NAVIN CHAWLA, J.

1. This application has been filed by the plaintiff under Order VI Rule 17 read with Order I Rule 10(4) of the Code of Civil Procedure, 1908 (in short, ‘CPC’), praying for permission to amend the plaint.

Background.

2. The above suit has been filed by the plaintiff claiming therein that the plaintiff had entered into an Agreement to Sell and Purchase dated 27.11.2011 with the defendant nos.1 to 3 through defendant nos.4 to 6 for purchase of the Third Floor with roof rights in the newly constructed residential complex along with proportionate right in the land underneath and usage of common areas including the two fixed parking slots and unfettered usage of lift at plot No. 11, Road No. 8, Adarsh Bhawan Co-operative House Building Society Limited, Punjabi Bagh (West), New Delhi- 110026, admeasuring 202.76 square yards (hereinafter referred to as the ‘suit property’) for a total sale consideration of Rs.3,12,30,000/-. The Suit Property was to be completed by the defendants by December, 2012.

3. The plaintiff, however, also asserts that there were errors/omissions and the documents never truly represented all the terms of the agreement between the parties. The plaintiff asserts that the Agreement was reduced in writing on the stamp paper of 27.02.2012.

4. It was asserted that the original defendants to the suit, that is, the defendant nos.1 to 6, were jointly represented by the defendant nos.4 and 6, claiming themselves to have due authorization of defendant nos.1 to 3 for the said transaction. The plaintiff asserts that there was a consortium of defendant nos. 4 to 6, who acted as the financers/developers of the proposed project to be constructed at the above plot of land.

5. The plaintiff had asserted that based on the negotiation, the plaintiff had paid some amount in the name of defendant nos. 4 and 6 by cheques, which was accounted for in the initial total payment of Rs.54 lacs. The plaintiff asserted that he had made a further payment of Rs.28,30,000/-, which was acknowledged by one of the directors of defendant no.3, Mr.Arvind Kalra vide receipt dated 27.11.2011, which was signed by the defendant no.1 and Mr.Arvind Kalra for defendant no.3.

6. The plaintiff asserts that there were complete work suspensions of construction from 2013 till October, 2016 due to some inter se disputes between the defendant nos.1 to 3. In the meantime, there was a downward recession in the real estate market and the prices reduced by 40%.

7. As the defendants were forcing the plaintiff to pay the balance amount though the construction had been delayed, the plaintiff lodged a police complaint, on which no action was taken by the police stating that it is a civil dispute. The plaintiff also got issued a legal notice dated 22.08.2016 thereby demanding double the amount of payment already made as also compensation of Rs. 15 lakhs, with interest.

8. After some negotiations, the total consideration was reduced to Rs.2,10,00,000/- and the defendants executed a receipt dated 09.10.2016 for the same. However, on 13.10.2016, the defendants gave a reply to the legal notice of the plaintiff and claimed for forfeiture of the earnest money of Rs.54 lacs paid by the plaintiff. They later assured the plaintiff that their reply to the legal notice will be withdrawn and suit property will be delivered to the plaintiff by the end of March, 2017. The defendant nos. 4 and 6 together took away the original copy of the agreement on 11.10.2016 in presence of Shri Vimal Chitkara and Shri Neeraj Garg.

9. The plaintiff asserts that he came to know in the third week of July, 2017 that one Mr.Pawan Aggarwal was negotiating with the defendants for the suit property.

10. The plaintiff asserted the cause of action for filing of the suit as under:

“24. That the cause of action has arisen to file the present suit when the defendants suddenly by notice dated 13.10.2016 claimed the forfeiture of the Earnest Money for first time despite keeping Rs.28,30,000/- with them all throughout that too without reference to agreement cum receipt dated 09.10.2016; The cause of action arose also when for first time the plaintiff realized that the defendants have no intention to perform their part of the series of Agreement i.e. oral Agreement to Sell dated 27.11.2011 which was formalized on the Stamp Paper of 27.02.2012, and thereafter the oral understanding in September, 2016, which was reduced in writing on 09.10.2016 whereby the price of property was reduced from Rs.3,12,30,000/- to Rs.2,10,00,000/- which was otherwise as per understanding reached and as per market value of the suit property mutually assessed; the cause of action further arose when the defendants have back tracked on the ground that this would cause cascading effect on them as they have to reduce the pricing with the buyers of the other floors as well; The cause of action arose on 11/12th October, 2016, when the defendant No. 4 & 6 having taken the original of the receipt dated 09.10.2016 and refused to deliver back despite concluded similar bargain with buyers of other floors; The cause of action arose when the structure stood completed in April, 2017 and the defendants instead offering started negotiating with third persons ostensibly taking undue advantage of good faith created by the Defendant No. 4 and 6 to keep the Plaintiff entangled in talks of returning original of agreement dated 09.10.2016, despite the plaintiff ready and willing throughout to offer the due or remaining amounts of agreement to sell as partially modified on 09.10.2016; The cause of action is still continuing.”

