership deed arising from a written understanding. These two document were then sought to be set up for the first time. However, it cannot simultaneously lost sight of that the respondent preferred an earlier application for amendment dated 15.12.1999 and after about one and a half years withdrew the same unconditionally. There was silence for almost two years till the application was filed seeking restoration of the earlier application. Even this application was withdrawn though the learned Counsel for the respondent contends that this was on an understanding that a fresh application for amendment would be filed, though no specific liberty was granted by the Trial Court. Even if this plea was to be accepted the fact remains that there was no justification for withdrawal of the earlier application and then a subsequent application was filed after two years not for a different amendment but for the same amendments. A party cannot be permitted to keep on filing applications for amendment seeking the same a amendment after not pressing the earlier application. A party cannot be permitted to keep on filing applications for amendment seeking the same a amendment after not pressing the earlier application. This would give rise to a situation that where a Court may not be inclined to permit an application and as the application is withdrawn and thereafter a chance is taken to move another similar application subsequently before another learned Judge. Such a practice cannot be encouraged. 11. In my considered view, the subsequent application filed by the respondent falls within the category of malafide act by the respondent seeking to amend the earlier written statement. No reason has been stated as to why the earlier amendment application was withdrawn and the matter reagitated after two years. The practice of blaming Counsel for such a situation cannot be encouraged or accepted. In the present case, the application for restoration of the amendment application I was filed almost two years after the earlier application had been withdrawn. 12. In view of the aforesaid, I am of the considered view that the Trial Court has committed a patent error and has erroneously exercised jurisdiction vested in it by law. 13. The impugned order is set aside leaving the parties to bear their own costs. CM No. 4367/2005 14. No further orders are required in the application and the application stands disposed of. Ordered accordingly.