Kumar Aggarwal & Ors Vs. K.K. Modi
& Ors  Insc 138 (22 March
& Dr. Ar. Lakshmanan
Dr. Ar. Lakshmanan, J.
above appeals were filed against the final order dated 27.08.2001 passed by the
High Court of Delhi in FAO (OS) No.35/2000 and C.M. No. 387/2001 whereby the
High Court of Delhi allowed the appeal of the respondents.
The short facts of the case are as
Deed of Trust dated 01.05.1979, a Trust in the name and style of Modipon Limited Senior Executives (Officers) Welfare Trust
was formed. The said Trust was formed for the general benefit of employees
employed in the Fibre Division only of Modipon Limited and the purpose was to provide benefits to
such employees and dependent members of their families particularly for the
purposes of giving them education, medical relief, facilities for sports,
cultural and other activities on sound, permanent and organized basis.
appellants are beneficiaries of Modipon Limited
Senior Executive (Officers) Welfare Trust. The respondents (defendant Nos. 1-4)
are Trustees of the Trust and respondent No.5 is the Secretary of the Trust.
The Trust purchased 19,314 equity shares of Godfrey Philips (India) Limited (in short 'GPI') in the
name of respondent No.1 in his capacity as a trustee of the Trust. GPI issued
bonus shares in the ratio of 1:1 to its existing shareholders. Bonus shares
were issued in the ratio of 1:1 in the year of 1992-93. By reason of the above,
the Trust became entitled to 57,942 shares of GPI.
to the appellant, the bonus shares issued have not been forwarded to the Trust
and the share certificates despatched by GPI from
time to time were not received by the Secretary of the Trust. It was further
stated that a new account was opened by respondent No.1 at Oriental Bank of
Commerce in his name and not in the name of the Trust and is being operated by
respondent No.1. Since the beneficiaries of the Trust were not deriving any
benefit from the Trust and as such the appellants were constrained to file a suit
for declaration, permanent injunction and mandatory injunction in the High
Court of Delhi, which was registered as Suit No. 181/97, against the
respondents claiming following amongst other reliefs:-
decree for declaration that defendant no.1 is not a fit and proper person to
continue as trustee of Modipon Limited Senior
Executive Welfare Trust;
decree directing that defendant no.1 is removed from such office by the orders
of this court;
decree of permanent injunction restraining defendant no.1 and/or his servants,
agents and assignees from operating the saving account No.9089 opened in
Oriental Bank of Commerce, New Friends Colony, New Delhi;
decree by way of mandatory injunction restraining defendant no.1 from
depositing the dividend/bonus shares received in future from GPI in the account
opened by him with defendant no.6 at Delhi and simultaneously directing him to
forward the same to the secretary of the trust;
decree of mandatory injunction in favour of the
plaintiff to direct defendant no.1 to hand over the relevant Bonus Share
Certificate in account to 9089 and dividend amounting to Rs.
15,64,434.00, or any other amount of GPI to the secretary of the Trust , i.e.
defendant no.5 herein;
pass such other order or further order/ orders as this Court may deem fit
and proper in the facts and circumstances of the case.
statement was filed on behalf of respondent Nos. 1 & 5 before the High
Court. On 23.09.1998, the appellants filed an application being I.A. No.
8479/1998 under Order VI Rule 17 read with Section 151 C.P.C. seeking leave of
the Court to amend the plaint and to incorporate the following amendments to
the original plaint of the appellants:- "12(a)
The beneficiaries of the trust are not deriving any benefit from the creation of
the Trust since 1991-1992 and as such the object of the Trust has been
frustrated. The Trust as of date owns 77256 shares of GPI, but 57942 of the
shares are in the exclusive power and possession of defendant no.1. Only 19314
shares of GPI are in the possession of defendant no. 5 being the Secretary of
the Trust. It is stated that GPI declared a dividend of Rs
7/- per share in the year 1996-1997 when the market price of the shares was
between Rs. 250-300/- per share which means a mere
2.5% return on the investment per annum. If the said GPI shares were to be sold
and then invested in Government Bonds/ Securities the investment would yield a
minimum (return of 10% to 12% per annum). It is pertinent to mention that since
1991-92, even the dividend declared on GPI shares are being solely appropriated
by the defendant no.1 to the exclusion of the beneficiaries.
