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2006 Supreme(Ori) 207
2006 (II) OLR (SC) — 561
H. K. SEMA AND DR. AR. LAKSHMANAN, JJ.
Rajesh Kumar Aggarwal and others... Appellants
Versus
K. K. Modi and others... Respondents
Civil Appeals Nos. 5350-51 of 2002
Decided on 22nd March, 2006.
Headnote:1. CIVIL PROCEDURE CODE, 1908 - Order 6, Rule 17 - Suit - Amendment of plaint - Application allowed by Single Judge of High Court - In first appeal, appellate Court allowed the appeal and dismissed the application of appellant seeking relief of amendment to the plaint - Civil Appeal - 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 - 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 - Order passed by High Court is not sustainable in law.
The object of the rule is that the Courts should try the merits of the case that come before them and should, conse¬quently, allow all amendments that may be necessary for determin¬ing the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.
Order 6 Rule 17 consists 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.
In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. It is settled by a 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. (Paras - 17 to 19 and 28)
2. PLEADING - Amendment of - It should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. (Para - 20)
JUDGMENT
DR. AR. LAKSHMANAN, J. — The above appeals were filed against the final order dated 27.8.2001 passed by the High Court of Delhi in FAO (OS) No. 35 of 2000 and CM No. 387 of 2001 whereby the High Court of Delhi allowed the appeal of the respondents.
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 Executive (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, facil¬ities for sports, cultural and other activities on sound, perma¬nent and organised basis.
3. The appellants are beneficiaries of Modipon Limited Senior Executive (Officers) Welfare Trust. The respondents (Defendants 1-4) are trustees of the Trust and Respondent 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 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 1 at Oriental Bank of Commerce in his name and not in the name of the Trust and is being operated by Respondent 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 of 1997, against the respondents claiming the following amongst other reliefs:
(a) a decree for declaration that Defendant 1 is not a fit and proper person to continue as trustee of Modipon Limited Senior Executive (Officirs) Welfare Trust;
(b) a decree directing that Defendant 1 be removed from such office by the orders of this Court;
(c) a decree of permanent injunction restraining Defendant 1 and/or his servants, agents and assignees from operating Savings Account No. 9089 opened in Oriental Bank of Commerce, New Friends Colony, New Delhi;
(d) a decree by way of mandatory injunction restraining Defend¬ant 1 from depositing the dividend/bonus shares received in future from GPI in the account opened by him with Defendant 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 1 to hand over the relevant bonus share certificates in Account No. 9089 and dividend amounting to Rs 15,64,434.00, or any other amount of OPI to the Secretary of the Trust i.e. Defendant 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.
Written statement was filed on behalf of Respondents 1 and 5 before the High Court.
4. On 23.9.1998, the appellants filed an application being IA No. 8479 of 1998 under Order 6 Rule 17 read with Section 151 CPC seeking leave of the Court to amend the plaint and to incor¬porate 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 been frustrated. The Trust as of date owns 77,256 shares of GPI, but 57,942 of the shares are in the exclusive power and possession of Defendant 1. Only 19,314 shares of GPI are in the possession o
