Lalit Mohan Madhan v. Om Prakash Gupta & Ors.

1. That the defendant No. 1 be directed to return the portion of Plot no. 26-B/1, Vasant Vihar, New Delhi, to the plaintiff which is shown by alphabets ABPO in the site plan Annexure-copyright hereto: Mr. Makhija, learned senior counsel for respondent no. has fairly conceded that liberty may be granted to file a separate suit for the relief as mentioned in prayer No. 5 of the plaint and plaintiff will not press this prayer in the present suit. Liberty is granted. In view of the liberty granted, if question of limitation arises, the petitioner shall be entitled to raise the same before the appropriate court. Nothing survives in this revision petition. The same is disposed of in terms of the above observation.”

13. With the undertaking, by the respondent, to file a separate suit seeking return, to the respondent, of the suit property, Mr. Duggal, learned Counsel for the petitioner, points out that the suit survived only in respect of injunctive reliefs.

14. The respondent thereafter moved an application under Order VI Rule 17 of the CPC which has come to be decided by the impugned order dated 8th January 2020. In the said application, the respondent referred to the order dated 5th September 1977 supra passed by the learned Senior Civil Judge of this Court, in which he had opined that the reliefs sought in prayers 2, 4 and 5 in the suit could be granted only if the respondent was able to prove his legal right and title over the suit property.

15. Towards this end, the application sought to incorporate, in the plaint, certain passages, on the basis of which the respondent sought a declaration in his favour and against the petitioner, to the effect that the petitioner was not entitled to claim any legal right, title or interest in respect of the rear portion of the suit property. Accordingly, the following prayer clause was also sought to be added in the plaint: “pass a decree of declaration in favour of the plaintiff and against the defendant thereby declaring that the Defendant no.2 is not entitled to claim any legal right, title or interest in respect of the rear portion of the suit property bearing no. B-1/26, Vasant Vihar, New Delhi.”

16. By the impugned order dated 8th January 2020, the learned ASCJ has allowed the aforesaid application under Order VI Rule 17 filed by the respondent. The reasoning, in that regard, is to be found in para 10 of the impugned order, which reads thus:

17. Aggrieved by the aforesaid order, the petitioner, as Defendant 2 in the suit, has invoked the jurisdiction vested in this Court by Article 227 of the Constitution of India.

18. I have heard Mr. Gaurav Duggal, learned Counsel for the petitioner, and the respondent, who appears in person, at considerable length.

19. Mr. Duggal has invited my attention, inter-alia, to paras 8, 12 and 14 of the plaint as well as the prayer clause therein. The prayer clause already stands reproduced hereinabove. Paras 8, 12 and 14 of the plaint read as under:

20. Mr. Gaurav Duggal points out that the remaining prayers in the plaint were dependent on prayer (v), whereunder the respondent had sought return, to the respondent, of possession of the western side of the suit property. That prayer, he points out, was given up by the respondent before this Court on 10th May 1999, in CR 1004/1997. With the abandonment of prayer of restoration of possession, Mr. Duggal submits that the suit survives only as a suit claiming injunctive reliefs. Mr. Duggal submits that a suit claiming injunctive reliefs, without any relief of possession, was itself liable to be dismissed.

21. In these circumstances, he submits that the respondent could not seek to include, in the suit, the prayer for a declaration that, even if any such prayers were included, no such relief could be granted by the Court in view of the proviso to Section 342 of the Specific Relief Act,

1993. Once the relief of possession had been given up, Mr. Duggal submits that the injunctive relief would also not survive for consideration. The allowing of the amendment sought by the respondent, submits Mr. Duggal, has caused serious prejudice to his client. Mr. Duggal places reliance, in support of his submission, on the judgment of the Supreme Court in Padma Sundara Rao v. State of Tamil Nadu[3], specifically on para 9 thereof.

