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2025 DIGILAW 9 (MP)

Ashok Rathi v. Kartar Chand

2025-01-06

PRANAY VERMA

body2025
ORDER : Pranay Verma, J. This petition under Article 227 of the Constitution of India has been preferred by defendants No.4 to 7 / petitioners, being aggrieved by the order dated 12.09.2023 passed by the trial Court, whereby application under Order 6 Rule 17 of the CPC preferred by the plaintiffs has been allowed. 2. For the purpose of decision of this petition, the facts need not be narrated in detail. Suffice is to say that plaintiffs have instituted an action on 20.07.2020 against the defendants for declaration of their title to the suit property, declaration that defendants No.2 and 3 are not the owners of the same since the entire sale consideration of Rs.1,40,00,000/- has not been paid to them, for declaration that the sale deeds executed in favor of defendants No.2 and 3 are null and void, for declaration that the sale deeds executed by defendants No.2 and 3 in favor of defendants No.4 to 7 are null and void, for damages and permanent injunction restraining the defendants from alienating the suit property. 3. During pendency of the suit, plaintiffs filed an application under Order 6 Rule 17 of the CPC seeking leave of the Court to amend the plaint for seeking an alternate relief of refund of Rs.1,04,00,000/- out of the total sale consideration of Rs.1,40,00,000/- as per the agreement to sale dated 17.05.2017 along with interest @ 18% per annum till date of payment. The application was contested by defendants but has been allowed by the trial Court by the impugned order on the ground that only an alternate relief has been sought for by plaintiffs which can be permitted even though the trial in the suit has begun. In any case, evidence of plaintiffs has not been concluded as yet. Since plaintiffs’ original relief was within time, the alternate relief would also be deemed to be within time. 4. The aforesaid order has been challenged by defendants No.4 to 7 on the ground that since trial in the suit had already begun, the amendment as prayed for could not have been permitted by the trial Court. No reason was given by the plaintiffs for the delay in proposing the amendment. The amendment was apparently barred by time hence could not have been allowed. No reason was given by the plaintiffs for the delay in proposing the amendment. The amendment was apparently barred by time hence could not have been allowed. As on the date of filing of the application for amendment, the relief of refund of consideration had become barred by time hence it could not have been allowed. Reliance has been placed on the decision of the Apex Court in Basavaraj Vs. Indira and Others , 2024 (3) SCC 705 and of the Madras High Court in Rameeza Beevi and Others Vs. S. Mohammed Ibrahim , 2005 SCC online, Mad 580. 5. Per contra, learned counsel for the plaintiffs has submitted that no new fact was sought to be introduced by the plaintiffs and only an alternate relief on the basis of subsisting pleadings was sought for. The same could have certainly been allowed as has rightly been done. The suit was within time and since an alternate relief on the basis of the already existing averments has been sought, the same was legally permissable. The order passed by the trial Court hence does not suffer from any illegality. 6. I have heard the learned counsel for the parties and have perused the record. 7. While it is true that the trial in the case has commenced but the same is at the initial stage itself. The statement of plaintiff is still being recorded and cross-examination has not been completed. The suit has hence not advanced to such an extent that plaintiffs cannot be permitted to amend the plaint. No prejudice would be caused to the defendants if the amendment is allowed. Moreover, the amendment is only for claiming an additional relief on the basis of already subsisting averments. No new fact has been sought to be introduced by the plaintiffs and the existing plaint is kept intact. 8. Recently, the Apex Court in the case of Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited and Another , 2022 (16) SCC 1 has summarized the legal principles as regards amendment in the pleadings and has held as under: "71. Our final conclusions may be summed up thus: 71.1. Order 2 Rule 2CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. Our final conclusions may be summed up thus: 71.1. Order 2 Rule 2CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order 2 Rule 2CPC is, thus, misconceived and hence negatived. 71.2. All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order 6 Rule 17CPC. 71.3. The prayer for amendment is to be allowed: 71.3.1. If the amendment is required for effective and proper adjudication of the controversy between the parties. 71.3.2. To avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment do not seek to withdraw any clear admission made by the party which confers a right on the other side, and (c) the amendment does not raise a time-barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). 71.4. A prayer for amendment is generally required to be allowed unless: 71.4.1. By the amendment, a time-barred claim is sought to be introduced, in which case the fact that the claim would be time-barred becomes a relevant factor for consideration. 71.4.2. The amendment changes the nature of the suit. 71.4.3. The prayer for amendment is mala fide, or 71.4.4. By the amendment, the other side loses a valid defence. 