Delhi High Court
Shivraj Gupta & Anr. vs Rajendra Gupta & Ors. on 11 March, 2010
Author: Manmohan Singh
Bench: Manmohan Singh
.* HIGH COURT OF DELHI : NEW DELHI
+ IA No. 5695/2005, IA No. 168/2007, IA No. 4864/2009 and IA
No. 4865/2009 in CS (OS) No. 43/2005
Shivraj Gupta & Anr. ... Plaintiffs
Through: Mr. Vikas Dhawan &
Mr. Abhimanyu Mahajan, Advs.
Versus
Rajendra Gupta & Ors. ... Defendants
Through: Mr. Sudhir Chandra, Sr. Adv. with
Mr. Girish K. Mishra and Mr. Rajesh
Pandit, Advs. for D 2 & 3
Mr. Vaibhav Kumar, Adv. for D 1
Judgment decided on : March 11, 2010
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported
in the Digest? No
MANMOHAN SINGH, J.
1. Fourteen applications filed by the parties are pending for disposal. The details of the same are given as under :
S. No. IA No. Provision of Law Filed by
1. 295/2005 Under Order 39 Rules 1 Plaintiff
& 2 CPC
2. 1218/2005 Under Order 39 Rule Plaintiff
2A CPC
3. 1316/2005 Under Order 39 Rules 1 Plaintiff
& 2 CPC
4. 4697/2005 Under Order 1 Rule 10 Plaintiff
(2) and Order 6 Rule 17
CPC
5. 4715/2005 Under Order 39 Rules 1 Plaintiffs
& 2 CPC No.1 & 2
CS (OS) No. 43/2005 Page 1 of 17
6. 5695/2005 Under Order 39 Rule 4 Defendants
CPC No.2 & 3
7. 7409/2005 Under Order 39 Rules 1 Plaintiff
& 2 CPC No.1
8. 168/2006 Under Order 6 Rule 17 Plaintiffs
CPC
9. 10076/2007 Under Order 39 Rules 1 Plaintiff
& 2 CPC No.1
10. 13326/2007 Under Section 151 CPC Plaintiff
11. 9066/2008 Under Section 151 CPC Defendants
No.1, 2 & 3
12. 4864/2009 Under Order 1 Rule 10 Plaintiff
CPC
13. 4865/2009 Under Order 39 Rules 1 Plaintiffs
& 2 CPC
14 CCP (O) Under Section 11 & 12 Plaintiffs
No.142/2008 of CCA
Both the parties have made their submissions and arguments in the following applications :
(i) IA No. 8695/2005 filed by defendant nos. 2 and 3 under Order XXXIX Rule 4 read with Section 151 of the CPC seeking setting aside of order dated 14.01.2005 as modified on 31.01.2005;
(ii) IA No. 168/2007 filed by the plaintiffs under Order VI Rule 17 of the CPC for amendment of plaint;
(iii) IA No. 4864/2009 filed by the plaintiffs seeking impleadment pf Punjab National Bank, Daryaganj, Delhi - 110006 under Order I Rule 10 of the CPC;
and,
(iv) IA No. 4865/2009 filed by the plaintiffs under Order XXXIX Rules 1 and 2 of the CPC for restraining defendants from using Rs. 90 lac directed to be deposited by one Silvertone Motors Pvt. Ltd.
CS (OS) No. 43/2005 Page 2 of 17
2. The brief facts of the case are that defendant no. 4 is a Private Limited Company by the name of M/s. Hansraj Gupta & Co. Pvt. Ltd. and plaintiff no. 1 and defendant nos. 2 and 3 are Directors therein. Defendant no. 1 is an erstwhile Director of the defendant no. 4 company.
