B.N. Chaturvedi, J.

1. On an application under Order VI Rule 17, CPC (IA.930/2000) made by respondent No. 1-plaintiff seeking to amend the plaint in certain respects, an order dated 10.4.2002 came to be passed by the learned Single Judge allowing the application. Material part of this order reads as under :

The amendments sought for have become necessary in view of the recent final notice issued by the Delhi Development Authority alleging misuser of the property by the occupants of the said property. In my considered opinion, the amendment sought for is also necessary for effective determination of the lis between the parties. I am also satisfied on the facts and circumstances of the case that the amendment, even if allowed, would not in any manner change the nature and character of the suit.

In that view of the matter, the application is allowed. The amendment sought by the plaintiff shall be incorporated in the plaint.

2. Appellant-defendant No. 3 felt aggrieved by the said order and, consequently, seeks to assail the same by way of present appeal.

3. Does the exercise of discretion by the learned Single Judge in allowing the amendment sought to be incorporated in the plaint, calls for an interference This is the short question posed for consideration, in this appeal. To facilitate better comprehension of the issue, material factual background leading to present impasse needs to be noticed first.

4. The respondent No. 1-plaintiff is the owner of a four-storeyed building constructed on a commercial plot of land held on perpetual lease from the Delhi Development Authority vide lease deed dated 30.5.1973. The property is situated at 36, Community Centre, Vasant Vihar, New Delhi. The entire construction on the said land was raised by respondent No. 2-defendant No. 1, in pursuance of an agreement dated 22.5.1981 between the respondent No. 1-plaintiff and her father late Col. U.B. Mallya on one hand, and the respondent No. 2-defendant No. 1 on the other. The building became ready for occupation by December, 1982. On completion, first, second and third floors were claimed by respondent No. 1-plaintiff leaving the basement, ground and mezzanine floors to be occupied by the respondent No. 2-defendant No. 1. Under the agreement dated 22.5.1981, the respondent No. 2-defendant No. 1 was required to discharge certain obligations, as specified therein, before the ownership of the said floors under her occupation could be transferred by the respondent No. 1-plaintiff in her favour by way of a registered sale deed. In the meanwhile, in July, 1983, the respondent No. 2-defendant No. 1 let out basement and ground floor to respondent No. 3-defendant No. 2 and mezzanine floor to the appellant-defendant No. 3, respectively.

5. Respondent No. 2-defendant No. 1 allegedly failed to discharge her obligation in terms of the agreement in spite of being called upon to do so, and consequently, the respondent No. 1-plaintiff by a letter dated 22.3.1988, sent through her Advocate, rescinded the agreement with effect from the date of the letter. Respondent No. 1-plaintiff thereupon required the appellant as well as respondents 2 & 3 to vacate and hand over the possession of the basement, ground and mezzanine floors to her. The appellant and respondents 2 & 3, however, did not respond. While the appellant and respondent No. 3 continue to occupy the respective floors let out to them, the respondent No. 2-defendant No. 1 continues to collect the rent from them.

6. By virtue of terms and conditions of the agreement dated 22.5.1981, appellant was under an obligation to abide by the terms and conditions of the perpetual lease deed in regard to user of the property and that way the property could be put to commercial use only. The respondent No. 2-defendant No. 1 is, however, alleged to have let out the aforesaid floors of the property to the appellant and respondent No. 3 for non-commercial and non-conforming use by them, thereby violating the terms and conditions of the perpetual lease deed and also the master plan and the provisions of the Delhi Municipal Corporation Act. As a result, the respondent No. 1-plaintiff was served with notices by the Delhi Development Authority requiring her to stop the misuser/or else face determination of lease and re-entry into the property by the Delhi Development Authority.

7. The respondent No. 1-plaintiff on 22nd of April, 1989 filed a suit seeking a decree of declaration, (a) that the agreement dated 22.5.1981 stands duly revoked and that the appellant has no right or interest left under the agreement, and (b) that the defendants 1,2 & 3 have no right or interest to remain in occupation of the suit property and so on.

8. Further, a decree of mandatory injunction is sought directing the appellant and respondents 2 & 3 to surrender possession of the floors in question to the respondent No. 1-plaintiff. A decree of permanent injunction is also prayed for against the respondent No. 2-defendant No. 1 restraining her from dealing with the property in question in any manner or creating any third-party interest therein and from collecting any rent/profits/fees etc. in respect thereof.

