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2006 Supreme(Raj) 798
Supreme Court
Honble H.K. SEMA, J. Honble DR. AR. LAKSHMANAN, J.
Rajesh Kumar Aggarwal & Ors. - Appellant
Versus
K.K. Modi & Ors. - Respondents
Civil Appeal No. 5350-5351 of 2002
Decided On : March 22, 2006
Mukul Rohtagi, Sr. Advocate, B.L. Wali, Ms. Inklee Barooah and Ms. Bina Gupta, Advocates, with him, for Appellants S. Ganesh, Sr. Advocate, Praveen Bahadur, Ms. Meghalee Barthakur, Rajan Narain, Ms. Kanika Gomber, Ms. Bharti Badesra, Ms. Rupa Barmola and
Headnote:(a) C.P.C., Order 6 Rule 17 – Amendment of pleadings – Object of Rule is that Courts should try the merits of the case – Real controversy test – Change in the nature of relief claimed – Held – It is the primary duty of the Court to decide whether such amendment is necessary to decide the real dispute between the parties, if it is, the amendment will be allowed – Provisions are partly mandatory and partly directory. (Paras 16, 17 & 19)(b) C.P.C., Order 6 Rule 17 – Amendments of pleadings – Merits of proposed amendment not to be gone into at stage of allowing amendments – Held – Amendments are not to be adjudged at the stage of allowing prayer for amendment. (Para 29)
Key Points: - Point 1 (!) (!) - Point 2 (!) (!) (!) - Point 3 (!) (!)
What is the scope of Amendment of Pleadings under Order VI Rule 17 CPC in determining the real controversy?
What is the appropriate test to decide whether an amendment should be allowed without considering merits at the amendment stage?
What are the consequences of misapprehending the real controversy or entering into merits while deciding on amendments?
(2). The short facts of the case are as follows:
By a Deed of Trust dated 1.5.1979, 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.
(3). The 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. According 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:-
(a) a 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:
(b) a decree directing that defendant No.1 is removed from such office by the orders of this Court;
(c) a decree of permanent injunction restraining defendant No.1 and/or his servants, agents and assigness from operating the saving account No. 9089 opened in Oriental Bank of Commerce, New Friends Colony, New Delhi.
(d) a decree by way of mandatory injunction restraining defendant No. 1 from depositing the divided/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:
(e) a 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;
(f) pass such other order or further order/orders as this Court may deem fit and proper in the facts and circumstances of the case.
Relief Valuation for The purposes of Jurisdiction Court fee Court fee paid
For the Relief of Mandatory Injunction (as per prayer b-1) herein Rs. 130.00 Rs. 130.0 Rs. 13.00
(4). Written statements was filed on behalf of respondent Nos. 1 & 5 before the High Court.
(5). On 23.9.1998, 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 1991-92 and as such the object of the Trust has bee