3. The crux of the plaint is that in accordance with the Articles of Association of the company, Defendant no. 1 retired by rotation on 31.12.2004. Despite this retirement, defendant no. 1 participated in the meeting of the Board of Directors of defendant no. 4 held on 06.01.2005 and at the said meeting, defendant no. 1 even voted and the Resolutions were passed. The Minutes of the said meeting have not been handed over to the plaintiffs despite repeated requests for the same. As per the plaintiffs, the act of defendant no. 1 in participating and voting at the meeting dated 06.01.2005 was illegal and unlawful and therefore, the plaintiffs filed the present suit for declaration that the defendant no. 1 ceased to be Director of the defendant no. 4 with effect from 31.12.2004 and that the meeting held on 06.01.2005 and all the Resolutions passed thereat are null and void and for permanent injunction restraining the defendants and their employees etc. from implementing/acting in pursuance to the Resolutions of the meeting dated 06.01.2005. On 14.01.2005 the suit along with interim application was listed before court when an order of status quo was passed in IA No. 295/2005 as the defendant nos. 2 and 3 thereafter had filed the application being IA No. 5695/2005 for vacation of the order dated 14.01.2005.
4. The relevant portion of order dated 14.01.2005 is reproduced CS (OS) No. 43/2005 Page 3 of 17 hereinbelow :
"Status quo as of today be maintained by the parties till the next date of hearing."
The said order was modified on 31.01.2005 and the relevant portion thereof is reproduced hereinbelow :
"In the meanwhile, the status quo orders dated 14 th January, 2005, are modified to the effect that the A.G.M. scheduled to be held on 5th February, 2005, may be held but the decisions in regard to the Directorship of the plaintiffs, if any taken in the A.G.M. shall not be given effect till the next date of hearing."
5. The grounds for setting aside the said order are summarily enumerated below :
(i) The said order grants relief far exceeding the prayer made by the plaintiffs and that the excess of the said order has resulted in/ caused the total ceasing of the functioning of defendant no. 4 company;
(ii) At the time when the said order was first passed, i.e. on 14.01.2005 which was the first hearing in the present suit, this Court did not have the opportunity to peruse the written statements of the defendants as the same had not been filed at that time. At present, the written statements have been filed and a perusal of the same would show this Court that the plaintiffs did not come to Court with clean hands and that the said order was obtained illegally;
(iii) The plaintiffs have since the passing of order dated 14.01.2005 been taking advantage of the same and have acted in a manner so as to deliberately obstruct/ cease the functioning of CS (OS) No. 43/2005 Page 4 of 17 defendant no. 4 which has come about due to freezing of the bank accounts of defendant no. 4 as a consequence of the plaintiffs‟ letters to the bank;
(iv) Subsequent events have occurred since the order dated 14.01.2005 was modified by order dated 31.01.2005 as the latter order directed that the Annual General Meeting (AGM) of defendant no. 4 be held. The AGM was held on 05.02.2005 and defendant no. 1 was re-appointed as Director of defendant no. 4. Of the three Directors who had been appointed at the previous AGM i.e. Sh. Shiv Raj Gupta, Sh. Jayant Gupta and Sh. Uday Gupta one had to retire and as no consensus could be reached, drawing of lots was done and plaintiff no. 2 Sh. Jayant Gupta‟s name was drawn therefore he had to retire on 05.02.2005.
6. In their reply to this application, the plaintiffs have alleged that defendant nos. 1, 2 and 3 deliberately and willfully disobeyed the status quo order dated 14.01.2005 and the said parties have thus acted in contempt of this Court‟s orders. It is alleged that the said defendants issued notice dated 11.02.2005 calling for a meeting of the Board of Directors wherein the Agenda was to remove plaintiff no. 1 from his designation as Director and to give additional powers to defendant no. 1. The said Agenda is stated to be in contempt of the order dated 14.01.2005. Contempt application being IA No. 1218/2005 was filed by the plaintiffs and the same is pending till date. In these circumstances, defendant nos. 2 and 3 are not entitled to variation/setting aside of the said order in law of equity.
