Full Judgement
Delhi High Court
Neeru Kapoor vs Blue State Infotech Pvt Ltd & Ors on 12 August, 2024
Author: Navin Chawla
Bench: Navin Chawla
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 12.08.2024
+ CS(OS) 1632/2012 & I.A. 3511/2019
NEERU KAPOOR .....Plaintiff
Through: Mr.Ranjit S.Sahni, Adv.
(through VC)
versus
BLUE STATE INFOTECH PVT LTD & ORS .....Defendants
Through: Mr.Arvind Sah, Adv.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (ORAL)
IA 127/2023
1. This is an application filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure, 1908 (in short „CPC‟), praying for permission to amend the plaint by adding a prayer for seeking possession of the Suit property, that is, Plot No. F- 29, F-30, F-117A, F-5, F-5A out of the Khasra No.10/1, Village Asalatpur, Delhi, now known as F-Block, Jiwan Park, Uttam Nagar, New Delhi.
2. The learned counsel for the plaintiff explains that in the plaint filed, the plaintiff has prayed for the sale deed dated 08.11.2011 with respect to the Suit Property to be declared as null and void and as rescinded, however, due to inadvertence, the prayer for
Signature Not Verified Digitally Signed CS(OS) 1632/2012 Page 1 of 6 By:SUNIL Signing Date:16.08.2024 11:29:39 possession of the Suit Property was not made in the plaint. This mistake was only later realized by the plaintiff upon the demise of the original plaintiff and when the same was pointed out to the new counsel appointed by plaintiff‟s son.
3. The plaintiff also wishes to make consequential amendments in the plaint with respect to the court fees and jurisdiction.
4. In support, he places reliance on the following judgments:
Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd. & Anr., (2022) 16 SCC 1; Pankaja & Anr. v. Yellappa (dead) by LRs. & Anr., (2004) 6 SCC 415;
Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897; and, Saigal Holdings (P) Ltd. & Anr. v. ASA Nand Khurana & Ors., 2018 SCC OnLine Del 6767.
5. On the other hand, the learned counsel for the defendants submits that the trial in the Suit has already commenced and the plaintiff has been unable to show to this Court that in spite of due diligence, he could not have raised/made the prayer now sought to be made by way of amendment application. He further submits that the plaintiff has been derelict in the conduct of the Suit and for the last four years, the Suit is being adjourned because the plaintiff has not filed the evidence by way of affidavit of its witness.
6. He submits that the plaintiff earlier also, as recorded in the Order dated 15.04.2013, informed the Court that he would be
Signature Not Verified Digitally Signed CS(OS) 1632/2012 Page 2 of 6 By:SUNIL Signing Date:16.08.2024 11:29:39 seeking permission of the Court to make amendment in the Suit through an appropriate application, however, later on 25.09.2013, the plaintiff informed the Court that he would not be making any such amendment in the Suit. He submits that therefore, the plaintiff cannot now be permitted to amend the suit.
7. He further submits that the prayer for possession would now also be barred by principles of Order II Rule 2 of the CPC.
8. I have considered the submissions made by the learned counsels for the parties.
9. The only amendment sought to be made in the plaint is to seek consequential relief to the prayer „G‟, that is, the challenge to the sale deed dated 08.11.2011, in form of adding a prayer for possession of the Suit Property.
10. The plaintiff has asserted that the said omission came to the notice of the plaintiff only on the death of the original plaintiff and on the new counsel being engaged. Though there is no doubt that in terms of Order VI Rule 17 of the CPC, the amendment to the plaint, once the trial has commenced, can only be granted where the Court comes to the conclusion that in spite of due diligence, the party could not have raised matter before the commencement of trial, at the same time, the rules of procedure are handmaiden of justice and not the mistress of justice. The Court has to ensure that the procedures do not in any manner prejudice a party from laying his/her case in the Suit. Reliance in this regard is placed on the Judgment of
Signature Not Verified Digitally Signed CS(OS) 1632/2012 Page 3 of 6 By:SUNIL Signing Date:16.08.2024 11:29:39 Constitutional Bench of the Supreme Court in Sardar Amarjit Singh Kalra (Dead) by Lrs. & Ors. v. Pramod Gupta & Ors., (2003) 3 SCC 272, wherein the Supreme Court held as under:
"26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice....."
11. Substantive justice cannot be denied on mere technicalities.
Moreover, by way of proposed amendment, the plaintiff does not seek to change the nature of the Suit or in any manner ambush the defendant with a new pleading.
12. In Life Insurance Corporation Ltd. (supra), the Supreme Court has held that where 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. In the present case also, the plaintiff does not wish to add or subtract from the pleaded facts, and on the pleaded facts, wishes to add a prayer. The amendment, therefore, deserves to be allowed.
13. As far as the Proviso to Order VI Rule 17 of the CPC is concerned, a learned Single Judge of this Court, in Dr. Vijay Gupta (supra), while emphasising that the Proviso prohibits, in absolute terms, allowing of an application for amendment after
Signature Not Verified Digitally Signed CS(OS) 1632/2012 Page 4 of 6 By:SUNIL Signing Date:16.08.2024 11:29:39 commencement of trial, unless the Court finds that, in spite of due diligence, the party could not have raised the matter prior thereto, also emphasised that even while examining the aspect of "due diligence" under the Proviso to Order VI Rule 17 of the CPC, the Court is required to adopt an expansive and liberal, rather than a pedantic and literal, approach.
14. The Supreme Court, while referring to the above judgment in Life Insurance Corporation Ltd. (supra), emphasised that where the amendment is necessary for the court to effectively adjudicate on the main issue in controversy between the parties, the amendment should be allowed.
15. In so far as the bar under Order II Rule 2 of the CPC is concerned, the Supreme Court in Life Insurance Corporation Ltd. (supra) has clarified that the said bar is applicable only to a subsequent Suit filed and not to a prayer for amendment made in the pending suit. I may quote from the judgment as under:
"51. In the light of the principles discussed and the law laid down by the Constitution Bench as also the other decisions discussed above, we are of the view that if the two suits and the relief claimed therein are based on the same cause of action then the subsequent suit will become barred under Order 2 Rule 2CPC. However, we do not find any merit in the contention raised on behalf of the appellant herein that the amendment application is liable to be rejected by applying the bar under Order 2 Rule 2CPC. Order 2 Rule 2CPC cannot apply to an amendment which is sought on an existing suit.
xxxxx
71. Our final conclusions may be summed up thus:
Signature Not Verified Digitally Signed CS(OS) 1632/2012 Page 5 of 6 By:SUNIL Signing Date:16.08.2024 11:29:39
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."
16. In view of the above, the application is allowed, subject to the plaintiff paying costs of Rs.30,000/- to the defendants.
17. The plaintiff shall file the amended plaint within a week from today.
I.A. 2403/2017
18. In view of the Order passed hereinabove, the learned counsel for the plaintiff does not oppose this application. The same is allowed. The documents are taken on record. CS(OS) 1632/2012
19. The written statement, if any, to the amendment plaint be filed within two weeks thereafter.
20. List before the learned Joint Registrar (Judicial) for fixing dates of further trial on 29th October, 2024.
NAVIN CHAWLA, J AUGUST 12, 2024 RN/VS Click here to check corrigendum, if any
Signature Not Verified Digitally Signed CS(OS) 1632/2012 Page 6 of 6 By:SUNIL Signing Date:16.08.2024 11:29:39
