The court permits amendments to pleadings under Order VI Rule 17 of CPC when necessary for complete adjudication, emphasizing a liberal approach and avoiding hyper-technical refusals.

ORDER (Oral)

(Video-Conferencing)

IA 9051/2021 (Order VI Rule 17 CPC)

1. This is an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) seeking to amend paras 38 and 43 of the plaint in the present and to add documents, relevant to the averments contained in the amended paragraphs.

2. A reply has been filed to this application and the rejoinder has also been filed thereto.

3. I have heard Mr. Bharath, learned Counsel for the plaintiff and Mr. Lall, learned Senior Counsel for the defendant, at some length on this application.

4. Mr. Lall, learned Senior Counsel for the defendant, seriously objected to the present application on the ground that it was in the nature of an oblique attempt to introduce, into the proceedings, additional documents, in clear transgression of Order XI Rule 1(2) & 1(5) of the CPC as amended by the Commercial Courts Act, 2015. For ready reference, Order XI Rule 1(2) & 1(5) of the CPC, as amended by the Commercial Courts Act, 2015, may be reproduced thus:

"1. Disclosure and discovery of documents:-

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(2) The list of documents filed with the plaint shall specify whether the documents in the power, possession, control or custody of the plaintiff are originals, office copies or photocopies and the list shall also set out in brief, details of parties to each document, mode of execution, issuance or receipt and line of custody of each document.

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(5) The plaintiff shall not be allowed to rely on documents, which were in the plaintiff's power, possession, control or custody and not disclosed along with plaint or within the extended period set out above, save and except by leave of Court and such leave shall be granted only upon the plaintiff establishing reasonable cause for non- disclosure along with the plaint."

5. Mr. Lall submits that the documents which have been now sought to be introduced under cover of this application under Order VI Rule 17 of the CPC were within the possession of the plaintiff at the time when the suit was filed. Additionally, he submits that the facts which are now sought to be introduced by way of the amendment were also facts, which were known to the plaintiff at the time of filing of the suit. He relies, for this purpose, on an application, dated 1st July, 2021, which was served on him and has apparently been also filed with this Court but has not been registered and listed at any point of time. Mr. Lall submits that this application contained averments relating to all the facts which are sought to be introduced by the present amendment and, therefore, the documents, which are relevant to these assertions must also be treated as within the possession of the plaintiff even prior to the filing of the plaint. He submits that, in fact, the Court had heard the plaintiff for some time in this matter and that the present application is an attempt to improve the case set out in the plaint in view of the observations made by the Court during hearing.

6. Mr. Bharath, learned Counsel for the applicant/plaintiff, contests these submissions of Mr. Lall. He submits that the documents, which are being introduced along with the present application, were not in the custody of the plaintiff at the time when the suit was filed and have come into the plaintiff's possession only thereafter. He submits that, along with the suit, IA 7637/2021 had also been filed, under Order XI Rule 1(4) of the CPC, for permission to place additional documents on record. There were specific averments, in the said application, that the documents which the plaintiff desired to place on record, were not in its custody or possession at that point of time. He submits that this Court had, vide its order dated 5th July, 2021, allowed IA 7637/2021 and granted the plaintiff four weeks' time to place additional documents on record, subject to the right of the defendant to admit or deny the said documents. He submits that the documents have been filed within the said period of four weeks and