CS (OS) No. 43/2005 Page 5 of 17
7. As far as the argument regarding cessation of defendant no. 4‟s activities due to freezing of bank accounts is concerned, the plaintiffs have submitted that the defendants in contempt of the status quo order dated 14.01.2005 attempted to vary the operation of the bank account which was not permitted by the concerned bank. The defendants also systematically changed the working of the defendant no. 4 i.e. the financial transactions which used to be carried out through bank channels were being carried out on cash basis. It has been alleged that defendant no. 4 is currently managing an average of Rs. 7,0,000/- in cash as all the purchases and salaries etc. are being paid in cash. Further, the functioning of defendant no. 4 was smooth till it was being managed by plaintiff no. 1 and defendant no. 2 and it was when plaintiff no. 1 reported the siphoning of funds by a certain party that the defendants in collusion with each other tried to oust the plaintiffs from the management of defendant no. 4. In the written statement, the defendants are silent on the issue of defendant No.1‟s retirement and ceasing to be a Director of defendant No.4.
8. The plaintiffs have admitted sending the letters to the bank as alleged by the defendant nos. 2 and 3, but have clarified that the same were sent to the banks to inform them of the status quo order dated 14.01.2005 in lieu of the defendants‟ attempts to dislodge/ remove plaintiff no. 1 from any position of authority vis-à-vis defendant no. 4 so that no withdrawal etc. was made without joint authorisation of the parties.
9. The order of status quo has been continued till date. CS (OS) No. 43/2005 Page 6 of 17 Multifarious applications have been filed by the parties subsequent to the interim application discussed above. Parties have not argued all the pending applications when the matter was listed before the Court. Plaintiffs‟ contention before the Court is that the Court should consider their application for amendment of plaint and the fresh application for interim relief being I.A. No.4865/2009. On the other hand, the defendants have made the submission that their application under Order XXXIX Rule 4 CPC for vacation of status quo be decided at first place.
10. However, this Court is of the view that the application for amendment of plaint is to be decided first as if the said application is allowed then amendment as sought by the plaintiffs would have repercussions on all pending applications filed by the parties.
11. So, let me first consider the application under Order VI rule 17 being IA No. 168/2007 filed by the plaintiffs for amendment of the plaint. The amendments have been sought as a result of various subsequent events that have occurred after the passing of the order dated 14.01.2005. Allegedly, the defendants have passed Resolutions curtailing and finishing the legal, financial and other powers of plaintiff no. 1 in defendant no. 4 and have increased the powers of defendant no. 1 in furtherance of the Resolutions passed on 06.01.2005 and as such, various subsequent events have occurred which ought to brought on record and for which the amendments sought are prayed to be allowed. The amendments sought by the plaintiffs have been attached to the application as Annexure A.
12. The amendments sought are additional paragraphs 17A to 17 CS (OS) No. 43/2005 Page 7 of 17 F, additions to paragraphs 18, 22 and to the prayer clause. The said paragraphs are reproduced hereinbelow :
"17A. That, the minutes of the meeting of the Board of Directors of the Defendant No. 4 Company, as presented by the Defendants show that one of the resolutions proposed and passed in the meeting of the Board of Directors of the Defendant No. 4 Company was for fixing a date for holding of the annual general meeting of the Defendant No. 4 Company on 5.2.2005. In the said meeting, the Defendants have also shown that there was a draw of lot where the name of Plaintiff No. 2 had come as for being liable to retire by rotation. It is stated that the correctness of the minutes, including the passing of the alleged resolutions is challenged by the Plaintiffs. This Hon‟ble Court had already passed status quo orders on 14.1.2005 in the present suit and thereafter, by an order dated 31.1.2005, only permitted the holding of the Annual General Meeting of the Defendant No. 4 Company to be held on 5.2.2005, but at the same time, ordered that decision in regard to the directorship of the Plaintiffs, if any, taken in the Annual General Meeting shall not be given effect to till the next date of hearing. That, the Annual General Meeting of the Defendant No. 4 Company was held on 5.2.2005 when certain resolutions which sought to affect the status of the Plaintiffs were passed.
