Research › Search › Judgment

Rajasthan High Court · body

2021 DIGILAW 835 (RAJ)

Nakoda Fab, Proprietor Rikhab Chordiya S/o Bhanwar Lal Chordiya v. Manish Kediya S/o Sanwarmal Kediya

2021-04-09

PRAKASH GUPTA

body2021
ORDER : 1. The present writ petition has been filed under Article 227 of the Constitution of India against the order dated 16.12.2019 passed by the Commercial Court, whereby the application filed by the petitioner-plaintiff (for short, ‘the plaintiff’) under Order 6 Rule 17 read with Section 151 CPC has been dismissed. 2. Facts of the case are that the plaintiff filed a suit for recovery of money against the respondents-defendants (for short, ‘the defendants’). The defendants filed their written statements. Issues were framed. Thereafter the plaintiff filed an application under Order 6 Rule 17 read with Section 151 CPC seeking permission to add paragraph 2(a) and 2(b) after paragraph 2 of the plaint, which was allowed vide order dated 2.12.2016 subject to payment of cost. Thereafter the plaintiff filed the amended plaint. The defendants filed an application for deleting part of the pleadings from the amended plaint. The Commercial Court after hearing the arguments, disposed of the defendants' application and the amended plaint filed by the plaintiff was taken on record subject to payment of cost. The defendants filed the amended written statement. The plaintiff filed an application under Order 1 Rule 10 read with Section 151 CPC for impleading firm Fashion Fab as defendant no.3, which was dismissed as not pressed. Thereafter the plaintiff filed an application under Order 6 Rule 17 read with Section 151 for amendment in the pleadings, which has been dismissed by the Commercial court vide order dated 16.12.2019. Hence this writ petition: 3. Learned counsel for the plaintiff submits that defendant Manish Kediya is the owner of various firms which are being run in different names. He further submits that the bills, description of which were given in the plaint, are related to firm "B.M. Textile" and those bills were available on record. However, due to typographical error, in line No. 3 of paragraph No. 2 of the plaint, instead of firm “B.M. Textile” firm “Fashion Fab” was inadvertently mentioned and for this reason also in paragraph 2 (a) of the plaint, firm “Fashion Fab” was mentioned in place of “B.M. Textile”. However, due to typographical error, in line No. 3 of paragraph No. 2 of the plaint, instead of firm “B.M. Textile” firm “Fashion Fab” was inadvertently mentioned and for this reason also in paragraph 2 (a) of the plaint, firm “Fashion Fab” was mentioned in place of “B.M. Textile”. He prayed that in this view of the matter, amendment sought for was necessary for effective adjudication of the controversy involved in the matter and no prejudice would be caused to either of the parties as the trial of the suit has not commenced and on account of the amendment sought for, defence of the defendants would also not to be changed. The plaintiff filed an application under Order 6 Rule 17 CPC, which has been dismissed by the Commercial Court in an arbitrary and illegal manner. 4. Learned counsel for the respondents-defendants (for short, “the defendants”) have opposed the same and submit that firm "B.M. Textile" is not a party to the suit. In the plaint itself, the plaintiff mentioned that the cloth was purchased in the name of firm “Fashion Fab”. They further submit that earlier also, the plaintiff filed an application for amendment under Order 6 Rule 17 CPC for adding paragraph 2(a) and 2(b) in the plaint, which was allowed by the Commercial Court vide order dated 2.12.2016. Now the plaintiff has again sought to amend the pleadings by way of application under Order 6 Rule 17 CPC. If the amendment, as sought for, is allowed, it would change the nature of the suit. 5. Heard. Considered. 6. Hon’ble Supreme Court in the case of M Revanna vs Anjanamma (Dead) by Lrs and others reported in AIR 2019 (SC) 940 , has held that: “Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the Court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money." 7. Hon’ble Supreme Court in the case of Mahila Ramkali Devi & Ors. Vs. Nandram (Dead) through Legal Representatives & Ors., reported in (2015) 13 SCC 132 has again reiterated the basic principles, which are to be kept in mind while considering such applications in Paragraphs 20, 21 and 22, which are quoted as below:- “20. Hon’ble Supreme Court in the case of Mahila Ramkali Devi & Ors. Vs. Nandram (Dead) through Legal Representatives & Ors., reported in (2015) 13 SCC 132 has again reiterated the basic principles, which are to be kept in mind while considering such applications in Paragraphs 20, 21 and 22, which are quoted as below:- “20. It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting mala fide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost. 21. In our view, since the appellant sought amendment in Para 3 of the original plaint, the High Court ought not to have rejected the application. 22. In Jai Jai Ram Manohar Lal v. National Building Material Supply, this Court held that the power to grant amendment to pleadings is intended to serve the needs of justice and is not governed by any such narrow or technical limitations.” 8. Admittedly the plaintiff earlier filed an application under Order 6 Rule 17 CPC seeking to amend the pleadings, which was allowed vide order dated 2.12.2016 and paragraph No. 2 (a) and 2(b) were permitted to be added subject to payment of cost. Thereafter amended plaint was filed and amended written statement was also filed. On the court's direction, copy of the bills have been sent by the Commercial Court concerned, which are taken on record. From a perusal of the bills, it appears that the bills are in the name of firm “B.M. Textile” and not in the name of “Fashion Fab”. 9. In the instant case, only the amended written statement has been filed and the trial has not commenced so far before the Commercial Court. In this view of the matter, if from the amendment sought to be made, any prejudice was going to be caused to the defendants, they could be compensated in terms of money. Thus, when the error was apparently due to typographical error, the Commercial Court is found to have committed material illegality while passing the impugned order dated 16.12.2019. 10. In this view of the matter, if from the amendment sought to be made, any prejudice was going to be caused to the defendants, they could be compensated in terms of money. Thus, when the error was apparently due to typographical error, the Commercial Court is found to have committed material illegality while passing the impugned order dated 16.12.2019. 10. For the aforesaid reason, the writ petition is allowed; the order dated 16.12.2019 passed by the Commercial Court is setaside and the application under Order 6 Rule 17 CPC stands allowed subject to payment of cost of Rs. 10,000/- to be paid to the defendants. Let amended plaint be filed within one month from the date of this order. 11. Consequent upon the disposal of the writ petition, stay application also stands disposed of accordingly.