Pritpal Singh vs Harmesh Kumar

K. Kannan, J.—The revision petition is against the order dismissing an application filed by the defendant to recall the order for cancellation of the amended plaint being taken on record. The unusual prayer was under the following circumstances. The plaintiff had filed a suit for injunction and during the pendency of suit the plaintiff had sought for bringing an amendment to his plaint for the relief of specific performance. While asking for the amendment, the plaintiff had not set forth the details of amendment which he proposes to bring by specifically setting out the amended pleadings that would be in place, if the petition were to be allowed. The Court allowed the application for amendment to bring a relief of specific performance in suit. It was at that time that the plaintiff presented an amended plaint introducing several new paragraphs in the entire body of plaint to make it compatible with the relief of specific performance which he was permitted to bring by the amendment. The objection taken by the defendant through an independent application was that the plaintiff had breached the mandate of the High Court Amendment of Order 6 Rule 17 which specifically provided that every application should set out the words or paragraphs to be added, omitted or substituted from the original pleading. The Court has rejected the application and the revision is against the said order.

Learned counsel for the petitioner points out to me the amended provisions of High Court Amendment of Order 6 Rule 17 which reads as follows:-

(2) Every application for amendment shall be in writing and shall state the specific amendments which are sought to be made indicating the words or paragraphs to be added, omitted or substituted in the original pleading.

Admittedly the plaintiff had not brought all the details of amendment which he was going to bring in the original petition. I have seen through the objection filed by the present petitioner in the previous application filed for amendment. This objection that the petition did not contain the details of amendment as required in law must have been taken at that stage itself. The lapse of the petitioner was not brought home at that time and the Court had also allowed the application to bring amendment for introducing the relief of specific performance. It cannot be merely in a vacuum. If the Court allowed the application for converting relief of injunction as a suit for specific performance, the plaintiff could sustain the relief only if there are necessary pleadings setting out the details of agreement which had not been already set forth in his suit for injunction. The objection taken by the defendant at the earlier occasion when the petition for amendment was moved was only that the plaintiff had not set out the details of amendment and it was vague. This was surely not an appropriate defence under the circumstances but it must have been more specific. If that order allowing amendment was not set aside, it could not be objected later, in the manner done now.

I definitely note that the plaintiff had breached an important feature that he had to confirm to by virtue of High Court Amendment to the provisions under Order 6 Rule 17. It is again not merely a formality but it is an essential ingredient to ensure that the plaintiff was not bringing a wholly new cause of action or which will withdraw him from admission or which would have taken away a plea of limitation which the defendant could have taken when the application for amendment was moved. In this case, none of the three circumstances which would normally be relevant for consideration of amendment to the plaint arise. The suit for injunction filed is sought to be amended for specific performance of an agreement of sale which was said to have been executed on 15.7.2010. The plaintiffs action for amendment could not have been barred by limitation if a suit were to be filed on the day when the amended plaint was presented: There was no question of any admission made with reference to the document which the plaintiff would withdraw and therefore an objection regarding prejudice in that regard also does not arise.

The argument still is by the counsel that the suit would itself be barred under Order 2 Rule 2 CPC. In my, view, it is a wrong understanding of the provision of Order 2 Rule 2 CPC to contend that a suit for injunction cannot be brought through an amendment for specific performance and Order 2 Rule 2 CPC will be a bar. The said provision will operate only to a subsequent suit which seeks for a particular relief that must have been taken in the previous suit itself. If the suit were to contain one relief and yet another relief is sought to be brought through an amendment, the question of applying Order 2 Rule 2 CPC does not arise at all. Perhaps, this principle is misunderstood and some decisions have taken such a view. I am not detailing all those decisions which have taken the issue of Order 2 Rule 2 bar even at the time of amendment, for, it is unnecessary to put in this case. It can await a future litigation to expatiate on this principle.

I have gone through the plaint in the manner that is amended and I am convinced that the defendant is not likely to be prejudiced in any way by the defence. Therefore, I will find no reason for interfering in the jurisdictional ambit of Article 227 of the Constitution, since the jurisdiction will be exercised not to set aside even a wrong order, so long as there is no illegality in the order or no prejudice could be seen to have been caused by the defendant.

The order of the court below is maintained, although for different reasons. The civil revision is dismissed. Needless to state that none of these observations which are made will prevent the defendant from taking any defence which he thinks is appropriate to meet the averments in the plaint.