17B. It is stated that Plaintiff No. 1 was appointed as „Director-
In-Charge‟ of the Defendant No. 4 Company by a special resolution passed by the members of the Defendant No. 4 Company in an Extraordinary General Meeting held on 12.8.1971 and till date the said resolution has not been in any manner whatsoever revoked by the members in any General Meeting by passing any special resolution. Accordingly, the status of Plaintiff No. 1 as „Director-In- Charge‟ continues and cannot, other than by a special resolution passed in an Extraordinary General Meeting, be revoked or interfered with. The Defendant Nos. 1 to 3 held an Extraordinary General Meeting on 4.6.2005 and, by an ordinary resolution, sought to remove Plaintiff No. 1 as a director and in fact sought to act contrary to the special resolution passed appointing Plaintiff No. 1 as „Director-In-Charge‟ of the Defendant No. 4 Company. It is, therefore, stated that the resolution passed on 4.6.2005 is wholly illegal and null and void inasmuch as the status and conferred upon Plaintiff No. 1 by way of the special resolution passed in the Extraordinary General Meeting of the Defendant No. 4 Company held on 12.8.1971 cannot CS (OS) No. 43/2005 Page 8 of 17 be interfered with and/or revoked by way of an ordinary resolution. Accordingly, Plaintiff No. 1 is entitled to an seeks a declaration that the resolution passed in the Extraordinary General Meeting held on 4.6.2005 is null and void and of no legal consequence and Plaintiff No. 1 continues to be „Director-In-Charge‟ of the Defendant No. 4 Company till his status is interfered with by way of a special resolution, as defined in the Companies Act, 1956.
17C. It is further stated that the Petitioners along with other shareholders of the Defendant No. 4 Company, including Shri Ravi Raj Gupta, Defendant No. 2 and Shri Uday Gupta, Defendant No. 3 had entered into a Shareholders Agreement, by virtue of which they hold majority shares of the Defendant No. 4 Company. That, thereafter, the Plaintiffs, claiming relief under the said Shareholders Agreement had filed a petition, being OMP No. 218 of 2005, under Section 9 of the Arbitration and Conciliation Act, 1996 inter alia against Defendant Nos. 2 and 3 whereby this Hon‟ble Court, by an order dated 27.6.2005 was pleased to direct that the resolution passed in the Extraordinary General Meeting held on 4.6.2005 by the Defendant No. 4 would not be given effect to. The said order continues and is subsisting as on date. It is also stated that at the time of the Annual General Meeting of the Company held on 5.2.2005, with the permission of this Hon‟ble Court, the Plaintiffs had also filed a similar petition, being OMP No. 42 of 2005, under Section 9 of the Arbitration and Conciliation Act, 1996 inter alia against Defendant Nos. 2 and 3 whereby this Hon‟ble Court, by an order dated 4.2.2005 was pleased to direct that the resolution passed in the Annual General Meeting scheduled to be held on 5.2.2005 by the Defendant No. 4 Company affecting the Directorship of the Plaintiffs, if any, would not be given effect to. The said order continues and is subsisting as on date.