71.5. In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. 71.6. Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. 71.7. Where the amendment merely sought to introduce an additional or a new approach without introducing a time-barred cause of action, the amendment is liable to be allowed even after expiry of limitation. 71.8. Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. 71.9. 71.7. Where the amendment merely sought to introduce an additional or a new approach without introducing a time-barred cause of action, the amendment is liable to be allowed even after expiry of limitation. 71.8. Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. 71.9. Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. 71.10. Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. 71.11. Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. [Vijay Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897] .)" 9. In the aforesaid judgment, it has been categorically held by the Apex Court that when the amendment sought is only in respect to the relief in the plaint and is predicated on facts which are already pleaded in the plaint, ordinarily, the amendment is required to be allowed. In the present case also, the amendment sought for by plaintiffs is for claiming an additional relief on the basis of already existing averments and no new facts are sought to be introduced. The same in view of the aforesaid decision deserved to be and has rightly been allowed. 10. In the present case also, the amendment sought for by plaintiffs is for claiming an additional relief on the basis of already existing averments and no new facts are sought to be introduced. The same in view of the aforesaid decision deserved to be and has rightly been allowed. 10. In Basavaraj (supra), which is a decision of a two Judge Bench, relied upon by the learned counsel for defendants No.4 to 7, amendment was primarily disallowed on the ground that the same was proposed at the stage of final hearing of the suit and permitting the same would have caused prejudice to the defendants. It was on the assumption that the relief claimed for would be barred by time since with passage of time, right had accrued in favour of the defendants and permitting amendment would cause prejudice to them. However, there was no discussion as regards whether the amendment, if permitted, would relate back to the date of filing of the suit or would be relatable to the date on which the application was filed. 11. In L.J. Leach and Company Limited and Another Vs. Jardine Skinner and Company , AIR 1957 SC 357 , which is a decision of a four Judge Bench, it was held by the Apex Court that no doubt Courts would, as a rule, decline to allow amendments if a fresh suit on the amended claim would be barred by limitation on the date of the application, but that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered and does not affect the power of the Court to order it, if that is required in the interest of justice. In the present case, the fact scenario which has emerged requires in the interest of justice that the amendment prayed for by the plaintiffs should be allowed. 12. The suit which has been filed by the plaintiffs is within time. On the basis of the averments as made in the plaint, an additional relief is sought for by the plaintiffs. For the present, only amendment has been permitted and defendants would very well have the right to make consequential amendment and raise objection that the relief sought for by way of amendment has become barred by time. On the basis of the averments as made in the plaint, an additional relief is sought for by the plaintiffs. For the present, only amendment has been permitted and defendants would very well have the right to make consequential amendment and raise objection that the relief sought for by way of amendment has become barred by time. An issue can very well be framed by the trial Court in that regard to be decided at the appropriate stage. 13. However, the contention of the defendants that the relief which is being sought for by plaintiffs by way of amendment has become barred by time and permitting the amendment to relate back to the date of suit would have the effect of bringing the same within time which would deprive them of the advantage accrued to them by lapse of time cannot be lost sight of. In similar circumstances, the Apex Court in the case of Sampath Kumar Vs. Ayyakannu and Another , 2002 (7) SCC 559 had held that interests of defendants can be protected by directing that so far as the relief sought for by way of amendment is concerned, prayer in that regard shall be deemed to have been made on the date on which the application for amendment was filed. The defendants have raised a contention that the relief sought for by plaintiffs by way of amendment has become barred by time. Their right to contend so cannot be taken away by way of the amendment. 14. Consequently, it is held that the trial Court has not committed any error in passing the impugned order allowing the application for amendment filed by the plaintiffs. The said order is accordingly affirmed. However, it is directed that so far as the relief which has been sought for by plaintiffs by way of their amendment application shall be deemed to have been made on the date on which the application for amendment was filed before the trial Court. With the aforesaid, the petition stands disposed off.