11. On 07.09.2017, the suit was listed before this Court.

12. On returnable of the summons in the suit, that is, 17.11.2017, the learned counsels for the defendants informed the Court that the suit property had been sold on 12.07.2017 to the later impleaded defendant nos.7 and 8 in the suit. At the oral request of the learned counsel for the plaintiff, the defendant nos.7 and 8 were therefore impleaded in the suit, and were directed to maintain status quo regarding the title of the property.

13. The pleadings in the suit were completed with the defendants having filed their written statements, while the plaintiff filed replications to the written statements filed by the defendant nos.1 to 3 and defendant nos.4 to 6.

14. In the order dated 11.02.2020, passed by the learned Joint Registrar (Judicial), it was recorded that the plaintiff does not wish to file the replication to the written statements of the defendant nos.7 and 8.

15. The plaintiff then filed the present application on 19.09.2020, seeking amendment in the plaint.

Amendments prayed for:

16. The plaintiff asserts that due to inadvertence, the date of the receipt has been wrongly mentioned in the plaint as 09.10.2016 instead of 08.10.2016.

17. The learned counsel for the plaintiff submits that the copy of this receipt has been duly placed on record and the payment date is 08.10.2016 and, therefore, clearly there was a typographical error in the plaint which the plaintiff now seeks to correct by way of present application.

18. The plaintiff further asserts that it was only after the filing of the suit that the plaintiff learnt about the Sale Deed regarding the suit property having been executed in favour of the defendant nos.7 and 8. The plaintiff by way of the present amendment now seeks to challenge the said Sale Deed.

19. The plaintiff further asserts that it is during the preparation of the present application, and from the documents produced by the plaintiff to his counsel, that it also became evident that the Agreement dated 27.11.2011 was in writing, and alongwith the said Agreement, receipt dated 27.11.2011, though signed on 28.11.2011, was also executed. The photocopy of the said Agreement was available with the plaintiff. The original receipt dated 08.10.2016 was also available with the plaintiff and what was taken away by the defendant nos.4 to 6 was the coloured copy of the same. The plaintiff now wishes to assert that Agreement to Sell dated 27.11.2011 was executed between the parties, the payment of Rs.54 lacs was made to the defendant nos.4 to 6, however, the defendant no.6 took a cheque bearing no.304289, drawn on Standard Chartered Bank for the amount of Rs.5,40,000/- in the name of defendant no.1, which was duly honoured on 14.12.2011. The plaintiff further wishes to add that he had given a cheque bearing no.091448 drawn on HDFC Bank for a sum of Rs.5,40,000/- to the defendant no.4, however, the same remained unpaid and subsequently the said payment was made in cash to the defendant no.4. The plaintiff further wishes to add that at the time of signing of the Agreement in February, 2012, the original of the Agreement dated 27.11.2011 and the Receipt dated 27.11.2011 was taken away by the defendant nos.4 and 6. The plaintiff further wishes to add that apart from Rs.54 lacs, the plaintiff had paid a further sum of Rs.10 lacs to the defendants on 08.10.2016 in cash, which was also duly acknowledged in the receipt dated 08.10.2016 by the defendants. The plaintiff also seeks to add pleadings to challenge the Sale Deed executed by the defendant nos.1 to 3 in favour of the defendant nos.7 and 8, and add a prayer in that regard in the plaint. The plaintiff also wishes to add that the defendant nos.1 to 3 had no title and interest in the said plot, and at the time of entering into the Agreement with the plaintiff, they had entered into such arrangement solely with the intention to cheat the plaintiff. The plaintiff wishes to assert that the title of the suit property was acquired by the defendant nos.1 to 3 only on 06.03.2012.