17D. The Plaintiff No. 2 called a meeting of the Board of Directors of the Defendant No. 4 Company to be held on 20.6.2005. One of the items on the agenda was to consider a notice dated 15.6.2005 sent by Defendant No. 1, purporting to act as director of the Defendant No. 4 Company and convening a meeting of the Board of Directors of the Defendant No. 4 Company to be held on 21.6.2005. The said Board Meeting dated 20.6.2005 was not attended by Defendant Nos. 2 and 3 or by Defendant No. 1 to whom a copy was marked in view of the status CS (OS) No. 43/2005 Page 9 of 17 quo orders passed by this Hon‟ble Court. In the said meeting where the quorum was complete with the participation of the Plaintiffs, a resolution was passed whereby Defendant No. 1 was called upon by Defendant No. 4 Company to withdraw his letter/notice dated 15.6.2005. A further resolution was also passed whereby it was resolved that the powers entrusted to the directors, prior to the status quo order shall continue to operate. Defendant Nos. 1 to 3, however, acting in concert and collusion with each other, held a meeting (no notice of the alleged meeting was served on Plaintiff No. 1), purporting to be a meeting of the Board of Directors on 21.6.2005 when resolutions were alleged to have been passed whereby the powers of Plaintiff No. 1 enjoyed as Director were sought to be removed as well as further resolution was passed whereby the power to call and/or convene a Board Meeting was exclusively conferred upon Defendant Nos. 1 and 2. It is, inter alia, the case of the Plaintiffs that the said resolution is patently illegal and contrary to the Articles of the Defendant No. 4 Company inasmuch as the power to convene a Board Meeting is available to be exercised by all the directors and, therefore, the Board of Directors could not have passed any resolution which is contrary to the Articles of Association of the Defendant No. 4 Company. In this regard, the Plaintiffs refer to Article 110 of the Articles of Association of the Defendant No. 4 Company. The Defendants further have alleged to have passed a resolution whereby all powers, legal as well as financial, have been conferred upon Defendant No. 1 and Defendant No. 2 to be exercised jointly by them. The Plaintiffs state that no such power could be conferred on Defendant No. 1 whose directorship is directly in dispute in the present suit and in view of the status quo orders already having been passed by this Hon‟ble Court.
17E. The plaintiffs state that at no point of time were they ever informed of the resolution alleged to have been passed in the meeting purporting to be meeting of the Board of Directors of the Defendant No. 4 Company held on 21.6.2005. That, even thereafter, proceeding were held in this Hon‟ble Court in the present suit on 7.7.2005, when Defendants did not disclose the alleged resolution which was not only patently illegal and in contempt of the orders of the court, but also contrary to the Articles of Association of the Defendant No. 4 Company. Another meeting, purporting to be a meeting of the Board of Directors was held on 26.9.2005 when, for the first time, the Plaintiffs were informed of the resolution having been CS (OS) No. 43/2005 Page 10 of 17 passed in a meeting of the Board of Directors allegedly held on 21.6.2005 whereby the power to convene the Board Meeting was restricted to only two directors, i.e. Defendant Nos. 1 and 2. The plaintiffs protested to such a resolution and also alleged in the said meeting that the minutes had been fabricated and no such resolution had been passed and /or could have been passed. Despite the objection and/or protest of the Plaintiffs, Defendant Nos. 1 to 3 acting in concert and collusion with each other, sought to confirm the said resolution(s), which was patently illegal, unlawful and contrary to the Articles of Association of the Defendant No. 4 Company. The Plaintiffs, by a letter dated September 24,2005 had proposed additional agenda items for the meeting of the board of directors which was to be held on 26.9.2005, which additional agenda items were refused by Defendant Nos. 1 to 3 to be discussed in the meeting of the Board of Directors on the specious ground that the Plaintiffs had no power or authority to convene a board meeting to propose additional agenda items. It is pertinent to mention that the additional agenda items bring out the fraudulent and illegal acts of Defendant Nos. 1 and 2 together with other erstwhile Director of the Defendant No. 4 Company resulting in loss of crores of rupees to the Defendant No. 4 Company.
17F. In these circumstances, the Plaintiffs are seeking an additional relief praying for a declaration that the resolution alleged to have been passed in the Extraordinary General Meeting held on 4.6.2005 as well as the resolution alleged to have been passed in the Board Meetings held on 14.2.2005, 21.6.2005, 26.9.2005 be declared as null and void and, consequently, the Defendants, their agents, employees, their representatives be permanently injuncted from acting in furtherance with a view to giving effect to the resolution passed in the aforesaid Extraordinary General Meeting and/or meeting purporting to be meeting of the Board of Directors of the Defendant No. 4 Company.
