Rachna Mediratta and Ors. v. Girdhari Lal and Anr.

15. It is equally settled that if a Plaintiff seeks to alter the cause of action itself and introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to substitution of the plaint, Court will refuse to permit it if it amounts to depriving the Defendants of any right which may have accrued in their favour due to lapse of time. [Ref.: M/s Ganesh Trading Co. v. Moji Ram, (1978) 2 SCC 91]

16. In Revajeetu Builders and Developers (supra), the Supreme Court observed that the general principle is that Courts at any stage of the proceedings may allow either party to alter or amend the pleadings in such manner and on such terms as may be just for determining the real controversy and that the basic principles were articulated almost 125 years ago and are still considered to be correct statement of law. Reliance was placed by the Supreme Court on a leading English case in Cropper v. Smith, (1884) 26 Ch D 700 (CA), wherein it was held as follows: “… it is a well-established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. … I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace. … It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.”

17. Finally, the Supreme Court in Revajeetu Builders and Developers (supra) culled out the factors to be taken into consideration while dealing with applications for amendments and relevant passages are as follows:

18. Tested on the anvil of the aforementioned judgments, in my view, the Trial Court has committed no error in allowing the amendments. Respondent No.1 had clearly set up a case in the original plaint that he and his brother Sh. Gul Kumar were sons of late Sh. Arjun Dass and grandsons of late Sh. Lila Ram and inherited the properties including the suit property. Other legal heirs of late Sh. Lila Ram were initially impleaded, as relief of partition was sought. Defendant No.1/ Sh. Ashok Kumar was impleaded as an Agreement to Sell was executed by Defendant No.2 in his favour and the same was assailed seeking a relief of declaration to declare the agreement as null and void alongwith relief of permanent injunction against creating third-party rights in the suit property. Several developments took place during the pendency of the suit. Plaintiffs and Defendants No.2 to 8 allegedly compromised the matter and the suit property fell to the share of the Plaintiffs and an application was filed bringing on record the said facts including an averment that the legal heirs had taken their respective shares/monies under the family Settlement. Sh. Gul Kumar expired and his legal heirs did not contest. Defendants No.2 to 8 did not contest their deletion and finally, on this basis Respondent No.1 gave up the relief of partition. During the pendency of the suit, it came to light through the Defendants that the suit property was sold and the last set of purchasers impleaded themselves claiming right to the suit property. In this view, the Trial Court rightly permitted the amendments to bring on record the subsequent developments to decide the real controversy between the parties and avoid multiplicity of proceedings. In my view, it cannot be stated that by the amendments, Respondent No.1 sought to change the complexion of the suit and/or set up a new cause of action or raise pleas which were inconsistent with the pleas in the original suit. The relief of permanent injunction was sought to be amended as the property allegedly came to the Petitioners and restraint orders were sought from creating third-party rights to preserve the suit property.

19. The order of the Trial Court impugned herein permitting the amendments taking into account subsequent events is completely justified and is supported by the settled law propounded by the Supreme Court. In fact, in a recent judgment in Hitesh Gola v. Royal Bank of Scotland and Others, 2023 SCC OnLine Del 1271, this Court allowed an amendment application predicated on subsequent developments during the pendency of the suit, which were opposed by Defendant No.1 therein on the ground that Plaintiff was seeking to introduce fresh facts beyond the scope of the original suit and the amendments entirely changed the character and nature of the suit. The Court examined the contentions and came to a conclusion that Plaintiff cannot be expected to file multiple proceedings seeking adjudication of multiple claims arising out of the same incident and the amendments were necessary for effective and proper adjudication of the controversy and avoid multiplicity of proceedings as also that the amendments did not change the nature of the suit. The judgment of the court was based on earlier judgments of the Supreme Court where amendments were allowed based on subsequent events and relevant paras of the judgment of this Court relying on the judgments of the Supreme Court are as follows:

(iii) The prayer for amendment is to be allowed

(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

(ii) 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 does 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).

(iv) A prayer for amendment is generally required to be allowed unless

(i) 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,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

(v) 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.

(vi) Where the amendment would enable the court to pinpointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

(vii) 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.

(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

(ix) 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.

(x) 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.

(xi) 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. (See Vijay Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897)”

22. The tests laid down by the Supreme Court in LIC v. Sanjeev Builders (P) Ltd., are completely satisfied in the present case. In the facts of the present case, the amendments sought to be made are;

(i) in pursuance of the order dated 20.09.2021 of the Division

(ii) have been filed at the pre-trial stage;

(iii) based on events that took place subsequent to the filing of the present suit;

(iv) do not set up an entirely new and inconsistent case;

(v) necessary for effective and proper adjudication of the entire controversy between the parties; and

(vi) will avoid multiplicity of proceedings.