Submissions of the learned counsel for the Plaintiff

20. The learned counsel for the plaintiff submits that by way of the above amendment, the plaintiff wishes to only correct the typographical error in the date of the receipt and to further clarify the dealings between the parties, without in any manner changing the cause of action or setting up a new case.

21. He submits that further amendments are being sought only due to the gaining of the knowledge of the execution of the Sale Deed by the defendant nos.1 to 3 in favour of the defendant nos.7 and 8, and the consequential challenge thereto.

22. He submits that issues in the suit are yet to be framed and therefore, the amendment ought to be allowed.

Submissions of the learned counsel for the Defendant nos. 1 and 6

23. On the other hand, the learned counsel for the defendant nos.1 and 6 submits that the plaintiff, in his plaint, had intentionally concealed from this Court that the defendant nos.1 to 3 had already sold the suit property to the defendant nos.7 and 8 prior to the filing of the present suit and, in fact, the defendant nos.7 and 8 had also been put in possession thereof.

24. He submits that the challenge to the Sale Deed executed by the defendant nos.1 to 3 in favour of the defendant nos.7 and 8 would now be barred by the limitation inasmuch as, apart from this fact being already in the knowledge of the plaintiff before filing of the present suit, in any case, was disclosed by the defendant nos.1 to 3 in their written statement and before this Court on 17.11.2017. In spite of such knowledge, the plaintiff chose not to challenge the said Sale Deed till the filing of the present application, though he had filed replication to the written statements filed by the defendant nos.1 to 3, and had chosen not to file the replication to the written statement filed by the defendant nos.7 and 8.

25. He submits that the plaintiff cannot take benefit of Order I Rule 10(4) of the CPC to seek amendment to the plaint, as the plaintiff chose not to file the replication to the written statement filed by the defendant nos.7 and 8, who had been later added to the suit.

26. He submits that apart from changing the date of the alleged receipt, the execution whereof is denied by the defendants, the plaintiff is now also seeking to add that he had paid Rs.10 lacs in cash to the defendants. He submits that this plea is contradicting the original plaint inasmuch as, not only there is no such averment in the initial plaint, but also the claim of the plaintiff in the plaint is on the basis that the plaintiff had paid only a sum of Rs.82,30,000/- to the defendants.

27. He further submits that the plaintiff is also now changing his stand when he contends that certain payments were also made in the name of the defendant no.1. He submits that the amendment therefore seeks to set up a new case and cannot be allowed.

Submissions of the learned counsels for the Defendant nos. 3, 4 & 5.

28. The learned counsels for the defendant no.3, and the learned counsel for the defendant nos.4 and 5, while adopting the above submissions of the learned counsel for the defendant nos.1 and 6, submit that by way of the present amendment, the plaintiff is seeking to set up a new case and fill-up the lacunae in his case, and the same therefore, cannot be allowed.

Submissions of the learned counsel for the Defendant nos. 7 and 8.

29. The learned counsel for the defendant nos.7 and 8, while also adopting the submissions of the learned counsel for the defendant nos.1 and 6, further submits that the said defendants have been in possession of the suit property since July, 2017, and in spite of having the knowledge of the same, the plaintiff chose not to implead them in the suit originally filed. It was only on being confronted by the same, the plaintiff finally chose to implead the defendant nos.7 and 8 on an oral request, vide the order dated 17.11.2017 of this Court. Even thereafter, the plaintiff made no attempt to serve the summons in the suit on the defendant nos.7 and 8 and took more than one year to do the same. The plaintiff has also chosen not to file the replication to the written statement filed by the defendant nos.7 and 8, and having missed this opportunity, is now trying to cover up the lacunae in his case by seeking amendment to the plaint.

30. Placing reliance on the judgment of the Supreme Court in Maharaj Singh & Ors. v. Karan Singh (Dead) thr. LRs & Ors. 2024 SCC OnLine SC 1668, he submits that, in fact, there is no necessity for the plaintiff to challenge the Sale Deed executed in favour of the defendant nos.7 and 8. He submits that, therefore, reason given by the plaintiff to seek amendment in the plaint is totally false and only an excuse to cover up the lacunae in his case.

31. He submits that there is a contradictory prayer now sought to be added in the prayer ‘(i)a.’ of the proposed amended plaint, wherein, on one hand, the plaintiff prays for defendant nos.7 and 8 to sign and execute the Sale Deed in respect to the property in his favour, while on the other hand, seeks cancellation of the Sale Deed of the suit property in favour of the defendant nos.7 and 8.