defendant no.1 who is holding the said shares of the
Trust is deriving benefit by holding the shares, the beneficiaries of the Trust
are being deprived from the benefit which they are entitled to. It is in the
interest of justice that the said shares may be sold and then invested in
Government Bonds and/or Securities which will be in interest of beneficiaries,
because at present the beneficiaries are not deriving any benefit by virtue of
the said shares which are in power and possession of defendant no.1 as is
evident from the records of the case.
the appellants sought amendment in paragraph 15 and want to incorporate relief
of mandatory injunction as per prayer (b-1) to be read as under:-
____________________________________________________________ RELIEF VALUATION
FOR COURT FEE COURT FEE THE PURPOSES OF PAID JURISDICTION For the Relief of
Mandatory Injunction Rs. 130.00 Rs.130.00 Rs.13.00
(as per prayer b-1) herein
____________________________________________________________ Pass a decree of
Mandatory injunction directing the defendants to sell the shares of GPI held by
the Trust and use the sale proceeds thereof for the benefit of the beneficiaries."
The application was filed under Order VI Rule 17 C.P.C. Respondent No.1 filed
reply to the said application. The appellants filed their rejoinder to the
reply of respondent No.1 to the said application.
learned single Judge of the High Court, vide his order dated 31.08.1994,
allowed the application of the appellant seeking relief of amendment to the
No.1 herein filed First Appeal against the order of the learned single Judge
which was registered as FAO (OS) No. 35/2000 whereby the learned single Judge
had allowed the application of the appellants seeking the relief of amendment
of plaint. The Appellate Court allowed the appeal filed by respondent No.1 and
dismissed the application of the appellants for amendment of plaint on the
ground that the proposed amendment introduces a totally different, new and
inconsistent case and that the application does not appear to have been made in
good faith and at the instance of some one behind the curtain. Aggrieved
against the said order, the above civil appeals have been filed. We heard Mr. Mukul Rohtagi, learned senior
counsel appearing for the appellants and Mr. S. Ganesh,
learned senior counsel appearing for the contesting respondents along with
other counsel for the parties.
and lengthy submissions were made by learned senior counsel appearing on either
side by inviting our attention to the pleadings, annexures
filed and the judgments impugned. Mr. Mukul Rohtagi submitted that the High Court is not justified in
disallowing the amendment of the plaint so as to defeat the valuable rights of
the appellants. He would further submit that the Court was not correct in
dismissing the application in view of the settled position of law that all
amendments of pleadings should be allowed which are necessary for determination
of the real controversies in the suit and that the amendment proposed by the
appellant was necessary for determining of the real controversies in the suit.
This apart, the Division Bench was not right in rejecting the application at
the stage of amendment when it is settled law that the Court does not enter
into merits at the stage of amendment. According to Mr. Rohtagi,
the appellants sought an amendment that the shares be sold and then invested in
Government Bonds and/or securities which will be in the interest of
beneficiaries because presently the beneficiaries were not deriving any benefit
by virtue of the said shares which are in power and possession of respondent
No.1 as is evident from the records. Mr. Rohtagi,
learned senior counsel for the appellants, in support of his contention placed
strong reliance on the following three judgments of this Court being M/s Ganesh Trading Co. vs. Moji Ram (1978) 2 SCC 91, Jai Jai Ram Manohar Lal vs. National Building Material Supply, Gurgaon, 1969 (1) SCC 869 = AIR 1969 SC 1267, Ragu Thilak D. John vs. S. Rayappan
and Others (2001) 2 SCC 472.
contra, Mr. Ganesh, learned senior counsel for the
respondent submitted that the judgment of the Division Bench is completely in
line with the settled legal position that an application for amendment of a
plaint will not be allowed if it seeks to introduce into the plaint a new and
different case which is inconsistent with the case originally made out in the
plaint or, if the amendment has not been moved bona fide or in good faith, but
only for the purpose of achieving some collateral/objective which is not bona
fide. According to Mr. Ganesh, the amendment sought
to be introduced by the appellants amendment
application set up a case which was altogether new and different and also
directly contrary to and inconsistent with the case made out in the original
plaint. In this connection, Mr. Ganesh invited our
attention to several paragraphs in the pleadings filed by both the parties. It
was contended that the case made out in the original plaint is one that is
confined strictly and solely to respondent No.1/Defendant No.1 alone and the reliefs prayed for are also on that basis and footing.
contrast, the new case sought to be made out by amending the plaint is against
all the respondents, and this is clear from the submissions and contentions set
out in the proposed prayer (b-1) which is directed against all the respondents
and not merely against respondent No.1. He would further submit that the case
made out in the original plaint was based on the Deed of Trust dated 01.05.1979
and the appellants purport to seek to enforce their right as beneficiaries in
terms of the said Deed of Trust.