9. This apart, a decree for recovery of a specified amount on account of mesne profits and appointment of a Receiver, as interim measure, to take over possession of the suit property and certain other reliefs, which need not be detailed here, have also been sought.

10. In regard to non-conforming user of the suit property in contravention of the terms and conditions of the perpetual lease deed, the master plan and provisions of the Delhi Municipal Corporation Act, averments have been made in the original plaint and also there is a mention of show-cause notices from the Delhi Development Authority threatening termination of lease and resumption of possession of the suit property for continued misuser. However, no relief restraining the appellant and respondents 2 & 3 permanently from continuing with misuser was sought in the plaint in spite of the fact that the appellant and respondents 2 & 3 had allegedly failed to pay any heed to the request of respondent No. 1-plaintiff to discontinue the misuser. Along with the suit, an application under Order XXXIX Rules 1 & 2 CPC (IA.3949/89), inter alia, alleging non-conforming user of the property by the appellant and respondents 2 & 3, was made by the respondent No. 1-plaintiff, but therein also no ad interim injunction seeking to restrain them from continuing with misuser was prayed for. Later, another application under Order XXXIX Rules 1 & 2, CPC (IA.517/90) was filed seeking an ad interim restraint order against the appellant and respondents 2 & 3 from using the suit property for industrial, non-commercial or non-conforming purposes. One finds specific mention of two show-cause notices, Annexures A & B, to the respondent No. 1-plaintiff from Delhi Development Authority requiring her to take immediate steps to stop misuser within the time specified therein and also asking her to show cause as to why the lease be not determined. On perusal of record, however, only one show-cause notice dated 15.2.1989 is found to be annexed to the application. A perusal of order dated 16.8.1996 disposing of the application reveals that earlier two show-cause notices dated 27.5.1987 and 15.2.1989 had been served on the respondent No. 1-plaintiff. Since both these notices had been received by the respondent No. 1-plaintiff prior to the institution of the suit, no fresh cause of action justifying making of second IA. 517/90, after initial one (IA 3949/89), was held to have accrued and further it was noticed that the temporary injunction being sought was beyond the scope of the suit with no relief of that nature having been sought in the plaint. Learned Counsel appearing for the respondent No. 1-plaintiff had in view of such observations, sought to look into the said aspects and, if need be, to come up with a fresh application in that regard.

11. On 18th of September, 1997, the learned Counsel for the respondent No. 1-plaintiff made a statement before the Court that the respondent No. 1-plaintiff did not wish to make any application for amendment of the plaint.

12. On 30th of January, 2001, however, an application under Order VI Rule 17, CPC (IA 930/01) was filed on behalf of the respondent No. 1-plaintiff seeking to amend the plaint by making specific references to the notices dated 27.5.1987 and 15.2.1989 from the Delhi Development Authority calling upon her to show cause as to why action for determination of lease for misuser of the property be not taken. In the original plaint, there is no specific reference to these notices. The plaintiff further seeks to make mention of a third show-cause notice dated 11.9.2000 allegedly received by her on 21st of September, 2000, during the pendency of the suit, terming the same as a final notice giving 15 days time to her to undo the breaches, failing which action to determine the lease would be initiated without further notice to her. This apart, the factum of non-conforming user of the suit property by the appellant and respondents 2 & 3 which already finds mention in the original plaint, is sought to be elaborated by the proposed amendment. Besides certain consequential amendments which are incidental to the aforesaid proposed amendment, the plaintiff craves leave to incorporate an additional prayer to the following effect:

(H)That the defendants 1, 2 & 3 jointly and/or severally, directly or indirectly, through their servants, agents, representatives be restrained by a prohibitory, mandatory injunction of this Honble Court from, in any manner, using the basement, ground floor and the mezzanine floor of the building situated at 36, Community Centre, Vasant Vihar, New Delhi for industrial, non-commercial use or non-conforming use in violation of the perpetual lease deed dated 30.5.1973 and of the master plan and the provisions of the Delhi Municipal Corporation Act and the Delhi Building Bye-laws.

