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2015 DIGILAW 1017 (DEL)

Manoj Kumar v. Rajinder Singh Sawhney

2015-04-16

HIMA KOHLI

body2015
JUDGMENT : Hima Kohli, J. 1. On the last date of hearing, counsel for the plaintiff was requested to examine as to whether the present suit as filed would be maintainable when three different sets of causes of action have been clubbed in one suit and the plaintiff has sought separate reliefs against each of the three defendants in respect of three separate Agreements to Sell executed for sale/purchase of different parcels of land. 2. Today, learned counsel for the plaintiff points out that the Agreements to Sell executed between the plaintiff and the three defendants are dated 21.11.2005 qua the defendant No. 1 and dated 30.11.2005 qua the defendants No. 2 and 3 and the parcels of land in question are situated in village Badarpur Khadar, Burari. She submits that the defendants No. 1 and 2 are the Directors of the defendant No. 3/company and all the three defendants are owners of different parcels of land situated in the same village in respect whereof the plaintiff had entered into separate Agreements to Sell that are the subject matter of the present suit. It is thus clarified that as the three Agreements to Sell were a part of a series of transactions in respect of different parcels of land, all situated in the same village, the present suit as instituted would be maintainable. 3. The Court is satisfied with the explanation offered by the counsel for the plaintiff and the case is proceeded with insofar as the present application for seeking amendment of the plaint is concerned. 4. The present application has been filed by the plaintiff praying inter alia for permission to amend the plaint. 5. Before dealing with the submissions made by the learned counsel for the plaintiff, it is relevant to note that the suit was instituted on 26.03.2008. After the pleadings were completed, issues were framed on 18.04.2009 on which date, the parties were directed to file their list of witnesses within four weeks and produce the affidavits way of evidence within eight weeks. With these orders, the suit was directed to be placed before the Joint Registrar on 18.08.2009. On 18.08.2009, the learned Joint Registrar had recorded that none of the parties had complied with the order dated 18.04.2009 and last opportunity was granted to them to make compliances within two weeks. 6. With these orders, the suit was directed to be placed before the Joint Registrar on 18.08.2009. On 18.08.2009, the learned Joint Registrar had recorded that none of the parties had complied with the order dated 18.04.2009 and last opportunity was granted to them to make compliances within two weeks. 6. On 15.10.2009, as the affidavit by way of evidence filed by the plaintiff was not on record, last opportunity was granted to the plaintiff to file his affidavits, subject to payment of costs of Rs. 3,000/- and the case was renotified for 18.01.2010 for examination/cross-examination of the plaintiff’s witnesses. On 18.01.2010, it was recorded that the affidavits by way of evidence of PW Manoj Kumar, PW, Ashok Kumar and PW, Hari Kishan had been filed and the same were taken on record and the case was adjourned to 20.04.2010 for recording the testimony of the plaintiff’s witnesses. The cross-examination of the plaintiff had commenced on 14.11.2011 and his further cross-examination was deferred from time to time for the reason that in the interregnum, counsels for the parties had stated that they were exploring the possibility of a settlement, as recorded in the order dated 04.08.2010. 7. Thereafter, on 31.03.2011, counsels for the parties had stated that a compromise could not be arrived at between their clients and the suit was placed before the Joint Registrar on 8.7.2011 for recording the cross-examination of the plaintiff’s witnesses. However, the plaintiff had failed to turn up for his cross-examination on the date fixed and on the subsequent dates and repeated costs were imposed on him by the learned Joint Registrar. Finally, on 29.01.2014, when the case came up before the Joint Registrar for recording the plaintiff’s evidence, Ms. Neha Kapoor, learned counsel for the plaintiff had submitted that certain typographical errors were discovered in the plaint and she proposed to file an amendment application. The present application came to be filed by the plaintiff on 10.02.2014. 8. The explanation offered for seeking amendment of the plaint is that certain typographical errors have crept therein, due to which the defendants have been wrongly described in paras 2 and 3. The present application came to be filed by the plaintiff on 10.02.2014. 8. The explanation offered for seeking amendment of the plaint is that certain typographical errors have crept therein, due to which the defendants have been wrongly described in paras 2 and 3. Learned counsel states that in para 2 of plaint, instead of mentioning the name of the defendant No. 2, the defendant No. 1 has been typed out and in para 3, instead of mentioning the name of the defendant No. 1, the name of defendant No. 2 has been wrongly typed out. Additionally, the plaintiff seeks to amend para 6 of the plaint by substituting the total sale consideration mentioned as Rs. 1 crore, with the figure, Rs. 82 lacs. 9. Counsel for the plaintiff states that it is not understandable as to how the previously engaged counsel for the plaintiff had miscalculated the total sale consideration, subject matter of the three Agreements to Sell executed by the three defendants and had mentioned the figure of Rs. 1 crore in para 6 of the plaint whereas the correct figure is Rs. 82 lacs. She submits that it has been specifically averred in para 8 of the application that as per three separate agreements executed between the plaintiff and the defendants, the total land measuring 41 acres was agreed to be purchased by the plaintiff @ Rs. 1.5 lac per acre but subsequently, the defendant No. 2 had changed the land rate to Rs. 2 lacs per acre and on the said basis, the total sale consideration comes to Rs. 82 lacs. Learned counsel states it is on account of the aforesaid errors that have crept in the plaint that the plaintiff has had to file the present amendment application. 