Delhi District Court
Vide This Order vs Dvb on 1 June, 2011
IN THE COURT OF MS.RUCHIKA SINGLA
CIVIL JUDGE-01(NORTH) : DELHI
Suit No.1148/1999
Sriniwas v. DVB
Present : None
ORDER:
1. Vide this order, I shall dispose off the application under Order VI rule 17 CPC r/w Order 22 rule 10 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 firstly 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. 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 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 Sriniwas v. DVB Suit No.1148/99 Page 1 of 4 which has became time barred.
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 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 Sriniwas v. DVB Suit No.1148/99 Page 2 of 4 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.
6. The plaintiff has also sought an amendment to the effect that the defendant may be restrained from recovering illegal demand of Rs.41580/- from the plaintiff. It is submitted that the supply has already been disconnected in 2004 and hence, the relief of permanent injunction for restraining the defendant from disconnecting the electricity supply of the connection for non payment of the impugned bill has become infructuous.
7. Counsel for defendant has argued that the connection is lying disconnected since 2004 and hence, the application is time barred. However, perusal of record shows that the plaintiff had always sought withdrawal of this demand by the defendant. This is clear from para 1 of the prayer clause of the previously filed plaint. Hence, it cannot be said that the claiming of this relief is time barred. There is no nexus between the disconnection in 2004 and claiming of this relief. It must be noted that the plaintiff has not claimed any relief of mandatory injunction seeking the defendant to reconnect the Sriniwas v. DVB Suit No.1148/99 Page 3 of 4 electricity supply.
8. Counsel for defendant has argued that the plaintiff has sought the declaration but no proper and-valorem court fees has been affixed with the amended plaint. He has also argued that in the court court fees para, i.e. para 14, the plaintiff has not amended the suit and hence, the application is not maintainable in view of the judgment of Hon'ble High Court of Delhi in Sarjiwan Singh Vs. DVB, 110 (2004) DLT 633". Perusal of record indicates that the plaintiff has sought the amendment in this clause also but it seems that inadvertently the same is missed in the amended plaint. Hence, let the above mentioned discrepancies be removed by the plaintiff by the next date of hearing. The plaintiff has already mentioned that he shall affix the court fees by the next date of hearing. Hence, this objection of the defendant is not maintainable.
9. Further, vide this application, the plaintiff has also sought substitution of NDPL in place of erst-while DVB in view of the un-bundling of the DVB. The defendant has no objection if this prayer is allowed. Hence, allowed. In view of the above discussion, the application u/o 6 rule 17 CPC r/w Order 22 rule 10 CPC is allowed.
Put up for filing of amended plaint and amended memo of parties on 04.8.2011.
Announced in the Open Court [RUCHIKA SINGLA]
Today on 01.6.2011 CIVIL JUDGE-01(NORTH)
DELHI
Sriniwas v. DVB Suit No.1148/99 Page 4 of 4