contrast, the case which was sought to be made out in the proposed amendments
was directly contrary to and in consistent with the specific terms of the said
Deed of Trust dated 01.05.1979. Therefore, the appellants by
moving these amendments seeking an order for realisation
of the investments held by the Trust and the investment of such monies in a
different manner that is a change or alteration of the investments. It
was further submitted that the contentions put forward by the
appellants/plaintiffs in the original plaint were based on the provisions of
Sections 60 and 61 of the Indian Trusts Act which provide that the beneficiary
of a Trust has a right, subject to the provisions of the Trust, to have the
Trust property protected, and the Trustees compelled to perform their duties
and restrained from committing any contemplated or probable breach of Trust. In
other words, Sections 60 and 61 of the Trusts Act authorise
the beneficiary to enforce the instrument of the Trust as against the Trustees
and to enforce the implementation of the terms of the instrument of the Trust.
The case which was sought to be made out in the proposed amendments was totally
alien and extraneous to the ambit and purview of Sections 60 and 61 of the
in the proposed amendments, the appellants seek an order for a material
amendment and a complete re-writing of the instrument of the Trust, which is
directly contrary to what is contemplated and provided by Sections 60 & 61.
It was also submitted that the proposed amendments are also utterly lacking in bonafides or good faith and that the suit was targeted at
Mr. K.K. Modi respondent No.1/Defendant No.1 and the only
object of the suit was clearly to ensure that K.K. Modi
Group would be denied the voting power in respect of the GPI shares held by the
Trust. Our attention was also drawn to the various IAs
filed and argued before the High Court and the orders passed thereon.
Concluding his argument Mr. Ganesh submitted that the
present application for amendment is an abuse of the process of Court and this
Court ought not to entertain such frivolous applications. Mr. Ganesh, in support of his contention, relied on the
vs. K.N. Modi and Others, (1998) 3 SCC 573,
Sir John Beaumont and Sir Lionel Leach, AIR (37) 1950 PC 68,
and Others vs. D.R. Nanjappa Gounder
(dead) and Others, AIR 1978 Madras 285 FB.
have carefully gone through the relevant pleadings, annexures
and the judgment rendered by the learned single Judge and of the learned Judges
of the Division Bench of the High Court.
Order 6 Rule 17 of CPC reads thus:
"17) Amendment of Pleadings –
court may at any stage of the proceedings allow either party to alter or amend
his pleadings in such manner and on such terms as may be just,
and all such amendments shall be made as may be necessary for the purpose of
determining the real questions in controversy between the parties:
that no application for amendment shall be allowed after the trial has
commenced, unless the Court comes to the conclusion that in spite of due
diligence, the party could not have raised the matter before the commencement
of trial." This rule declares that the Court may, at any stage of the
proceedings, allow either party to alter or amend his pleadings in such a
manner and on such terms as may be just. It also states that such amendments
should be necessary for the purpose of determining the real question in
controversy between the parties. The proviso enacts that no application for
amendment should be allowed after the trial has commenced, unless the Court
comes to the conclusion that in spite of due diligence, the party could not
have raised the matter for which amendment is sought before the commencement of
object of the rule is that Courts should try the merits of the case that come
before them and should, consequently, allow all amendments that may be
necessary for determining the real question in controversy between the parties
provided it does not cause injustice or prejudice to the other side.
VI Rule 17 consist of two parts whereas the first part
is discretionary (may) and leaves it to the Court to order amendment of
pleading. The second part is imperative (shall) and enjoins the Court to allow
all amendments which are necessary for the purpose of determining the real
question in controversy between the parties.
view, since the cause of action arose during the pendency
of the suit, proposed amendment ought to have been granted because the basic
structure of the suit has not changed and that there was merely change in the
nature of relief claimed. We fail to understand if it is permissible for the
appellants to file an independent suit, why the same relief which could be
prayed for in the new suit cannot be permitted to be incorporated in the
discussed above, the real controversy test is the basic or cardinal test and it
is the primary duty of the Court to decide whether such an amendment is
necessary to decide the real dispute between the parties. If it is, the
amendment will be allowed; if it is not, the amendment will be refused. On the
contrary, the learned Judges of the High Court without deciding whether such an
amendment is necessary has expressed certain opinion and entered into a
discussion on merits of the amendment. In cases like this, the Court should
also take notice of subsequent events in order to shorten the litigation, to
preserve and safeguard rights of both parties and to sub-serve the ends of
justice. It is settled by catena of decisions of this Court that the rule of
amendment is essentially a rule of justice, equity and good conscience and the
power of amendment should be exercised in the larger interest of doing full and
complete justice to the parties before the Court. While considering whether an
application for amendment should or should not be allowed, the Court should not
go into the correctness or falsity of the case in the amendment. Likewise, it
should not record a finding on the merits of the amendment and the merits of
the amendment sought to be incorporated by way of amendment are not to be
adjudged at the stage of allowing the prayer for amendment. This cardinal
principle has not been followed by the High Court in the instant case.
