Delhi District Court
Arun Bhan vs M/S. Bennet Coleman And Co. Ltd. on 1 May, 2012
-1-
IN THE COURT OF SH. SHIRISH AGGARWAL, CIVIL ]UDGE-01
CENTRAL DISTRICT, TIS HAZARI COURT, DELHI
CS No. 260/09
Arun Bhan vs M/s. Bennet Coleman and Co. Ltd.
Date: 01.05.2012
ORDER
1. Vide this Order, I shall dispose of application of the plaintiff under Section 40 of Specific Relief Act and Order 6 Rule 17, r.w Section 151, CPC for amendment of the plaint.
2. By this application, applicant seeks to add para nos. 10A to 10D and amend the title of the suit, paras no. 11 & 13 and prayer the plaint. By these amendments the applicant wishes to include his claim of damages against the defendants. It is submitted by the applicant that proviso of Section 40(2), Specific Relief Act makes it mandatory for the court to allow amendment in the plaint to enable the plaintiff to add its claim of damages.
3. Defendants nos. 1,2,3,5& 7 filed reply to the application of the plaintiff. It is submitted on behalf of the defendants/non-applicants that amendment can not be allowed at such a belated stage and that too when amendment will take away jurisdiction of this court to try the suit as it will be beyond the pecuniary jurisdiction of this court. It Suit No.260/09 Page 1 of 5 -2- is also submitted by the defendants that the new facts are sought to be added by the applicant which can not be permitted. It is also submitted that the applicant seeks to bring about the claim of damages which arises by virtue of filing of the written statement which also cannot be permitted. It is also the contention of the defendant/non-applicants that the grounds on which damages are being claimed are unjust.
4. I have heard the parties and perused the record.
5. It is correctly stated by the applicant by relying upon the judgments passed in the cases of Jagdish vs Har Sarup AIR 1978 Delhi 233 and M.R.K. Rau vs Corporation, City of Bengalore AIR 1992 Karnatka 411, that right to claim damages is inherent in the suit filed for perpetual injunction and mandatory injunction. As per proviso of Section 40 (2) of Specific Relief Act, the court cannot refuse the permission to the plaintiff to include the claim for damages. Amendment brought about under proviso of section 40 (2) of Specific Relief Act, is mandatory whereas it is directory under Order 6 Rule 17, CPC. The applicant has also correctly stated by relying upon judgments passed in the cases of Lakha Ram Sharma vs Balar Marketing Pvt. Ltd. V (2003) SLT 82, in re Vivekananda Nidhi vs Ashima Goswami AIR 1997 Calcutta 340 & Harish Kumar Chaudhary Suit No.260/09 Page 2 of 5 -3- vs Vimal Wadahwan & Anr. 47 (1992) DLT 246 that the amendment in the plaint can not be refused on the ground that the amendment would take away the jurisdiction of the court to try the suit.
6. Therefore, this court can not decline the prayer of the applicant to include the claim for damages by bringing about the amendment in the plaint.
7. The contention of the defendant that new facts are being introduced by way of amendment also does not carry much weight as the facts which are sought to be introduced are relevant for the purpose of claiming damages by the applicant.
8. The contentions of the defendants/non-applicant that the claim of damages is based upon the filing of written statement also does not disentitle the applicant from bringing about the amendment. This is because the cause of action which gives rise to the claim of damages is not really based on the stand of the defendants reflected in their written statement.
9. Under Order 6 Rule 17 of Code of Civil Procedure, parties are at liberty to apply for amendment of pleadings. As per Proviso of the said provision, the party seeking the amendment is required to explain the reason for delay in carrying out the said amendment in case the said amendment is proposed to be carried out after Suit No.260/09 Page 3 of 5 -4- commencement of trial. So far, issues have not been framed. Trial has not commenced. The application is not belated.
10. In the case of Pankhaja & Anr. Vs. Yellapa (D) by LRs & Ors., AIR 2004 SC 4102, it was held by the Hon'ble Supreme Court as follows:
"So far as the Court's jurisdiction to allow an amendment of pleadings is concerned, there can be no two opinions that the same is wide enough to permit amendment even in case where there has been substantial delay in filing of such amendment application. This Court is numerous cases has held that the dominant purpose of allowing an amendment is to minimize the litigation. Therefore if the facts of the case so permits, it is always open to the Court to allow applications inspite of delay and laches in moving such amendment application".
11. In the case of Sampath Kumar Vs. Ayyakannu & Anr., AIR 2002 SC 3369, it was held that amendments which do not alter the basic structure of the suit must be allowed and that mere delay is no ground for refusing the prayer.
12. In the case of Ashok K. Ghosh Vs. Rotary International & Ors., 50 (1993) DLT 339, it was held that amendment applications must be considered liberally.
13. In the case of Vishwa Nath & Anr. Vs. Chaman Lal Khanna & Anr., AIR 1975 Delhi 117, the Hon'ble High Court of Delhi observed "the courts do not punish the litigants for the mistakes they make. Courts of law are not Court of penal jurisdiction. They exist for the sake of doing justice Suit No.260/09 Page 4 of 5 -5-
14. In the case of "Atul Maini Chopra Vs. Adarsh Bhalla, 119 (2005) DLT 593", the Hon'ble High Court of Delhi held that amendment cannot be declined merely on the ground that it is not believable. Merits of the amendment are not to be considered at the stage of examining the amendment application.
15. In these circumstances, the application under Section 40 of Specific Relief Act and Order 6 Rule 17 read with section 151 of Code of Civil Procedure filed on behalf of plaintiff is allowed. The plaintiff is permitted to carry out the proposed amendment. The amended plaint be filed. Application is accordingly disposed off.
Announced in the open court (SHIRISH AGGARWAL)
On 1st Of May' 2012 Civil Judge/CentralÂ01
All pages are signed Delhi
Suit No.260/09 Page 5 of 5