10. The present application is resisted by the defendants, who have filed their reply in opposition thereto. Counsel for the defendants states that the application is not maintainable in view of the proviso to Order VI Rule 17 CPC, which stipulates that no application for amendment shall be allowed after the trial has commenced. He states that the trial had commenced in the present case as long back as on 14.11.2011 and it is on account of procrastination on the part of the plaintiff that his cross-examination has not been completed though his evidence-in-chief has already been taken on record and he has been partly cross-examined thereafter. He states that the trial had commenced in the present case as long back as on 14.11.2011 and it is on account of procrastination on the part of the plaintiff that his cross-examination has not been completed though his evidence-in-chief has already been taken on record and he has been partly cross-examined thereafter. He contends that the plaintiff cannot lay the entire blame at the door of the previous counsel for the alleged inaccuracy in mentioning the total sale consideration in the plaint when the present counsel was engaged by the plaintiff as long back as in the year 2012. He concludes by submitting that if the present application is allowed, it would result in nullifying the plaintiff’s cross-examination that has already conducted by the defendants and material discrepancies have emerged therein. 11. In rejoinder, counsel for the plaintiffs seeks to explain that though she had been engaged by the plaintiff in the year 2012, the parties had remained in a settlement mode for a long time and only after a settlement could not be reported that the case was put back on the rails for recording the plaintiff’s evidence. She presses the present application and states that the same ought to be allowed as the amendments sought are quite innocuous. 12. The Court has heard the submissions made by the counsels for the parties. 13. Undoubtedly, the power of the Court to permit amendment in the plaint is wide enough and amendments can be permitted even if there is a substantial delay in filing such an application as the end purpose is that substantial justice must be rendered to the parties. However, the embargo placed in the proviso to Order VI Rule 17 CPC cannot be overlooked. It is clearly prescribed in the proviso to Order VI Rule 17 CPC that no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. 14. Having regard to the nature of amendments sought by the plaintiff, it can hardly be stated that he has shown due diligence in pursuing the case or that despite due diligence, he could not seek the amendments proposed to be incorporated in the plaint. 14. Having regard to the nature of amendments sought by the plaintiff, it can hardly be stated that he has shown due diligence in pursuing the case or that despite due diligence, he could not seek the amendments proposed to be incorporated in the plaint. The plaintiff claims to be the purchaser of three parcels of land on the basis of three sets of Agreements to Sell executed by him with three defendants as long back as in the year 2005. Assuming that an error had crept in the averments made in the plaint insofar the total sale consideration is concerned, the same would have surely been noticed by the plaintiff when he had filed his affidavit by way of evidence on 15.01.2010. However, the present application has been filed by the plaintiff after four years reckoned from the said date, i.e. in January, 2014 and that too, without offering any explanation for the prolonged delay. The Court is not satisfied with the filmsy explanation sought to be offered by learned counsel for the plaintiff for permission to amend the plaint. 15. Furthermore, the submission made by learned counsel for the plaintiff that due to a typing error, the names of defendants No. 1 & 2 have got interchanged in paras 2 & 3 of the plaint may appear to be innocuous at first glance, but when carefully examined, the Court finds merit in the submission of the learned counsel for the defendants that the plaintiff was well aware of the fact that the Agreements to Sell do not even bear the signatures of the defendant No. 2. So the question of erroneously interchanging the names of defendant No. 1 for defendant No. 2 and vice versa, does not arise. In fact, issues were framed in the suit as long back as on 18.4.2009 and one of the issues framed was with regard to privity of contract between the parties. So the plaintiff was put to notice about the objection taken by the defendants in this regard. 16. Even otherwise, the records reveal that evidence has already commenced in the suit and the plaintiff is under cross-examination. The defendants are justified in submitting that under the garb of the amendment application, the plaintiff cannot be permitted to overcome the contradictions that have emerged in the course of his cross-examination, as it would certainly disadvantage them. 17. 16. Even otherwise, the records reveal that evidence has already commenced in the suit and the plaintiff is under cross-examination. The defendants are justified in submitting that under the garb of the amendment application, the plaintiff cannot be permitted to overcome the contradictions that have emerged in the course of his cross-examination, as it would certainly disadvantage them. 17. The decision in the case of Pankaja and Another vs. Yellappa (dead) by LRs. and Others, (2004) 6 SCC 415 referred to by learned counsel for the plaintiff would also not be of any assistance. In the said case, it has been clarified by the Supreme Court that if granting of an amendment really sub-serves the ultimate cause of justice and avoids further litigation, the same should be allowed. However, every case has to be examined on its own facts and merits. In the present case, having regard to the sequence of events narrated above, this Court is not persuaded by the submission made by learned counsel for the plaintiff that the present amendment application is bona-fide and ought to be allowed at such a belated stage when the evidence has already commenced and the cross-examination of the plaintiff has been partly recorded. 18. Resultantly, the prayer made in the application is declined and the same is dismissed.