23. It is notable that the Supreme Court has reiterated time and again that subsequent events, even at the appellate stage, can afford valid justification for amendment of pleadings/inclusion of fresh prayers. Also, amendment is permitted to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate. In this regard reference may be made to the observations of the Supreme Court in Rameshwar v. Jot Ram, (1976) 1 SCC 194 as under: “9. The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its impotence to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Patterson [Patterson v. State of Alabama, 294 US 600 (1934), 607] illustrates this position. It is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri [1940 FCR 84: AIR 1941 FC 5] falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs — cannot deny rights — to make them justly relevant in the updated circumstances. Where the relief is discretionary, courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the Court, even in appeal, can take note of such supervening facts with fundamental impact Venkateswarlu, read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the Court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief. The primary concern of the Court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine (See Chokalingam Chetty [54 Mad LJ 88 (PC)]). The law stated in Ramji Lal v. State of Punjab [AIR 1966 Punj 374: ILR (1966) 2 Punj 125] is sound: “Courts, do very often take notice of events that happen subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the basis of such events but this is ordinarily done to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the plaintiff's suit would be wholly displaced by the proposed amendment (see Steward v. North Metropolitan Tramways Company [[1885] 16 Q.B.D. 178]) and a fresh suit by him would be so barred by limitation.” One may as well add that while taking cautious judicial cognisance of “post-natal” events, even for the limited and exceptional purposes explained earlier, no court will countenance a party altering, by his own manipulation, a change in situation and plead for relief on the altered basis.”

24. It is further notable that the Supreme Court has gone to the extent of holding that there is no impediment in allowing a pre-trial amendment even if it seeks to introduce a new cause of action based on events that have transpired subsequent to the filing of the original suit. In this regard, reference may be made to the judgment of the Supreme Court in Sampath Kumar v. Ayyakannu, (2002) 7 SCC 559, wherein it has been held as under:—

20. An argument was raised by the Petitioners that on the death of Gul Kumar/Plaintiff No.2, the whole suit abated since his legal heirs were not brought on record. This argument only deserves to be rejected. A bare reading of Order XXII Rule 2 CPC shows that where there are more than one Plaintiff and anyone of them dies and where the right to sue survives on the surviving Plaintiff(s), Court shall cause an entry to that effect to be made on the record and suit shall proceed at the instance of surviving Plaintiff(s).

21. Insofar as the arguments that it was not open to the legal heirs of late Sh. Lila Ram to enter into any settlement during the pendency of the suit, in view of an alleged earlier settlement is concerned, this issue cannot be decided at the stage of deciding the amendment application and would be a matter of trial. Similarly, the other issues as to whether original Defendant No.2 was the owner of the suit property and/or was within his right to transfer the property in favour of Sh. Ashok Kumar can only be decided after the parties lead evidence, as rightly held by the Trial Court. As for the argument that the suit is barred by law and/or Section 34 of the Specific Relief Act, 1963, this cannot be decided at the stage of adjudicating an application under Order VI Rule 17 CPC for determining if the amendment is to be allowed or not albeit Petitioners may have other remedies to press these issues.

22. Though subtly an argument was also raised that an amendment is barred by law of limitation on the ground that there was an earlier settlement between the family on 01.07.1974, which was never challenged by the Plaintiffs and once challenge to the earlier transaction was barred by limitation, indirectly the subsequent transactions cannot be challenged to overcome the limitation bar. This contention has no merit and in this context, I may only refer to a recent judgment of the Supreme Court in Life Insurance Corporation of India v. Sanjeev Builder Private Limited & Anr., 2022 SCC OnLine SC 1128, relevant paras of which are as follows:

20. Again in T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board, (2004) 3 SCC 392, this Court observed as follows: “2. …..The law as regards permitting amendment to the plaint, is well settled. In L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357: 1957 SCR 438] it was held that the Court 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.

3. It is not disputed that the appellate court has a coextensive power of the trial court. We find that the discretion exercised by the High Court in rejecting the plaint was in conformity with law.”

21. So far as the answer to the specific plea that the claim of damages is barred by limitation and cannot be permitted at this stage is concerned, it becomes necessary to examine the various judicial pronouncements of this Court. The principles governing an amendment which may be permitted even after the expiry of the statutory period of limitation were laid down by the Privy Council in its judgment in Charan Das v. Amir Khan, AIR 1921 PC 50. In this case, the Privy Council laid down the principles thus: “…..That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases: see for example Mohummud Zahoor Ali v. Rutta Koer, where such considerations are outweighed by the special circumstances of the case, and their Lordships are not prepared to differ from the Judicial Commissioner in thinking that the present case is one.”