13. A number of preliminary objections were raised on behalf of the appellant-defendant No. 3 in opposition to the application for the aforesaid amendment. It is asserted that by way of amendments a new cause of action is sought to be introduced, which was available to the plaintiff on 23rd April, 1989 itself when the suit was instituted and that the proposed amendment is barred under Order II Rule 2, CPC. Referring to the orders dated 16.8.1996 and 18.9.1997, it is pleaded that once the learned Counsel for the plaintiff made a statement that the plaintiff did not wish to move for amendment of the plaint, she is now estopped from making the present application. It was further stated that the application being quite belated, the same is barred by laches and delay. According to the plaintiff, the proposed amendment seeks to introduce a totally new cause of action prejudicial to its interest and is, therefore, liable to be declined. The proposed amendment, it is pleaded, is a device to circumvent the law of limitation as the appellant feels that the suit on the basis of proposed amendment would be barred by limitation. The jurisdiction of this Court is also being questioned pleading that the appellant being a tenant, its tenancy is governed by the provisions of the Delhi Rent Control Act, and the protection available to it under the provisions of the Rent Control Act cannot be set to a naught by allowing the proposed amendment.

14. The impugned order was passed without specifically adverting to the preliminary objections raised by the appellant in its reply to the application for amendment. That being the situation, the matter may either be remanded after setting aside the impugned order, for reconsideration by the learned Single Judge, with reference to the aforesaid preliminary objections and to pass a fresh order or to obviate likely delay in trial, which is bound to occur, in the event of the case being remanded for reconsideration and fresh order, the impugned order may be examined at our level itself keeping in view the aforesaid preliminary objections raised by the appellant. Keeping in view the nature of the preliminary objections raised and the spirit in which the impugned order was passed, we feel that the latter course is the one which should be preferred as compared to the former, the overriding consideration being to guard against any eventuality that tends to retard the progress of a speedy trial.

15. Arguments for and against, advanced from either side, are stimulated by the pleas raised in the application and reply thereto.

16. If it was open to us, we would have dismissed the whole lot of objections in one go by characterising the same as fallacious, frivolous and mala fide being solely aimed at delaying the trial and seeking to gain in the process. One must not lose sight of the fact that the appellant is the one who stands to gain by delay in disposal of the case as it can continue to enjoy the premises claimed to form part of its tenancy by putting the same to a kind of use beneficial to it, irrespective of the terms and conditions of the lease deed between the respondent No. 1-plaintiff and the Delhi Development Authority, the master plan and the provisions of Municipal laws, subject to which suit premises could be put to use. Unfortunate aspect of our legal system is that the procedural part of it which was intended to help dispensation of justice in accordance with law, has somehow been allowed to be converted into a pasture land of vested interests and the same stands successfully hijacked to sub-serve the interests of those who seem to have little respect for rule of law. Salutary aim of procedural part of our legal system which was enacted to ensure adherence to the basic principles of natural justice with an avowed objective of achieving a just and fair deal to an adversary in a civil action, paves way for unscrupulous litigants to mould the same to their advantage and, at the same time, succeeding in cornering the blame to the judicial system as a whole as an instrument responsible for delays in disposal of cases. No wonder then in the oft repeated cry justice delayed is justice denied. Enough is enough. Now the time has come when any attempt to delay and slow the process of speedy adjudication on inter se controversies between the parties in a civil action should be effectively tackled to discourage any premium on dilatory tactics.

17. Reverting to the preliminary objections raised by the appellant against the maintainability of the application for amendment, one would come across with a peculiar plea of proposed amendment being barred under Order II Rule 2, CPC. General rule enacted under Order II Rule 2(1) CPC is that every suit must include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Order II Rule 2(2) precludes a subsequent suit on any part of claim, which had been omitted or intentionally relinquished by the plaintiff in an earlier suit based on the same cause of action. Similarly, where the plaintiff is entitled to more than one relief in respect of the same cause of action but omits, except with the leave of the Court, to sue for all such reliefs, he is debarred in view of the Order II Rule 2.(3) CPC from suing afterwards for any relief so omitted.

18. A plea of bar under Order II Rule 2, CPC is maintainable only if the defendant makes out (i) that the cause of action of the second suit is the same on which the previous suit was based; (ii) that in respect of that cause of action, the plaintiff was entitled to more than one relief; and (iii) that the plaintiff without leave obtained from the Court omitted to sue earlier for the relief for which the second suit is filed. [see Gurbux Singh v. Bhooralal, AIR 1964 SC 1810 [LQ/SC/1964/152] ]. Clearly, Order II Rule 2, CPC enacts a rule barring a second suit in the situation indicated above. Identity of cause of action in the former and subsequent suits is essential before the bar contemplated under Order II Rule 2, CPC is set to operate. Thus, where the claim or reliefs in the second suit are based on a distinct cause of action, Order II Rule 2, CPC would have no application. Order II 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 II Rule 2, CPC is, thus, misconceived and hence negatived.