shall now consider the proposed amendment and to see whether it introduces a
totally different, new and inconsistent case as observed by the Hon'ble Judges of the Division Bench and as to whether the
application does not appear to have been made in good faith. We have already
noticed the prayer in the plaint and the application for amendment. In our
view, the amendment sought was necessary for the purpose of determining the
real controversy between the parties as the beneficiaries of the Trust. It was
alleged that respondent No.1 is not only in exclusive possession of 57,942
shares of GPI and the dividend received on the said shares but has also been
and is still exercising voting rights with regard to these shares and that he
has used the Trust to strengthen his control over GPI. Therefore, the proposed
amendment was sought in the interest of the beneficiaries and to sell the
shares and proceeds invested in Government bonds and or securities. A reading
of the entire plaint and the prayer made thereunder
and the proposed amendment would go to show that there was no question of any
inconsistency with the case originally made out in the plaint. The Court always
gives leave to amend the pleadings of a party unless it is satisfied that the
party applying was acting malafide. There are a
plethora of precedents pertaining to the grant or refusal of permission for
amendment of pleadings.
various decisions rendered by this Court and the proposition laid down therein
are widely known. This Court has consistently held that the amendment to
pleading should be liberally allowed since procedural obstacles ought not to
impede the dispensation of justice. The amendments sought for by the appellants
has become necessary in view of the facts that the appellants being the
beneficiaries of the Trust are not deriving any benefit from the creation of
the Trust since 1991-92 and that if the shares are sold and then invested in
Government bonds/securities the investment would yield a minimum return of
10-12%. It was alleged by the appellants that respondent No.1 is opposing the
sale in view of the fact that if the said shares are sold after the suit is
decreed in favour of the appellants, he will be the
loser and, therefore, it is solely on account of the attitude on the part of
respondent No.1 that the appellants have constrained to seek relief against the
same. We shall now consider the argument of the learned senior counsel for the
respondent on Sections 60 and 61 of the Trusts Act. It was submitted by the
appellants that since respondent No.1 did not act in a bonafide
manner as a result of which the appellants were compelled to file the suit
before the High Court in the capacity of the beneficiaries of the Trust and
that the amended plaint is not alien and extraneous to the ambit and purview of
Sections 60 and 61 of the Trusts Act.
shall now consider the judgments cited by learned senior counsel for the
Trading Co. vs. Moji Ram (1978) 2 SCC 91 This Court held that the main rules of
pleadings in Order 6, CPC, 1908, show that provision for the amendment of
pleadings subject to such terms as to costs and giving to all parties concerned
necessary opportunities to meet exact situations resulting from any amendment,
are intended for promoting the ends of justice and not for defeating them. This
Court further held that the amendment only sought to give notice to the
defendant on facts which the plaintiff would and could have tried to prove in
any case. Such notice was given only by way of abundant caution so that no
technical objection can be taken that what was sought to be proved was outside
Ram Manohar Lal vs.
National Building Material Supply, Gurgaon, 1969 (1)
SCC 869 It was held that a party cannot be refused just relief merely because
of some mistake, negligence, inadvertence or even infraction of the rules of
court always gives leave to amend the pleading of a party, unless it is
satisfied that the party applying was acting malafide, or that by his
blunder he had caused injury to his opponent which may not be compensated for
by an order of costs. However negligent or careless may have been the first
omission and however late the proposed amendment, the amendment may be allowed
if it can be made without injustice to the other side.