32. He submits that the plaintiff seeks cancellation of the Sale Deed in favour of the defendant nos.7 and 8 for the entire property, which includes all floors and is not confined just to the third floor, which is the subject matter of the present suit. The defendant nos.7 and 8 would therefore, suffer grave prejudice and injustice if the said amendment is allowed.

Analysis and Findings.

33. I have considered the submissions made by the learned counsels for the parties.

34. Order VI Rule 17 of the CPC reads as under:

“17. Amendment of pleadings.—The 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: Provided 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.”

35. In Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd. & Anr. (2022) 16 SCC 1, the Supreme Court while considering the above provision, has summarized the law applicable thereto, as under:

“71.1. Order 2 Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order 2 Rule 2 CPC is, thus, misconceived and hence negatived.

71.2. All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order 6 Rule 17 CPC.

71.3. The prayer for amendment is to be allowed:

71.3.1. If the amendment is required for effective and proper adjudication of the controversy between the parties.

71.3.2. To avoid multiplicity of proceedings, provided.

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment do not seek to withdraw any clear admission made by the party which confers a right on the other side, and.

(c) the amendment does not raise a timebarred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

71.4. A prayer for amendment is generally required to be allowed unless:

71.4.1. By the amendment, a time-barred claim is sought to be introduced, in which case the fact that the claim would be time-barred becomes a relevant factor for consideration.

71.4.2. The amendment changes the nature of the suit.

71.4.3. The prayer for amendment is mala fide, or.

71.4.4. By the amendment, the other side loses a valid defence.

71.5. In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

71.6. Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

71.7. Where the amendment merely sought to introduce an additional or a new approach without introducing a time-barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

71.8. Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

71.9. Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

71.10. Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

71.11. Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed.”

36. The learned Single Judge of this Court in Vijay Gupta v. Gagninder Kr.Gandhi & Ors. 2022 SCC OnLine Del 1897 has also summarized the law applicable to Order VI Rule 17 of the CPC, holding as under:

“22. A reading of Order VI Rule 17 reveals the following:

(i) The provision uses the word “may” as well as “shall”. They are, however, used in different contexts, and, therefore, no confusion arises as a consequence. The provision states that the Court may at any stage of the proceedings allow amendment of the pleadings. The use of the word “may” is, in this context, clearly permissive and empowering in nature. It indicates that the Court is empowered, at any stage of the proceedings, to allow amendment of the pleadings. Additionally, even syntactically, no other word could be used in place of “may”, as it is followed with the words “at any stage of the proceedings”. These opening words of Order VI Rule 17, therefore, indicates that amendment of pleadings may be allowed by the Court at any stage of the proceedings.

(ii) The use of the word “shall”, later in Order VI Rule 17 is, however, imperative and mandatory in nature. The clear intent of the legislature is that all amendments, which satisfy the criteria envisaged by Order VI Rule 17 shall be allowed. Rather, it casts an obligation and a duty to carry out, necessarily, all such amendments as are necessary for the purpose of determining the real questions in controversy between the parties.

(iii) In this context, the use of the word “made”, instead of “allowed” is also significant. Order VI Rule 17 does not say that “all such amendments shall be allowed”. It states that “all such amendments shall be made”. To my mind, the use of the word “made” is significant and purposeful. Amendments are allowed by the Court, but they are made by the litigant applying for the amendment. The use of the expression “shall be made”, instead of “shall be allowed”, therefore, indicates that the duty that is cast, by Order VI Rule 17, is cast on the litigant, rather than on the Court. Holistically, once, therefore, the Court, at any stage of the proceedings, allows a party to amend his pleadings, all such amendments shall be made as are necessary to determine the real questions in controversy between the parties. Having said that, judicial authorities have often read the word “made” as referring to the duty of the Court to allow such amendments.

(iv) The governing and delimiting expression, in Order VI Rule 17 is, unquestionably, “as may be necessary for the purpose of determining the real questions in controversy between the parties”. To apply this clause, the following three questions have to be posed and answered:

(a) What is the controversy between the parties

(b) What are the real questions in the said controversy

(c) Are the amendments, being sought, necessary for determining the said questions If they are, they shall be made.

