Rajesh Mittal v. Sumer Chand & Anr.

1. Challenge by means of this petition under Article 227 of the Constitution of India is to the orders passed by the trial court dated 04.4.2014 and 31.7.2014. By the order dated 04.4.2014, the amendment application filed by the respondents/plaintiffs was allowed whereby the respondents/plaintiffs were allowed to add the aspect with respect to mortgage of the property and detailed facts with respect to which were stated as paras 5 to 5(E) in the amendment application. By the subsequent order dated 31.7.2014, the trial court has rejected the request made on behalf of 2014:DHC:4860 the petitioner/defendant to reject the amended plaint on the ground that the same is not in accordance with amendment allowed vide order dated 04.04.2014.

2. Firstly, I may note that one petition challenging two wholly different orders cannot be filed i.e there cannot be filed a challenge to an order allowing an application for amendment and also to a second order which rejects the objection that the amended plaint is not in accordance with the amendment allowed i.e either the amendment is allowed and amended plaint has to be in accordance with the amendments permitted or the amendment is not to be allowed and is challenged. Both aspects cannot be challenged together, and therefore this petition is liable to be thrown out on this short ground itself.

3. This petition is also liable to be rejected in limine as regards the challenge against the order dated 04.4.2014, because, the petitioner/defendant is estopped from challenging the order dated 04.4.2014 after the petitioner/defendant contested and sought an order that the amended plaint filed is not in accordance with the amendment allowed and which has resulted in the second order dated 31.7.2014 rejecting the objection that the amended plaint filed is not in accordance with the order dated 04.4.2014 allowing the amendment application.

4. Even if we see the merits, it is trite that by allowing an amendment application, merits of the case are not decided i.e by allowing an amendment only a case is allowed to be put up and that case will have to be proved in accordance with law during the trial of the case. Also, the amendment which has been allowed in the present case of the respondents/plaintiffs is at an early point of time in the suit when the issues in the suit were also not framed. Therefore, looking at it in any manner with respect to the amendment application being not delayed in any manner, and that by allowing of the amendment only a case is allowed to be put forth and which will have to be proved before the trial court, no prejudice is caused to the petitioner/defendant by the order dated 04.4.2014 allowing the amendment.

5. Now for the sake of argument, let us take that the petitioner/defendant can also be allowed to challenge the order dated 31.7.2014 by which it was contended that the amended plaint is not in accordance with the order by which amendment was allowed on 04.4.2014. On this aspect, I find that the trial court has rightly rejected the stand of the petitioner/defendant because the order dated 04.4.2014 shows that amendment which was permitted was to para 5 of the plaint and the amendments prayed pertained to the issue of mortgage. Therefore, it is misconceived on behalf of the petitioner/defendant to argue that when the order dated 04.4.2014 says ‘one fact’ of mortgage is allowed to be added by the amendment, then that means out of paras 5 to 5(E) which are proposed to be added by amendment, only the first para 5 was allowed to be amended. This is surely a most absurd argument because if we take this argument to a logical conclusion, ‘one fact’ would not mean only one word i.e mortgage, and obviously that was not the intent and purport of the order dated 04.4.2014.

6. In view of the above, this petition is wholly misconceived, and the same is therefore dismissed with the costs of Rs.20,000/-. Costs shall be paid to the respondents/plaintiffs by the petitioner/defendant on account of the petitioner/defendant unnecessarily causing delay in the disposal of the suit of the respondents/plaintiffs. Costs shall be paid to the respondents/plaintiffs on the next date of hearing before the trial court.

VALMIKI J. MEHTA, J SEPTEMBER 19, 2014 KA