D. John vs. S. Rayappan and Others (2001) 2 SCC 472 Sethi, J. speaking for the Bench has observed that the
amendment sought would change the nature of the suit originally filed was not a
reason for refusing application for amendment and that the dominant purpose of
Order VI Rule 17 was to minimise litigation and that
the plea that the relief sought for by way of amendment was barred by time is
arguable in the circumstances of the case. This Court further observed in para 5 as under:
"After referring to the judgments in Charan Das v. Amir Khan, AIR 1921 PC 50,
L.J. Leach & Co. Ltd v. Jardine Skinner &
Co., AIR 1957 SC 357, Ganga Bai
v. Vijay Kumar, (1974) 2 SCC 393, Ganesh Trading Co.
v. Moji Ram, (1978) 2 SCC 91 and various other authorities, this court in B.K. Narayana Pillai v. Parameshwaran Pilla, (2000) 1 SCC
712 held: (SCC p.715, para 3) "3. The purpose
and object of Order 6 Rule 17 CPC is to allow either party to alter or amend
his pleadings in such manner and on such terms as may be just. 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 by
various High Courts and this court. It is true that the amendment cannot be
claimed as a matter of right and under all circumstances. But it is equally
true that courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the
general rule particularly in cases where the other side can be compensated with
the costs. Technicalities of law should not be permitted to hamper the courts
in the administration of justice between the parties.
are allowed in the pleadings to avoid uncalled- for multiplicity of
litigation." We shall now consider the judgment relied on by Mr. Ganesh, learned senior counsel for the respondent.
vs. K.N. Modi and Others, (1998) 3 SCC 573 This civil
appeal was filed by K.K. Modi against K.N. Modi and Others and this judgment was relied on by Mr. Ganesh to show that the parties are litigating before
different forums and that the directions issued by this Court pending final
disposal of the suit in the Delhi High Court.
Sir John Beaumont and Sir Lionel Leach, AIR (37) 1950 PC 68, The Privy Council,
in the above case, has observed as under:- "The powers
of amendment must be exercised in accordance with legal principles. An amendment
which involves the setting up of a new case and alters the real matter in
controversy between the parties cannot be allowed."
and Others vs. D.R. Nanjappa Gounder
(dead) and Others, AIR 1978 Madras 285 FB.
the above case was cited in regard to the permissibility of amendment by
introducing a new cause of action. This Full Bench decision of the Madras High
Court was cited for the proposition that when the amendment sought for sets up
a totally different cause of action which ex facie cannot stand on a line with
the original pleading, Courts cannot allow such application for amendment and
that a pleading could only be amended if it is to substantiate, elucidate and
expand the pre-existing facts already contained in the original pleadings; but
under the guise of an amendment a new cause and a case cannot be substituted
and the courts cannot be asked to adjudicate the alternative case instead of
judgment is distinguishable on facts. The cause of action for filing the
present suit arose on 21.10.1993 when the defendant No.1 informed that the
account has been opened by him in the Oriental Bank of Commerce and that the
cause of action further arose on several dates when the reminders were sent to
defendant No.1 for handing over the bonus share certificates and the dividends
to the Trust. It was alleged in the plaint that defendant No.1 has no authority
in holding the monies of the Trust and that the dividends of the shares have
not been accounted for. A further prayer by way of permanent injunction was
sought against defendant No.1 and his servant's agent and assignees from
operating the bank account in the Oriental Bank of Commerce, New Delhi and for
a mandatory injunction restraining the defendant for depositing the
dividends/bonus shares received in future from GPI in the account opened by him
with the defendant No.6 Bank at Delhi. A further decree for mandatory
injunction was also sought in favour of the
appellants/plaintiffs to direct defendant No.1 to handover the relevant bonus
shares and the dividends or any other amount of GPI to the Secretary of the
Trust defendant No.5.
application for amendment in paras 6,7, & 8 it was submitted as follows:-
The plaintiffs and/or their family
members, being the beneficiaries of the said Trust are not deriving any benefit
from the creation of the said Trust since 1991- 92. During the period in or
around 1979-80, the Trust purchased 19314 equity shares of Godfrey Philips Ltd.
(hereinafter referred as to GPI) and the defendant no. 1 took over the
management and control of Godfrey Philips Ltd. in the year 1980 or so. The
Trust as of date owns 77256 shares of GPI. But 57942 of the shares are in the
exclusive power and possession of defendant no.1. Only 19314 shares of GPI are
in the possession of Defendant no. 5 being the Secretary of the Trust.