In paragraph 18, at the end, the following lines are sought to be added:-
That cause of action also arose on 14.02.2005 when the Defendant Nos. 1 to 3 acting in collusion with each other attempted to dilute powers of the Plaintiff No. 1. That cause of action also arose on 4.6.2005, when in the CS (OS) No. 43/2005 Page 11 of 17 Extraordinary General Meeting of the Defendant No. 4 Company, the Defendant Nos. 1 to 3 attempted to remove the Plaintiff No. 1 by passing an ordinary resolution. That cause of action also arose on 21.6.2005, when the Defendant Nos. 1 to 3 acting in collusion with each other sought to remove powers conferred and enjoyed by Plaintiff No. 1 in the Defendant No. 4 Company and allegedly passed a resolution restricting the right to convene a Board Meeting of the Defendant No. 4 Company only to Defendant Nos. 1 & 2. The cause of action further arose on 26.9.2005, when for the first time, the Plaintiffs were informed of the alleged resolutions purported to have been passed in the meeting purporting to be a meeting of the Board of Directors held on 21.6.2005.
In paragraph 22, the following sub-paragraphs (iv) and (v) is sought to be added:-
(iv) For the purpose of relief of declaration in terms of prayers (ca) and (cb), the suit is valued at Rs. 20 each, on which fixed court fee of Rs. 20 each is affixed;
(v) For the purpose of relief of permanent injunction in prayer (cc), the suit is valued at Rs. 130 on which a fixed court fee of Rs. 30 has been affixed.
In the prayer clause prayers (ca), (cb) and (cc) are proposed to be added as under:-
(ca) pass a decree of declaration in favour of the Plaintiffs and against the Defendants declaring that Plaintiff No. 1 continues to be a „Director-In-Charge‟ of the Defendant NO. 4 Company till his status is changed and/or is removed by a special resolution passed in a General Meeting of the Defendant No. 4 Company; (cb) pass a decree of declaration in favour of the Plaintiffs and against the Defendants declaring that the resolution passed in the Extraordinary General Meeting of the Defendant No. 4 Company held on 4.6.2005 as well as the resolution passed in the meetings of the Board of Directors of the Defendant No. 4 Company held on 14.2.2005, 21.6.2005 and 21.9.2005 are null and void and cannot be given effect to;
(cc) pass a decree of permanent injunction against the CS (OS) No. 43/2005 Page 12 of 17 Defendants, their agents and employees restraining them from acting in furtherance of and/or pursuant to and/or giving effect to and/or implementing any of the resolutions passed in the meeting held on 14.2.2005, 21.06.2005 and 26.09.2005 purporting to be a meeting of the Board of Directors of the Defendant No. 4 Company.
13. No reply has been filed by the defendants despite having been granted opportunity vide order dated 01.04.2008.
14. Learned counsel for defendant nos. 2 and 3 has submitted that the plaintiffs have been attempting to pause/stop/ruin the functioning of defendant no. 4 by the present as well as various other applications. The defendant no. 4 is a Private Limited Company and functions by way of majority vote of the Board of Directors. Since the plaintiffs are in minority and cannot achieve their objectives through the Board of Director‟s vote, they are resorting to filing application after application for furthering their mala fide objectives.
15. It is also argued by the learned counsel for defendant nos. 2 and 3 that the prayer sought in the suit is limited and does not allow the present application for amendment being allowed as the ambit of the suit is limited to the extent of passing a Decree for declaration in favour of the plaintiffs and against defendant no. 1 declaring that the defendant no. 1 ceased to be Director of defendant no. 4 with effect from 31.12.2004 and the meeting held on 06.01.2005 and all the Resolutions passed in the said meeting be declared as null and void and not be given any effect thereto. The learned counsel for the defendant nos. 2 and 3 has argued that in view of the modification order dated 31.12.2005 in fact the suit has already become infructuous and is liable to be CS (OS) No. 43/2005 Page 13 of 17 dismissed. He argued that as to whether defendant no. 1 is a director or not and whether defendant no. 4 company is being run properly or not, that is not the interpretation of the status quo order of this Court and the function of defendant no. 4 company cannot be monitored in civil proceedings. He submitted that the Agenda of the meeting dated 06.01.2005 was very limited to the extent that it was for taking a decision as regards the illegal occupation by plaintiff no. 1 of the farmhouse which is property belonging to defendant no. 4 company. A criminal complaint and civil suits have been filed by the defendants in respect of the illegal occupation by the plaintiff no. 1.