22. Answering the submission of Mr. Duggal, Mr. Y.K. Gupta, the respondent who appears in person, submits that the arguments of Mr. Mittal do not survive for consideration, as, predicated on the ground that, consequent on the abandonment of relief of possession, the suit

34. Discretion of court as to declaration of status or right. – Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. 2002 (3) SCC 533 instituted by the respondent would not survive qua the remaining injunctive reliefs, the petitioner had, in fact, moved an earlier application under Order VII Rule 11 of the CPC before the learned Civil Judge. That application was dismissed by the learned Civil Judge on 10th September 2007, against which the petitioner approached this Court by way of CRP 205/2007. By order dated 10th December 2008, a Coordinate Single Bench of this Court allowed CRP 205/2007 in the following terms:

23. Mr. Gupta submits that, aggrieved by the aforesaid order of this Court, he had approached the Supreme Court by way of Civil Appeal 6841/2017 (Om Prakash Gupta v. Subhash Chand Goel). The Supreme Court disagreed with the reasoning and findings of the learned Single Judge of this Court in his judgment dated 10th December 2008 and allowed the Civil Appeal in the following terms: “We are unable to accept the aforesaid reasoning given by the High Court in support of its conclusion. No doubt, the respondent would have rightly raised the construction on his portion, but the same is to be done in a legalised manner. When the appellant had set up a case that the building plans were not sanctioned and still wanted to raise the construction, there was a cause of action for filing the Suit and, therefore, the plaint could not have been rejected. We, thus, allow this appeal and set aside the impugned order and direct the Civil Court to decide the suit in accordance with law and on its own merits.”

24. At the time of disposal of the aforesaid Civil Appeal 6841/2017, by the Supreme Court, on 3rd April 2017, Mr. Gupta points out that his application under Order VI Rule 17 of the CPC was pending before the learned ASCJ. It cannot, therefore he submits, lie in the mouth of the petitioner, at this stage, to again rake up the issue of maintainability of the suit, once the issue had been laid to rest by the Supreme Court.

25. Insofar as the submission of Mr. Duggal that the relief of declaration could not be sought to be introduced by an amendment, as such a relief could not be granted in law in view proviso to Section 34 of the Specific Relief Act, Mr. Gupta places reliance on the judgment of the Supreme Court in Abdul Rehman v. Mohd. Ruldu[4], specifically underscoring the following passages therefrom:

26. He has also relied on the decision Vemareddi Ramaraghava Reddy and Ors. v. Konduru Seshu Reddy and Ors[5], emphasising para 12 of the report in that case, which reads thus: “In our opinion Section 42 of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the courts have power to grant such a decree independently of the requirements of the section. It follows, therefore, in the present case that the suit of the plaintiff for a declaration that the compromise decree is not binding on the deity is maintainable as falling outside the purview of Section 42 of the Specific Relief Act.”

27. Mr. Duggal, in rejoinder, sought to distinguish the judgment of the Supreme Court in Abdul Rehman[4].

28. Having heard Mr. Duggal, learned Counsel for the petitioner, and the respondent who appears in person, and having considered the material on record in the light of the law that has been settled in that regard, I am of the opinion that the impugned order dated 8th January 2020 dose not invite interference by this Court under Article 227 of the Constitution of India.

29. The parameters of Order VI Rule 17 of the CPC have been exhaustively delineated by several decisions of the Supreme Court including B.K.Narayana Pillai v. Parameshwaran Pillai[6] and Rajesh Kumar Aggarwal v. K.K.Modi[7], the most recent decision being the authoritative pronouncement in Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd[8] (“LIC”, hereinafter).

30. The following passages, from LIC[8] are relevant: AIR 1967 SC 436

(2022) SCC OnLine SC 1128, AIR 2022 SC 4256 “19. It is well settled that the court must be extremely liberal in granting the prayer for amendment, if the court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment, shall suffer irreparable loss and injury. It is also equally well settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the court to allow an amendment if it is of the view that allowing of an amendment shall really sub-serve the ultimate cause of justice and avoid further litigation. In L.J. Leach & Co. Ltd. v. Jardine Skinner & Co.9,, this Court at paragraph 16 of the said decision observed as follows:

16. It is no doubt true that 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…..”

20. Again in T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board,10 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.[9] 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 AIR 1957 SC 357 in its judgment in Charan Das v. Amir Khan11. 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 Koe, 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 Patil12, 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 Shilwant13, when he laid down the principles thus:

AIR 1921 PC 50 1957 SCR 595 ILR (1909) 33 Bom 644

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 Kumar14, this Court held thus:

24. Again in Ganesh Trading Co. v. Moji Ram15, this Court laid down the principles thus:

25. The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defense which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favor of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defense taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. The proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the application for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement. (See South Konkan Distilleries v. Prabhakar Gajanan Naik16 )

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 Corporation17, this Court held thus:

28. In case entitled, G. Nagamma v. Siromanamma19, this Court considered the proposed amendment of the plaint and noticing that neither the cause of action would change nor the relief would be materially affected, allowed the same. This Court in this case noticed that in the plaintiff's suit for specific performance, the plaintiff was entitled to plead even inconsistent pleas and that in the present case, the plaintiffs were seeking only the alternative reliefs. It appears that the plaintiffs had filed a suit for specific performance of an agreement of re-conveyance. By the application under Order VI Rule 17 of the CPC for amendment of the plaint, the appellants were pleading that the transactions of execution of the sale deed and obtaining a document for re-conveyance were single transactions viz. mortgage by conditional sale. They also wanted to incorporate an alternative relief to redeem the mortgage. At the end of the prayer, the plaintiff sought alternatively to grant

AIR 1967 SC 96: (1966) 1 SCR 796 [[L.R.] 19 Q.B. 394 of a decree for redemption of the mortgage. This amendment was permitted by this Court.

29. In Pankaja v. Yellappa (dead) by lrs.20, 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. Rayappan21, 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. Ragu Thilak D. John v. S. Rayappan, (2001) 2 SCC 4

32. In a decision in Vishwambhar v. Laxminarayan (Dead) through Lrs22., this Court held that the amendment though properly made cannot relate back to the date of filing of the suit, but to the date of filing of the application.

33. Again, in Vineet Kumar v. Mangal Sain Wadhera23, this Court held that if a prayer for amendment merely adds to the facts already on record, the amendment would be allowed even after the statutory period of limitation.” (Emphasis supplied)”

31. This Court has had occasion to cull out the principle governing the Order VI Rule 17 of the CPC, from the aforenoted decision in its decision in Amit Bansal v. CSH Power Himoinsa Pvt. Ltd24. The following principles have been found, by this Court, to emerge from the said decisions: “(i) Ordinarily, the Court is required to be liberal while dealing with a prayer for amendment. Prayers for amendment of written statements are required to be treated even more liberally than prayers for amendment of plaints.

(ii) Where the Court finds that declining the prayer for amendment would result in the applicant suffering irreparable loss or injury, the amendment should be allowed. Qua the opposite party who opposes the amendment, the Court is required to examine whether the amendment would result in irreversible injustice; else, it should be allowed.

(iii) There is no absolute bar to allowing an amendment which introduces a cause of action which is, by then, barred by time. While, ordinarily, such an amendment would be refused, the matter ultimately rests with the discretion of the Court and, if the amendment is found necessary in the interests of justice, it would be allowed. The fact that the amendment introduces a relief which, by then, is barred by time is, therefore, merely a consideration to be borne in mind by the Court.

(iv) The ultimate consideration has to be subserving of the cause of justice and avoiding multiplicity of litigation.

(v) All amendments are mandatorily required to be allowed which

(a) do not work injustice to the other side, and (b) are necessary for determining the real questions in controversy between the parties. It must be remembered, in this context, that Courts are ultimately required to adjudicate on the merits of the cases that come before them.

(vi) If an amendment is sought to correct an inefficiency in originally stating the case, it should be allowed. Such an error should be permitted to be rectified by amendment, so long it is not fraudulent, and the remedial steps taken in that regard do not unjustifiably injure accrued rights.

(vii) All amendments which are necessary to determine the real issue in controversy in the suit, should be allowed.

(viii) Amendments which alter or substitute the cause of action originally pleaded should not be allowed.

(ix) Amendments which seek to negate admissions of fact, or which are mutually destructive therewith, should not be allowed. On the other hand, inconsistent pleas and alternative reliefs can be permitted to be introduced by amendment.

(x) An amendment which does not set up a new case, or introduce a new cause of action, but merely amounts to incorporating a different or additional approach to the same facts, should be allowed, even after expiry of limitation.

(xi) The expression “cause of action”, in this context, does not mean “every fact which it is material to prove to entitle the plaintiff to succeed”, which is its normally understood connotation. It only means a new claim made on a new basis constituting new facts. The word “new case” has to be understood as meaning “new set of ideas”.

(xii) An amendment which seeks to introduce an additional relief, the factual basis for which already exists in the plaint as originally filed, should be allowed.

(xiii) An amendment which merely adds to the facts already pleaded should be allowed.

(xiv) Courts should not adopt a hypertechnical approach while dealing with prayers for amendment of pleadings. Technicalities of law should not be allowed to hamper administration of justice.