(v) It is not open, therefore, for a Court to refuse to allow an amendment which is necessary for determining the real questions in controversy between the parties before it. At whatever stage the amendment is sought, it has to be allowed. (This is, of course, subject to the proviso to Order VI Rule 17, to which I shall presently advert.).

(vi) The import of the latter half of the main part of Order VI Rule 17 has, however, to be carefully understood. It states that “all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties”. This may be worded, otherwise, as “if the amendments are necessary for determining the real questions in controversy between the parties, then they shall be allowed”. It would be erroneous, however, from this proposition, to deny the antecedent. Order VI Rule 17, in other words, while setting out a circumstance in which the amendment shall be made, does not delineate the circumstances in which the prayer for amendment may be refused. From the proposition “if the amendments are necessary for determining the real questions in controversy between the parties, then they shall be allowed”, it would be fallacious, in logic, to infer that “if the amendments are not necessary for determining the real questions in controversy between the parties, then they shall not be allowed”. To reiterate, therefore, while Order VI Rule 17 requires an amendment, which is necessary for determining the real questions in controversy between the parties to necessarily be allowed, it does not, by inference, state that all other amendments may be refused.

(vii) Neither does Order VI Rule 17, therefore, delineate, exhaustively, all circumstances in which a prayer for amendment should be allowed, nor does it identify the circumstances in which a prayer for amendment should not be allowed. It merely identifies one situation in which the amendment is necessary for determining the real issues in controversy between the parties as one circumstance in which the amendment is mandatorily required to be allowed.

(viii) The circumstances in which a prayer for amendment of pleadings may justifiably be refused are not, therefore, set out in Order VI Rule 17. They have, however, been explained in judicial precedents, over a period of time, to which I would presently allude.

(ix) Delay in applying for amendment, or possibility of the proceedings getting protracted were the prayer for amendment to be allowed, are not, therefore, statutorily envisaged as grounds on which a prayer for amendment of pleadings may legitimately be denied. On the proposition that delay in applying for amendment cannot be a sole ground to reject the prayer, the judgment of the Supreme Court in Andhra Bank v. ABN Amro Bank N.V. is a clear authority.

(x) The expression “as may be necessary for the purpose of determining the real questions in controversy between the parties” is an extremely fluid expression. The contours of the said expression have been delineated, over the course of time, by various precedents of the Supreme Court. They would be dealt with, presently.

(xi) The proviso to Order VI Rule 17, however, envisages a circumstance in which the provision would not apply. A proviso is, per definition, an exception to the main provision. If the proviso applies, therefore, there is no occasion to refer to the main provision at all. It is legitimate, therefore, for the Court to examine, in the first instance, whether the proviso applies. If it does, applicability of the main part of Order VI Rule 17 stands ipso facto ruled out.

(xii) The proviso to Order VI Rule 17 prohibits, again in absolute terms (as is apparent from the use of the word “shall”), allowing of an application for amendment after commencement of the trial, unless the Court finds that, in spite of due diligence, the party could not have raised the matter prior thereto. The latter part of the proviso, which excepts its application where the Court is satisfied that, despite due diligence, the amendment being sought could not have been raised before trial commenced is, of course, a matter entirely within the subjective discretion of the Court. Chander Kanta Bansal v. Rajinder Singh Anand adopts, to understand the expression “due diligence”, the following definition from Words & Phrases, Pmt Edition, 13A, of the expression:

“Due diligence" in law means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs.”

Having relied on the above definition, the Supreme Court, in Chander Kanta Bansal, defined “due diligence” as meaning “the diligence reasonably exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation”. Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department, in like terms, defined “due diligence” as “a measure of prudence or activity expected from and ordinarily exercised by a reasonable and prudent person under the particular circumstances”. Importantly, therefore, “due diligence” connotes reasonable diligence, keeping in view the circumstances of the case. These twin considerations have, therefore, to inform the Court seized with the issue of whether a litigant, before it, had exercised “due diligence”. The elasticity of the expression is selfevident. If trial has commenced, the Court would then have to examine, on facts, whether the party was unable to raise the matter before trial commenced, despite due diligence.