19. No doubt the learned Counsel for the respondent No. 1-plaintiff made a statement to the Court on 18th of September, 1997 that the plaintiff did not wish to seek any amendment to the plaint but such a statement alone cannot suffice to disallow the amendment application, if the facts sought to be incorporated are relevant for complete and effectual adjudication on the suit subject and an additional prayer for a relief is sought to be made to avoid multiplicity of judicial proceedings. Order VI Rule 17, CPC enables the parties to a suit to amend their pleadings, if so felt necessary. It is an altogether different question if an application for amendment is ultimately to be allowed or rejected. There can be no estoppel against the statute and, therefore, the right of the respondent No. 1-plaintiff to seek amendment in her plaint cannot be taken away simply because her Counsel made a statement to the said effect. The plea of estoppel raised by the appellant, thus, fails.

20. The respondent No. 1-plaintiff vaguely referred to earlier show-cause notices from the Delhi Development Authority in the original plaint without making any specific mention in that respect. Now, during the pendency of the suit another show-cause notice dated 11.9.2000 on misuser of the suit property is alleged to have been received by her on 21st of September, 2000, which she seeks to term as final notice. This show-cause notice, as a matter of fact, in no way appears to be different from the earlier two notices which had been received by the respondent No. 1-plaintiff prior to the institution of the suit. Though in the plaint there are allegations of misuser of the suit property by the appellant and respondents 2 & 3 and the factum of receipt of show-cause notices by the respondent No. 1-plaintiff also finds mention therein, the respondent No. 1-plaintiff omitted to seek a relief of prohibitory injunction against the appellant and respondents 2 & 3 to prevent them from persisting with alleged misuser. By means of proposed amendment apart from making specific mention of the latest show-cause notice dated 11.9.2000, the respondent No. 1-plaintiff seeks to add a prayer for the relief of permanent injunction restraining the appellant and respondents 2 & 3 from misusing the suit property.

21. There is no controversy on the point that the issue of show-cause notice dated 11.9.2000 by the Delhi Development Authority is a development which occured during the pendency of the suit. Where a subsequent development is relevant for adjudication on the controversies between the parties, there is no embargo on getting the same incorporated in the pleadings by seeking an amendment thereto. A liberal approach while dealing with an application for amendment of pleadings is an oft repeated prescription by various judicial pronouncements. In a recent decision in Ragu Thilak D. John v. S. Rayappan & Others, (2001) 2 SCC 472 [LQ/SC/2001/206] , where a suit for permanent injunction restraining the defendants, their agents and subordinates from demolishing a compound wall of the suit property was filed and during the pendency of the suit the compound wall was allegedly demolished on the north, east and west sides by the defendants and the entrance gate was also damaged, and the appellant-plaintiff filed an application under Order VI Rule 17, CPC for amendment of the plaint by adding certain paras to the plaint, the trial Court rejected the application and the High Court dismissed the revision petition mainly on the ground that the amendment, if allowed, would result in introducing a new case and cause of action and that since the appellant-plaintiff was seeking recovery of damages as well, the amendment could not be allowed as it would change the nature of the suit and further that the amendment sought was barred by limitation, taking note of the law laid down in B.K. Narayana Pillai v. Parmeswaran Pillai & Another, X (1999) SLT 451=I (2000) CLT 92 (SC)=(2000) 1 SCC 712 [LQ/SC/1999/1230] : JT (1999) 10 SC 61 [LQ/SC/1999/1230] , with reference to the judgments in Charan Dass v. Amir Khan, AIR 1921 PC 50 = 1920 ILR (48) Calcutta 110; L.J. Leach & Company Limited v. Jardine Skinner & Company, AIR 1957 SC 354 [LQ/SC/1956/58] ; Smt. Ganga Bai v. Vijay Kumar & Others, (1974) 2 SCC 393 [LQ/SC/1974/144] ; M/s. Ganesh Trading Company v. Moji Ram, (1978) 2 SCC 91 [LQ/SC/1978/26] , the impugned order of the High Court was set aside and the appellant-plaintiff was permitted to amend the plaint. In B.K. Narayana (supra), it was ruled :

(3)The purpose and object of Order VI 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 the 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. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.