16. On the other hand, learned counsel for plaintiffs has argued that at the time of considering the application for amendment of plaint, the merit of the matter is immaterial. However, he has submitted that all the subsequent acts done by defendant nos. 2 and 3 after passing of the status quo order are what the plaintiffs want to bring on record. He has argued that in fact, all the subsequent meetings held by the defendants and Resolutions passed thereon are illegal and in violation of the status quo order passed by the Court. He submitted that as a matter of fact by virtue of the amendments sought, the plaintiffs want to bring subsequent events before this Court in order to determine the real controversy between the parties. He argued that by virtue of this amendment, the nature of the suit would not be changed nor the cause of action.
17. After considering the rival submissions of the parties I agree with the learned counsel for the plaintiffs that at the stage of amendment of the plaint, merit of the case may not be looked into. As regards the CS (OS) No. 43/2005 Page 14 of 17 objections raised by the defendants that the ambit of the suit is very limited therefore amendment should not be allowed, I am of the view that since the plaintiffs have sought amendment on the basis of subsequent events which have occurred after passing of the status quo order, there is no impediment in bringing the said facts on record as the main controversy between the parties is already mentioned in the plaint. Whether the suit is maintainable or not, the said issue is a matter of merit which cannot be decided at this stage, therefore, the amendment application cannot be rejected on the objections raised by the defendants.
18. This takes me to the discussion of the law of amendment. It is 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. In Sarbjyot Kaur Saluja & Ors. Vs. Rajender Singh Saluja, 148 (2008) DLT 650 it was observed that:-
"The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down in various precedents. This is no more res integra that the purpose and object of Order 6 Rule 17 is to allow either party to alter or amend his pleading in such manner and on such terms as may be just but it is equally true that the amendment cannot be claimed as a matter of right and under all circumstances. However, the Courts while deciding prayer for amendment should not adopt a hyper-technical approach and liberal approach should be the general rule particularly in cases where the other side can be compensated with costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled CS (OS) No. 43/2005 Page 15 of 17 for multiplicity of litigation. It is also no more res integra that pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of trial or after conclusion thereof. Mere delay usually cannot be a ground for refusing a prayer for amendment because merits of amendment sought to be incorporated by way of amendments are not be judged at the stage of allowing prayer for amendment. The Apex Court in G. Nagamma v. Siromanamma, (1996) 2 SCC 25, at page 26 had held that it is settled law that the plaintiff is entitled to plead even inconsistent pleas. In this case, the plaintiff were seeking alternative reliefs. The application for amendment of the plaint whereby neither cause of action could change nor the relief could be materially affected, was allowed. In another case, AIR 1995 SC 1498, Akshay Restaurant v. Panjanappa and Others the matter pertained to amendment of plaint and the application for amendment was allowed though different stands were taken by the plaintiff."
19. It is trite that the court will not go into the correctness and falsity of the amendment while deciding whether the amendment should be allowed or not. The merits of amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing prayer for amendment (see Rajesh Kumar Aggarwal & Ors. Vs. K.K. Modi, (2006) 4 SCC 385 and Lakha Ram Sharma v. Balar Marketing Pvt. Ltd., 2006 (2) SCALE 363).
20. Considering the overall circumstances of the matter I am of the view that the amendment sought by the plaintiffs is to be allowed. The plaintiffs are given four weeks time to file the amended plaint with an advance copy to the learned counsel for the opposite side, who may file the written statement to the amended plaint four weeks thereafter. IA No. 8965/2005, IA No. 4864/2009 and IA No. 4865/2009
21. Since the amendment of the plaint has been allowed in IA No. 168/2007, these applications will be considered after the completion CS (OS) No. 43/2005 Page 16 of 17 of pleadings in the main suit.
22. List this matter before the Joint Registrar on 19th April, 2010.
MANMOHAN SINGH, J.
MARCH 11, 2010 Jk CS (OS) No. 43/2005 Page 17 of 17