Sh. Harvinder Pal Singh Dua and Another vs Sh. S.K. Mukherjee and Another

Manmohan Singh, J.—By this order, I shall dispose of the application being IA No. 11397/2007 filed by the plaintiff under Order VI Rule 17 CPC seeking amendment of the plaint by including the prayer for specific performance of agreement to sell dated 21st October, 2004.

The plaintiffs are the residents on the ground floor and first floor of 8/70, West Punjabi Bagh, New Delhi-110026. The defendants are also the residents of the same property in the basement and second Floor. The plaintiffs entered into a sale agreement with the defendants for the portion of the property in their possession on 21st October, 2004 for a total sale consideration of Rs. 91,51,000/-. The defendants received the payment of Rs. 65,51,000/- by 11th March, 2005 and cash receipts were issued to the plaintiffs by the defendants for the above said amount.

It is alleged by the plaintiff that the defendants on one pretext or the other avoided to execute the said agreement to sell and started doing illegal construction on the portion in possession of the plaintiffs thereby depriving the plaintiffs of the peaceful enjoyment of their house. It is also alleged that the defendants are constructing on the second floor of the suit property without the proper sanctioned plan, by putting unnecessary extra burden on the building which is, therefore, under the constant threat of being collapsed.

The plaintiff further alleged that on 23rd March, 2006 they appeared before the concerned Sub-Registrar office for execution of the agreement to sell but defendant failed to respond. The plaintiff has pleaded that they have always been ready and willing to perform their part of the contract/agreement and there has been negligence/refusal on the part of the defendants to fulfil their obligations under the agreement.

Thus, the plaintiffs filed the present suit for permanent and mandatory injunction against the defendants for restraining them to sell/dispose of the portion of the property in possession of the plaintiffs and also to restrain the defendants from dispossessing the plaintiffs. During the course of proceedings, the plaintiffs filed the present application being I.A. No. 11397/2007 under Order 6 Rule 17 CPC seeking amendment in the title of the suit to be substituted as under:

Suit for Specific performance, permanent injunction and mandatory injunction.

The plaintiff also sought amendment in para No. 21 of the suit and affixed the ad valorem court fee of Rs. 90,000/- on the plaint. In the prayer clause, following prayer sought to be added:

(a) Pass a decree for specific performance in favour of the plaintiffs and against the defendants, thereby directing the defendants to execute the sale deed of entire ground floor and first floor, in the suit property vide bearing 8/70, Punjabi Bagh (West), Delhi-26 as per the agreement between the parties;

It is a settled law that at the initial stage of the suit, where the pleadings are not complete, the court will not go into the merits of the controversy while adjudicating upon the amendment of the pleadings. If the plaintiff is seeking the amendment of the plaint, he ought to be given an opportunity to establish his case.

Ordinarily under Order VI Rule 17, all amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side and (b) of being necessary for the purpose of determining the real question in controversy between the parties.

In the case of Savitri Minda v. Minda Industries 1997 PTC 257, this Court allowed the amendment of the plaint under Order VI Rule 17 observing that the courts should be liberal in the matter of allowing amendment unless serious injustice or irreparable loss is caused to the other side. The Courts exist to decide the rights of the parties and not to punish them for the mistake they make in the conduct of their cases.

It is also settled law that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts, the amendment is to be allowed. Where the amendment asked for is one that should be granted, the mere fact that it is made under a wrong Section or provision of law does not affect the right of amendment. AIR 1964 AP 104. Where the proposed amendment is merely to amend prayer Clause based on averments made in the plaint and no new ideas are introduced, the amendment could be allowed even at the appellate stage.

In the case of Shri Saif-ul-Islam Co. L.P. v. Roshan Lal Arora 2003 AIHC 2966 (2968) (Del), it was held that where pleadings are defective, amendment would be allowed. It is also settled law that amendments to plead material facts left by oversight and which does not cause prejudice to other side would be allowed. Even if a party or its Counsel is inefficient in setting out its case initially the shortcoming can certainly be removed but however, the party who is put to inconvenience should be suitably paid. The court has to only see that the error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.

The defendants has not denied the alleged agreement to sell dated 21st October, 2004. Therefore, the introduction of relief about specific performance of contract would not change the nature of the suit and amendment can be allowed.

In my view, no new facts are introduced by the plaintiffs nor there is any change in the cause of action by the proposed amendment. The proposed amendment will not prejudice the defendants. Since the suit is at the initial stage, for the purposes of determining the real controversies between the parties and to meet the ends of justice, I am of the opinion that the amendment can be allowed.

The application IA No. 11397/2007 under Order VI Rule 17 CPC is disposed of in the above directions.

CS (OS) No. 572/2006

List the matter on 18th May, 2009 before the Court.