22. Applying the above quoted principles of law on amendment of pleadings, there appears no justification to accord sanctity to the preliminary objections raised on behalf of the appellant-defendant No. 1 against permitting the proposed amendments being incorporated in the plaint. There can be no denial of the fact that the show-cause notice dated 11.9.2000 calling upon the respondent No. 1-plaintiff to show cause as to why the lease of the suit property be not determined in the face of misuser thereof in violation of the terms and conditions of the perpetual lease deed, has been issued to her by the Delhi Development Authority during the pendency of the suit. The fact that earlier also two such show-cause notices had been issued to her before the institution of the suit and in spite of that she omitted to seek any relief against the misuser, cannot be a valid ground to decline the plea for the proposed amendment. Evidently, the Delhi Development Authority did not act upon the first two show-cause notices and now with the issuance of a third show-cause notice dated 11.9.2000, a reasonable apprehension of impending action for determination of perpetual lease of the suit property can legitimately be entertained by the respondent No. 1-plaintiff. Omission on her part to seek appropriate relief against misuser of the suit property by the appellant and respondents 2 & 3 cannot be a ground to preclude her from seeking such a relief now by amending the plaint. Misuser of premises in contravention of the terms and conditions of the perpetual lease deed, master plan and the provisions of Delhi Municipal Corporation Act gives rise to a continuing cause of action and there can, thus, be no question of limitation coming in the way. It is well open to the respondent No. 1-plaintiff to file a fresh suit seeking a decree of permanent injunction against the misuser of the suit premises by the appellant and respondents 2 & 3 on the basis of show-cause notice dated 11.9.2000 and if that be the case, no plea of limitation against the proposed amendment being granted is sustainable. In spite of respondent No. 1-plaintiff failing earlier to seek the relief against misuser, on the basis of the earlier two show-cause notices received prior to the institution of the suit, persistence with misuser would constitute a continuing cause of action. In the circumstances, action to seek the relief against misuser in the original plaint in spite of above stated two show-cause notices served on the respondent No. 1-plaintiff before institution of the suit, cannot be held to disentitle the respondent No. 1-plaintiff to seek the proposed amendment. At best, the appellant can plead that the proposed amendment cannot relate back to the date of institution of the suit and the suit in relation thereto is to be taken to have been filed on the date of the amendment for the purpose of limitation. [See Vishwambhar & Others v. Laxminarayan (dead) through LRs & Another, V (2001) SLT 324=(2001) 6 SCC 163 [LQ/SC/2001/1447] ).

23. Opposition to the amendment application apart from on the count of limitation, is also based on the plea of delay and laches.

24. In M/s. Ganesh Trading Company (supra), it was ruled :

It is only if lapse of time has barred the remedy on commonly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings.

25. In yet another decision in Estrall Rubber v. Dass Estate (P) Limited, (2001) 8 SCC 97 [LQ/SC/2001/2085] , the Supreme Court laid down that the delay on its own is not a ground for rejection of the application unless serious prejudice would be caused to the other party and accrued rights taken away as a result, the application for amendment ought to be allowed. In the instant case, omission to seek the relief of permanent injunction restraining the appellant and respondents 2 & 3 from misusing the suit property in view of the two show-cause notices, referred to above, which had been received prior to the institution of the suit, in the face of a continuing cause of action, cannot be said to have resulted in accrual of a right in favour of the appellant, which would be taken away or any serious prejudice would be caused, in the event of the application for amendment being granted. Consequently, the plea that the amendment, if allowed, would be prejudicial to the interest of the appellant, is without any substance.

26. As far as the objection pertaining to the jurisdictional aspect of this Court is concerned, that is a kind of plea which will be open to be raised by the appellant in its written statement to the amended plaint and the same is of no relevance in the context of the plea for amendment in the plaint.

27. Exercise of discretion by the learned Single Judge in allowing the proposed amendment, thus cannot be viewed as illegal, arbitrary or improper and, consequently, no interference with the impugned order is called for. There being no substance, the appeal is liable to fail and it is dismissed accordingly with costs.

28. Needless to add that any observation made herein is simply for the purpose of disposal of present appeal and the same will have no bearing on the merits of the case. It will be open to the defendants to take appropriate pleas in their defence to the amended pleadings as may be available in law.