(xv) In this context, the Court should bear in mind the fact that its objective should be adjudicating and deciding on the competing and conflicting rights of parties, and not punishing parties for their mistakes.

(xvi) If a new cause of action arises during the pendency of a suit, and the plaintiff would be entitled to file a fresh suit based thereon, the plaintiff should be allowed to amend the existing suit and introduce the claim by amendment. Events subsequent to the filing of the suit have, therefore, also to be borne in mind by the Court.

(xvii) The Court examining a plea of amendment is not concerned with the correctness, falsity, or merits of the case that the amendment seeks to set up. The Court should not, therefore, record any findings on the merits of the amendment, or the stand that is sought to be canvassed thereby.”

32. Viewed on the touchstone of these principles and in the backdrop of the facts of the present case, I do not find any ground having been made out to interfere with the impugned order.

33. The objection of Mr. Duggal with respect to the proviso to Order 34 of the Specific Relief Act, in my view, is not of particular relevance insofar as Order VI Rule 17 of the CPC is concerned.

34. While examining an application under Order VI Rule 17 of the CPC, the Court is not expected to enter into the merits of the amendments that are sought to be incorporated. Equally, the Court would not enter into the issue of whether the reliefs which may be sought to be incorporated by amendment have substance, or whether the party seeking amendment is likely to ultimately succeed in obtaining the said relief. In case the reliefs that the plaintiff seek to incorporate by amendment are bereft of substance, it would always be open to the defendant to so establish in trial or, if a case is made out, by way of an application under Order VII Rule 11 of the CPC.

35. In this regard, even the principle that reliefs which are barred by time cannot be allowed to be incorporated by way of amendment under Order VI Rule 17 of the CPC has also been diluted with the passage of time. The prevalent view, as is reflected in LIC[8], is that mere fact that the reliefs which are sought to be incorporated may, by the time amendment application is filed, have become time barred, is not a ground to refuse the prayer for amendment. The Court could always frame an issue in that regard and, in the event a case is therefore made out, decide the issue even as a preliminary issue. The relief, nonetheless, could be permitted to be included by way of an amendment.

36. In the facts of the present case, I am in agreement with Mr. Gupta’s contention that, the petitioner having filed a specific application before the learned ASCJ under Order VII Rule 11 of the CPC, seeking dismissal of the suit on the ground that, after having given up the relief of possession, the suit could not survive merely for injunctive reliefs, and having lost in the said attempt at the level of the Supreme Court, that stand cannot now be allowed to canvassed as a ground to challenge the impugned order passed by the learned ASCJ. The learned ASCJ has observed that the claim to ownership which the respondent sought to include by way of amendment was only in aid of the reliefs which were sought in the suit, as was also observed by his predecessor in the order dated 5th September 1997. That order having been carried up to the Supreme Court, which ruled in favour of the respondent herein, it cannot be said that the amendments that were sought to be incorporated were in any way beyond the case that the respondent had made out in the suit instituted by him. They were merely, as the learned ASCJ correctly holds, clarificatory of the stand that the respondent sought to canvas in the suit, subject, of course, to the claim of the respondent, and the case that the respondent seeks to set out in the plaint, ultimately succeeding.

37. In that view of the matter, I do not deem it necessary to enter into the merits of the issue of whether, in law, in the absence of a prayer for possession, injunctive reliefs could be granted or whether a suit, which merely seeks a declaration and injunctive reliefs, in the absence of a prayer for possession, is likely to be decreed. These are matters which have to be decided by the Court when the suit is heard.

38. Viewed thus, there is no occasion for this Court, in the present proceedings, to interfere, in exercise of its supervisory jurisdiction, with the impugned order dated 8th January 2020 passed by the learned ASCJ in CS 1448/2018.

39. Accordingly, the present petition is dismissed in limine with no order as to costs.

40. However, it is clarified that this Court has merely examined whether the decision of the learned ASCJ to allow the amendments that the respondent sought to incorporate in the plaint was open to interference under Article 227 of the Constitution of India. It has not examined the merits of the amendments or any of other issues of fact or law which have been canvassed before me.

41. This judgment, therefore, shall not influence the learned ASCJ in any manner in adjudicating on the controversies in issue before him in the suit.

42. Pending miscellaneous applications also stand disposed of.

C. HARI SHANKAR, J.

NOVEMBER 4, 2022