It is stated that GPI declared a
dividend of Rs. 7/- per share in the year 1996- 97
when the market price was rising from Rs. 250-300/-
per share which means a mere 2.5% return on the investment per annum. If the
said GPI shares were to be sold and then invested in Government
Bonds/Securities the investments would yield a minimum return of 10% to 12% per
It is pertinent to mention that
since 1991-92, even the dividends declared on GPI
shares are being solely appropriated by the defendant no. 1 to the exclusion of
the beneficiaries. Since defendant no.1 who is holding
the said shares of the Trust is deriving benefit by holding the shares, the
beneficiaries of the Trust are being deprived from the benefit which they are
entitled to. It is in the interest of justice that the said shares may be sold
and then invested in Government Bonds and/or Securities which will be in the
interest of beneficiaries, because at present the beneficiaries are not
deriving any benefit by virtue of the said shares which are in power and
possession of defendant no. 1 as is evident from the records of the case.
thus seen that the entire case of the plaintiff revolves around the equity
shares of GPI and that the dividend declared thereon are not accounted for.
Therefore, a further prayer by way of amendment was sought to amend the plaint
and to incorporate clause 12a after the existing para
12 and also to incorporate the relief of mandatory injunction as per prayer b-1
directing the defendants to sell shares of GPI held by the Trust and use the
sale proceeds thereof for the benefit of the beneficiaries.
it is clearly seen from the above narration of facts that the amendment sought
for does not introduce a new cause of action inconsistent with the case made
out in the original plaint. It is pertinent to notice the following facts also:-
Application under Order VI Rule 17 was filed on the same date, the appellant
filed the amended plaint.
Respondent No.1 filed reply to the application under Order VI Rule 17
22.01.1999 Appellants filed their rejoinder to the reply of respondent No.1
31.08.1999 Learned Single Judge allowed the application 25.10.1999 Respondent
No.1 filed First Appeal before the Division Bench in FAO (OS) No. 35/2000
31.01.2000 Respondent No.2 filed his written statement.
Respondent No.1 filed his amended written statement to the amended plaint.
(underlining is ours) 15.09.2000 Appellants filed their application to the
amended written statement of respondent No.1 10.01.2001 Admission/denial of
documents was conducted by the parties and the documents were executed
20.08.2001 Learned Single Judge framed the following issues on the pleadings of
Whether the Suit is not maintainable
in its present form, having been filed by only three employees of the Modipon Fibre Division
Whether the suit has been filed by
the plaintiffs at the instance of M.K. Modi Group in
orders to harass defendants no. 1 and in a bid to dislodge and destabilize,
defendant no. 1's control and management of GPI? "O.P.D".
Whether the defendant no.1 has acted
bonafidely to protect the assets, properties and
income of the trust and interests of the beneficiaries of the trust?
Whether the defendant no. 1 has
misused the assets of the trust? "O.P.D".
<![endif]>Whether the plaintiffs are entitled
to the relief claimed in the plaint in view of terms of clause 19 of the Trust?
27.08.2001 Appellate Court allowed the appeal filed by respondent No.1 and
dismissed the application of the appellant for amendment of the plaint.
SLP filed 18.01.2002 Notice was issued in the SLP - Further proceedings in the
suit was stayed until further orders.
Interim order dated 18.01.2002 shall continue to remain in operation during the
pendency of the appeal.
the above noted dates, it is clearly seen that the respondents have filed their
amended written statement and the appellants their replication to the amended
written statement and conducted admission and denial of documents and more so
the issues were framed and despite the said fact, the High Court has allowed
the appeal of the respondents and dis-allowed the
application of the petitioner for amendment of the plaint.
the Court has entered into a discussion into the correctness or falsity of the
case in the amendment, we have no other option but to interfere with the order
passed by the High Court. Since it is settled law that the merits of the
amendment sought to be incorporated by way of amendment are not to be adjudged
at the stage of allowing prayer for amendment, the order passed by the High Court
is not sustainable in law as observed by this Court in Sampath
Kumar vs. Ayyakannu and Another, (2002) 7 SCC 559. We
make it clear that we are not expressing any opinion on merits of the rival
claims. Now that the amended plaint written statement and the issues have been
framed it is for both parties to contest the suit on merits on the basis of the
amended plaint written statement and the issues now framed.
result, the Civil Appeal Nos. 5350-5351 are allowed and the order passed by the
Division Bench of the High Court in FAO (OS) No. 35/2000 and CM No.3 dated
27.08.2001 stands set aside. However, there will be no order as to costs.
suit was filed in the year 1997. Now that the pleadings are complete and the
suit is ready for trial, we request the High Court to dispose of the suit as
expeditiously as possible and at any rate not later than 6 months from the date
of receipt of the copy of the order from this Court or on production of the
same by either party whichever is earlier.