Delhi District Court
Vide This Order vs Dvb on 7 May, 2011
IN THE COURT OF MS.RUCHIKA SINGLA
CIVIL JUDGE-01(NORTH) : DELHI
Suit No.106/2009
M/s.Aryan Rubber Ind. v. NDPL
Present : None
ORDER:
1. Vide this order, I shall dispose off the application under Order VI rule 17 CPC of plaintiff seeking amendment in the suit. Counsel for defendant has filed its reply to this application. I have heard the arguments of both the parties.
2. Vide this application, the plaintiff seeks to include the claim of declaration in the suit of permanent injunction. It is argued by the counsel for plaintiff that at the time of the final arguments, counsel for defendant took an objection that the present suit is not maintainable as the declaration has not been sought by the plaintiff in view of the judgment of the Hon'ble High Court of Delhi in "Sarjiwan Singh Vs. DVB, 110 (2004) DLT 633" and hence, the suit is not maintainable. Further, counsel for plaintiff argued that the court directed the plaintiff to remove this defect and court notice was also issued. Hence, the present application.
3. The counsel for defendant has argued that the present application is not maintainable as the relief which is claimed is highly time barred. It is argued that the application under Order VI rule 17 CPC categorically states M/s.Aryan Rubber Ind. v.NDPL Suit No.106/2009 Page 1 of 4 that an amendment shall be allowed only if it does not violate the rules of the other law. Further, he has argued that it is settled principle of law that such an amendment cannot be allowed which allows the party to claim such a relief which has became time barred. Counsel for defendant has relied upon number of cases wherein, the same has been held such as "Satender Kumar vs. MCD & Ors 168 (2010) DLT - 15, Nihal Chand vs. MCD & Ors. C.M. (M) No.1116/2004 & C.M. NO.10623/2004, Narayan Singh vs. M/s.Ansal Properties and Industries CR No.959/1996, Tarlok Singh vs. Vijay Kumar Sabharwal 1996(8)SCC 367, Kamleshwar Kishore Singh vs. Paras Nath Singh & Ors., Sarjiwan Singh vs. DVB, Munni Lal vs. Oriental Fire & General Insurance Co. Ltd. & Ors in C.A. No.10337/95".
4. However, reference to case titled as "Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and Others, 1958 SCR 595" is necessary. Reliance can also be placed on "Ganesh Trading Co. v. Moji Ram, (1979) 2 SCR 614" and "A.K.Gupta v. DVC, (1996) 1 SCR 796". In "Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and Others, the Hon'ble Supreme Court has held that:
"We think that the correct principles were enunciated by Batchelor J. in his judgment in the same case, viz., Kisandas Rupchand's case, when he said at pp. 649-650: "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 questions in controversy between the parties".
"The same principles, we hold, should apply in the present case. The amendments do not really introduce a new case, and the application filed by the appellant himself showed that he was not taken by surprise; nor did he have to meet a new claim set up for the first time after the expiry of the period of limitation. For these reasons, we see no merit in the appeal, which is accordingly dismissed with costs".
And in "Ganesh Trading Co. v. Moji Ram" the Hon'ble Supreme M/s.Aryan Rubber Ind. v.NDPL Suit No.106/2009 Page 2 of 4 Court of India has held that:
"It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any mere failure to set out even an essential fact does not, by itself, constitute a new cause of action".
5. In the above mentioned cases, the Hon'ble Court has held that an amendment can be allowed even if it is barred by way of limitation, if the amendment does not introduce a new case. In the present case, the plaintiff has been challenging the legality of the bill since the inception of the suit and hence, no new case is sought to be introduced and the application should be allowed. Moreover, the application had been moved at the instance of the court only.
6. Further, counsel for defendant has argued that in Munni Lal vs. Oriental Fire & General Insurance Co. Ltd. & Ors it has been held that by allowing amendment, the plaintiff cannot be allowed to seek an alternative relief which was available to the plaintiff at the time of the filing of the suit. Hence, it is prayed that the relief of declaration cannot be claimed at this stage.
7. However, the declaration which is sought to be claimed in the M/s.Aryan Rubber Ind. v.NDPL Suit No.106/2009 Page 3 of 4 present suit is not an alternative relief. Infact in a number of cases it has been held that declaration need not be specifically claimed where it is impliedly sought. The same has been held in the cases titled as "K.V.K.Janardhanan v. State of T.N. & Ors., AIR 1995 Mad 179, Unnikrishnan v. Ponnu Ammal & Ors., AIR 1999 Ker 405 & Corporation of the City of Bangalore v. V.M.Papaiah & Ors., AIR 1989 SC 1809". Hence, in view of the above discussion, the application is allowed. Amended plaint is already on record.
Put up for amended Written Statement for 27.5.2011. Shortest date is given as it is one of the oldest cases in the court.
Announced in the Open Court [RUCHIKA SINGLA]
Today on 07.5.2011 CIVIL JUDGE-01(NORTH)
DELHI
M/s.Aryan Rubber Ind. v.NDPL Suit No.106/2009 Page 4 of 4