(xiii) In this context, the word “allowed”, as used in the proviso to Order VI Rule 17, may call for a nuanced interpretation where, for example, the application is filed before trial commences, but is taken up by the Court after trial has commenced. One way of avoiding such an unwholesome situation would, of course, be that, if a party informs the Court that an application for amendment has been moved, the Court should take up the application first, instead of proceeding with trial, so that the application is not hit by the proviso. If, however, despite moving an application for amendment, the applicant does not disclose this fact to the Court, and permits trial to commence, it would be inequitable to allow the applicant to later claim amnesty from the application of the proviso to him on the ground that, prior to commencement of trial, he had moved the application. Though the present case does not involve any such fact situation, in my opinion, if, prior to commencement of trial, an application seeking amendment is moved, it would be for the applicant to ensure that the application is listed and taken up before trial commences. Once trial commences, the proscription engrafted in the proviso to Order VI Rule 17 applies, inexorably and absolutely.

xxx xxx xxx

35. On a reading of the judgments rendered by the Supreme Court on the scope of ambit of Order VI Rule 17, the following propositions emerged:

(i) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17.

(ii) The prayer for amendment is to be allowed (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and.

(ii) to avoid multiplicity of proceedings, provided.

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and.

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

(iii) A prayer for amendment is generally required to be allowed unless.

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence.

(iv) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

(v) The proscription against allowing an application for amendment, where the amendment results in setting up a time barred claim, is not absolute. In Pirgonda Hongonda Patil v. Kalgonda Shingonda Patil and Muni Lal v. Oriental Fire & General Insurance Co. Ltd., it was held that, as the proposed amendment set up a case which, since institution of the suit, had become time barred, it would cause prejudice to rights which vested in the other side, the amendment should not be allowed. At the same time, in L.J. Leach & Co. Ltd. v. Jardine Skinner & Co., the Supreme Court held that the fact that the claim which was sought to be introduced by the amendment was time barred was not an absolute bar and that a time barred claim could also be sought to be introduced by amendment if the court felt it necessary to do so, ex debito justitiae.

(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment was required to be allowed.

(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

(x) An amendment which results in substitution of one distinct cause of action for another, or in changing the subject matter of the suit, cannot be allowed; else, it can. Certain illustrative examples may be noted thus:

(a) Where the original prayer in a plaint was against demolition, and demolition actually took place during the pendency of the suit, an application seeking amendment of the prayer to claim damages was required to be allowed, as held in Ragu Tilak D. John v. S. Rayappan.

(b) In a suit for allotment of properties, an amendment of the schedule of properties in the suit was sought on the ground that some properties had been incorrectly described and some properties had inadvertently left out. In C.M. Vareekutty v. C.M. Mathukutty, it was held that the amendment was required to be allowed.

(c) The plaintiff sought eviction of the defendant on the ground that the defendant was a licensee. In his written statement, the defendant claimed that he was not a licensee but a lessee. After trial had commenced, the defendant sought to amend the written statement (i) to incorporate an alternate plea, in case the court found him to be a licensee, that the license was irrevocable, (ii) to plead that two of the prayers in the suit were time barred and (iii) to plead that, as the defendant had executed works of a permanent nature and had incurred expenses therefore, the license could not be revoked in view of Section 60(b) of the Indian Easements Act, 1882. The Supreme Court, in B.K. Narayan Pillai, held that the amendment was required to be allowed as the plaintiff could be compensated by costs, subject to the defendant paying arrears of licence fee.

(d) A prayer for amendment in a suit seeking specific performance, by adding a necessary averment which was inadvertently left out owing to mistake of counsel, was allowed as it did not result in any fresh cause of action, in Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar.

(e) In Vijendra Kumar Goel v. Kusum Bhuwania and K. Raheja Constructions Ltd. v. Alliance Ministries, it was held that an injunction suit could not, by amendment, be allowed to be converted into a suit for specific performance where, by that time, a suit for specific performance would have become barred by time.

(xi) Applying these principles, in Jagan Nath v. Chander Bhan, it was held that once, in his written statement, the defendant had admitted the fact of tenancy, he could not, thereafter, seek to amend the written statement and withdraw the admission, as it would amount to taking an altogether new plea and divesting the opposite party of a valuable right. Introduction of a prayer for mesne profits was, to the extent permissible within limitation, allowable by amendment, as held in Haridas Girdhardas v. Varadaraja Pillai.