22. It would be useful to also notice the observations of this Court in, Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, 1957 SCR 595: AIR 1957 SC 363, wherein this Court considered an objection to the amendment on the ground that the same amounted to a new case and a new cause of action. In this case, this Court laid down the principles which would govern the exercise of discretion as to whether the court ought to permit an amendment of the pleadings or not. This Court approved the observations of Batchelor, J., in the case of Kisandas Rupchand v. Rachappa Vithoba Shilwant reported in ILR (1909) 33 Bom 644, when he laid down the principles thus:

23. This Court has repeatedly held that the power to allow an amendment is undoubtedly wide and may be appropriately exercised at any stage in the interests of justice, notwithstanding the law of limitation. In this behalf, in Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393, this Court held thus:

xxxx xxxx xxxx

26. But undoubtedly, every case and every application for amendment has to be tested in the applicable facts and circumstances of the case. As the proposed amendment of the pleadings amounts to only a different or an additional approach to the same facts, this Court has repeatedly laid down the principle that such an amendment would be allowed even after the expiry of statutory period of limitation.

27. In this behalf, in A.K. Gupta & Sons Ltd. v. Damodar Valley Corporation, AIR 1967 SC 96: (1966) 1 SCR 796, this Court held thus:

29. In Pankaja v. Yellappa (dead) by lrs., (2004) 6 SCC 415, this Court held that it was in the discretion of the court to allow an application under Order VI Rule 17 of the CPC seeking amendment of the plaint even where the relief sought to be added by amendment was allegedly barred by limitation. The Court noticed that there was no absolute rule that the amendment in such a case should not be allowed. It was pointed out that the court's discretion in this regard depends on the facts and circumstances of the case and has to be exercised on a judicial evaluation thereof. It would be apposite to notice the observations of this Court in this pronouncement in extenso. The principles were laid down by this Court thus:

30. From the above, therefore, one of the cardinal principles of law in allowing or rejecting an application for amendment of the pleading is that the courts generally, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of filing of the application. But that would be a factor to be taken into account in the exercise of the discretion as to whether the 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.

31. In Ragu Thilak D. John v. S. Rayappan, (2001) 2 SCC 472, this Court also observed that where the amendment was barred by time or not, was a disputed question of fact and, therefore, that prayer for amendment could not be rejected and in that circumstances the issue of limitation can be made an issue in the suit itself like the one made by the High Court in the case on hand.”

23. Therefore, in the light of the aforesaid observations of the Supreme Court, it cannot be argued by the Petitioners that as a matter of rule, an amendment application has to be rejected if a plea of bar of limitation is raised by the opposite party. In the present case, the issues raised by the Petitioners pertaining to the earlier family Settlement in 1974 etc. in support of the bar of limitation are not questions which can be decided at the stage of deciding the amendment application and no infirmity can be found in the order of the Trial Court permitting amendments to the plaint.

24. In view of the aforesaid, this Court finds no error in the impugned order dated 24.02.2022 and CM(M) 280/2022 is dismissed as being devoid of merit. Needless to state that the observations in the present judgment are only for the purpose of deciding the present petition and will have no bearing on the further proceedings in the suit. It is left open to the Petitioners to raise any of the above issues which according to them may lead to rejection of the plaint in appropriate proceeding and if and when Petitioners resort to any such proceedings, Trial Court shall decide the same in accordance with law and without being influenced by the impugned order dated 24.02.2022 or the present judgment.

25. CM(M) 280/2022 is accordingly dismissed alongwith the pending application. C.R.P. 48/2022

26. Challenge in this revision petition is to an order dated 23.03.2022 whereby the Trial Court has extended the time in favour of Respondent No.1 to file the amended plaint. Two folds arguments have been raised to assail the order: (a) provision of Order VI Rule 18 CPC is mandatory and a party who obtains leave to amend must file the amended pleading within the time prescribed by the Court or if no time is prescribed then within 14 days from the date of the order and if the party fails to do so, the amendment cannot be taken on record, unless the time is extended by the Court; and (b) the amended plaint filed by Respondent No.1 was not in accordance with the amendments sought and allowed and were outside its scope and therefore, the filing would be deemed as no filing in the eyes of law and since no amended plaint can be taken to have been filed within the time permitted under law, Trial Court erred in extending the time instead of dismissing the suit.

27. Order VI Rule 18 CPC provides that once an order for leave to amend is granted and time for that purpose is granted by the court, unless the time is extended by the court, amendment will not be permitted to be incorporated, if the party fails to take necessary steps within the time granted or prescribed for the purpose. It is clear from the reading of the provision itself that the rule does not curtail the power of the Court to extend the time granted or prescribed for carrying out an amendment allowed by the Court and the intent/objective of the rule, in my view, is that a party having obtained leave to amend the pleadings cannot do so if it has defaulted in adhering to the time limit without seeking extension from the Court. In this context, I may refer to the following passages from the judgment of this Court in Lunarmech Machinenfabric Ltd. & Anr. v. USF Filtration Ltd. & Anr., 2006 SCC OnLine Del 719:-

39. In my view the reason given in the application was plausible and it was for the Court to extend time by exercising judicial discretion and the said discretion in the facts and circumstances of the case has been rightly exercised. The matter was then adjourned to 24.1.2005, by the learned Additional District Judge.

42. The law is well established that the procedure is meant for advancing the cause of justice and not to become a stumbling block in the justice delivery system. In the judgment titled Salem Advocates Bar Association v. Union of India, (2005) 6 SCC 344: AIR 2005 SC 3354, several provisions of the amended CPC have been discussed including Section 148, CPC on the point of extending time. The Supreme Court opined that, extension beyond maximum of 30 days, thus, can be permitted if the act could not be performed within 30 days for the reasons beyond the control of the party. Further, there can be many cases where non-grant of extension beyond 30 days would amount to failure of justice. The object of the Code is not to promote failure of justice. Section 148, therefore, deserves to be read down to mean that where sufficient cause exists or events are beyond the control of a party, the Court would have inherent power to extend time beyond 30 days.

43. In my view, the faxed copy of the amended plaint has been filed in less than 30 days counting from 24.12.2005, as explained above and even if it has been filed beyond 30 days the above mentioned judgment comes to the rescue of the plaintiffs. The original plaint has also been filed on 18.1.2005. Application dated 15.1.2005 for extension of time by 3 days is still pending in the trial Court. In my view the challenge to all the three orders in the second petition is without merit.

44. Before parting with this judgment I feel constrained to record that it has become a practice with some litigants not to allow the trial Court to proceed further and reach decision of the main suit. On every interlocutory and procedural order they rush to the higher Courts and more often than not want the higher Courts to go into deep details of the matters to which the trial Court has still to apply its mind and in this way they want to pre-empt the orders to be passed by the trial Courts and want the higher Courts to take up the work of the trial Courts. Such litigants cannot be allowed to hijack the justice delivery system and mould it according to their whims and fancies. In these times of international commercial transactions, our justice delivery system should not lag behind and allow the litigation to go on for years and decades especially when foreign companies are involved. Any act of commission or omission on the part of any party is going to adversely effect the prestige, reputation and economy of the country. Our justice delivery system should not become a bottleneck in the economic development, liberalization and globalisation of the country's trade and commerce.

45. In my view, the learned Counsel for the defendants has unnecessarily stretched this matter beyond all reasonable limits. Perusal of the above said three orders on the face of it shows that these are just procedural and interlocutory orders which are passed from time to time during progress of a case. Against such orders a Civil Revision Petition is not maintainable because such orders do not finally dispose of a suit or other substantial proceedings. Apparently, therefore, these petitions have been filed under Article 227 of the Constitution of India.

46. The extra ordinary jurisdiction is exercised only when an order passed by the Court or tribunal has resulted in gross failure of justice. In the present case, none of the impugned orders has resulted in gross failure of justice, rather the undue delay being caused at every step at the instance of the defendants is resulting in gross failure of justice and such a tendency of the delaying tactics of the parties has to be curbed with a strong hand.”

28. Therefore, once the Trial Court exercises its discretion in a given case to extend the time, unless the exercise of discretion is arbitrary or perverse or in excess of jurisdiction, it warrants no interference. In any event, this question is wholly irrelevant in the present case since it is Petitioners’ own case in the present revision petition that the amended plaint was filed on 26.02.2022. The Trial Court by order dated 24.02.2022 had allowed the amendment without prescribing any time to file the amended plaint and therefore, in accordance with Order VI Rule 18 CPC, the amended plaint was required to be filed within 14 days from 24.02.2022 or within time extended by the Court. The amended plaint filed on 26.02.2022 was within a period of 14 days and on this, there can hardly be any debate.

29. The issue that the Petitioners seek to raise is that the amendment carried out was not in consonance with the order dated 24.02.2022 allowing the amendment and therefore, the amended plaint filed on 26.02.2022 was required to be struck off and no extension could have been granted by the Court. On perusal of the impugned order, this Court finds that the Trial Court partially agreed with the Petitioners that some of the amendments viz. amendments in paragraphs 1, 2, 6, 9 as also in last sentence of para 2 were not in consonance with the amendments allowed and therefore directed that an amended plaint be filed in accordance with the order dated 24.02.2022. As the Trial Court permitted Respondent No. 1 to file an amended plaint with modifications on 23.03.2022, which was beyond 14 days from 24.02.2022, Trial Court exercised the power under Rule 18 of Order VI CPC and extended the time, subject to cost. Once the Trial Court was empowered to extend the time and has exercised its discretion, which to this Court does not seem to have been exercised arbitrarily, the impugned order warrants no interference.

30. Revision petition is accordingly dismissed alongwith the pending applications.