36. The principles governing applications seeking amendment of pleadings, moved under Order VI Rule 17 CPC, are, therefore, well settled. By judicial fiat, however, these principles have been subjected to exceptions where allowing the amendment would result in irreparable injustice to the opposite party, or where, by the amendment, the party seeking amendment withdraws or resiles from an admission or pleading made by him during the proceedings, thereby resulting in injustice to the opposite party. A time barred claim, too, ordinarily, cannot be sought to be introduced by an amendment in a plaint; this principle, however, is not absolute and, in certain circumstances, a court may permit introduction of a time barred claim by amendment ex debito justitiae. Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

37. A golden thread that runs through all these principles is that, where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed.”

37. The amendments that the plaintiff seeks by way of the present application are detailed hereinafter, and are dealt with individually.

38. As far as the first amendment is concerned, the same is only seeking to correct a typographical mistake in the plaint where it refers to the receipt dated 08.10.2016 as one dated 09.10.2016. The plaintiff, along with plaint, had filed a copy of the said receipt which shows that it is dated 08.10.2016. Genuineness of the said receipt has been disputed by the defendants. However, the said issue/plea has to be determined on receiving the evidence of the parties. The same cannot be a ground for rejecting the amendment of the plaint to correct a typographical error in the plaint.

39. The second set of amendment relates to the averment of the plaintiff that Rs.10 lacs were also paid in cash, which, according to the plaintiff, was duly acknowledged in the receipt dated 08.10.2016. The said receipt mentions about the said payment. It cannot, therefore, be said that the plaintiff is seeking to change the nature of the suit or seeking to withdraw any admission therefrom.

40. The third set of amendment relates to the averment on the Agreement dated 27.11.2011. The plaintiff asserts that the said Agreement was executed by the defendant nos.4 and 6 in favour of the plaintiff inter alia stating that they are the owners of the suit property and a sum of Rs.5,40,000/- was taken by the defendant no.6 in the name of the defendant no.1, the cheque whereof was duly honoured upon presentation. The plaintiff further wishes to add that the original of the Agreement dated 27.11.2011 and the Receipt dated 27.11.2011 was taken away by the defendant nos.4 and 6 at the time of signing of the Agreement in February, 2012. These averments also do not change the nature of the suit or cannot be construed as the plaintiff withdrawing any admission made in the suit.

41. The fourth set of amendment is a challenge by the plaintiff to the Sale Deed executed by the defendant nos.1 to 3 in favour of the defendant nos.7 and 8. As the plaintiff has asserted that the fact of the execution of the said Sale Deed was not to his knowledge at the time of the filing of the present suit, the same deserves to be allowed, especially since the defendant nos.7 and 8 were added to the suit as party defendants on 17.11.2017, while the present application was filed by the plaintiff on 19.09.2020, that is within the period of limitation.

42. The Supreme Court in Maharaj Singh (supra) has held that in view of the Section 19(b) of the Specific Relief Act, 1963, there may be no necessity for the plaintiff challenging the Sale Deed in favour of the subsequent purchasers of the suit property. The question whether the plaintiff knew of the execution of the Sale Deed in favour of the defendant nos. 7 and 8 even prior to the filing of the present suit, cannot be determined by this Court at this stage where the plaintiff is only seeking to amend his plaint and to make such a challenge out of an abundant caution. The question of limitation would have to be determined once the amendment is allowed and the parties make their respective pleadings and lead their evidence on this aspect. Presently, it cannot be a ground to reject the amendment prayed for by the plaintiff.

43. It is important to note here that the "trial in the suit’ is yet to commence. Therefore, in view of the judgments cited herein-above, the court has to apply a liberal view to this application. The amendments sought are necessary to bring about a complete, proper, and effective adjudication of the dispute between the parties. It does not, in any manner, change the nature of the Suit, nor is the plaintiff seeking to withdraw any admission made. No prejudice shall be caused to the defendants if the application is allowed.

Conclusion.

44. In view of the above, the present application is allowed.

45. The Amended Plaint is taken on record.

46. There shall be no orders as to costs.

CS(OS) 398/2017 & CRL.M.A. 20691/2017, I.A. 9889/2017, I.A. 14964/2017.

47. The defendants may file their written statements to the Amended Plaint within a period of four weeks from today. The plaintiff may file the replication(s) thereto within a period of two weeks thereafter.

48. List before the learned Joint Registrar (Judicial) on 7 th November, 2024 for completion of the pleadings and further proceedings.