Amendment of Pleading – Belated Stage – In view of cause of action accrued during pendency of suit, application not to be declined on the ground that same was being sought at belated stage
Amendment of Pleading – Time Barred Claim – The relief which has become time barred cannot be inserted by way of amendment
Amendment of Pleading – False Statement – If the basis for seeking amendment is proved to be false, such an amendment cannot be allowed

Headnote:(A) Civil Procedure Code, 1908, O.6 R.17 – Amendment of Pleading – Cause of Action – During pendency of suit for permanent injunction by plaintiff against defendants, plaintiff sought to incorporate the finding of Company Law Board regarding fraud – In view of cause of action accrued during pendency of suit i.e. after the order of Board; application not to be declined on the ground that same was being sought at belated stage – Amendment allowed.
       (B) Civil Procedure Code, 1908, O.6 R.17 – Amendment of Pleading – Time Barred Claim – The relief which has become time barred cannot be inserted by way of amendment. (Para 11)
       (C) Civil Procedure Code, 1908, O.6 R.17 – Amendment of Pleading – Discretion of Court – Before the amendment can be allowed, the Court should satisfy itself whether such an amendment is necessary for determining real issues in controversy – If such condition is not satisfied, the amendment cannot be allowed – This is the basic test which governs the discretion of the Court in granting or refusing the amendment. (Para 10)
       The other consideration which governs the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to other side. Ordinarily, if other side is compensated with cost, then there is no injustice, but if irreparable loss is caused to the opposite side, then such amendment cannot be granted. Amendments of written statement is more liberally construed than the amendment in the plaint.
       (D) Civil Procedure Code, 1908, O.6 R.17 – Amendment of Pleading – False Statement – The amendment sought by the party should not be based on falsehood – If the basis for seeking amendment is proved to be false, such an amendment cannot be allowed – If prima facie, the statement made in the application for amendment is not proved to be correct, then such disputed pleadings cannot be allowed to be inserted in the pleadings by way of amendment. (Para 12)
       (E) Civil Procedure Code, 1908, O.6 R.17 – Amendment of Pleadings – Belated Stage – Discretion under Order 6 Rule 17 CPC is an unfettered discretion conferred upon the Courts to allow amendment in the pleadings on such terms and conditions as it appears to the Court to be just and proper – The delay in making the application for amendment cannot be a ground to refuse – The Court must do full and complete justice between the parties subject to payment of adequate cost to the party opposite, if no prejudice beyond repair is caused to the opposite party. (Para 13)

JUDGMENT

Mr. Raj Mohan Singh, J. (Oral):- While issuing notice of motion on 16.09.2016, following order was passed:-

“CM No.18341-CII of 2016

Allowed as prayed for.

CM No.18641-CII of 2016

Allowed as prayed for and Annexure P-6 is taken on record.

CR No.5948 of 2016

Contends, inter alia, that the prayer made by the petitioners (plaintiffs), seeking amendment in the plaint, has been declined for; (1) the application seeking amendment in the plaint was moved eight years after institution of the suit; (2) the persons i.e.Ashok Mahindru, his family members and employees who alleged to have fabricated the documents in question, and had played fraud were not even parties to the suit; (3) indirectly, the plaintiffs wanted to get the relief which could not be received by them from the Company Law Board.

It is contended that the reasons assigned by the Court in support of its order are perverse. For, the delay in moving the application, seeking amendment in the pleadings, by itself could never be the ground to decline the proposed amendment. Rather, he submits that if the amendment prayed for is crucial, and enables the Court to arrive at a just and fair decision in the matter then the same has to be granted, notwithstanding that the prayer for amendment was belated. Further, there was a hardly any occasion to array those persons, who purport to have fabricated the documents and played fraud as parties to the suit, for that could be possible only if the proposed amendment was granted. He submits that the Company Law Board never examined the plea of fraud, least declined the relief in this regard. Rather, it was observed that such an issue could only be determined by the Civil Court in the wake of the evidence led by the parties.

Notice of motion for 17.10.2016.

Notice re:stay.

Process dasti as well with liberty to serve the respondents through their counsel before the trial Court. In the meanwhile, proceedings before the trial Court shall remain stayed till the adjourned date of hearing.

Dasti process was issued with a liberty to the petitioners to serve the respondents through their counsel appearing in the trial Court. Proceedings before the trial Court were stayed.

2. Interim order was made in operation vide order dated 01.11.2018 passed by this Court and respondents No.1 and 3 were allowed to be served by means of substituted service under Order 5 Rule 20 CPC.

3. Material on record would show that initially a suit for permanent injunction was filed by the plaintiffs/petitioners in the year 2006-07. The written statement was filed by the defendants only on 15.01.2015. The factum of fraud in respect of affairs of the company was pleaded and highlighted before the Company Law Board. Company Law Board vide its order dated 25.10.2013 relegated the plaintiffs to the remedy of civil suit as intricate questions of law and facts were involved before the Company Law Board. At the relevant time, since the suit filed by the plaintiffs was pending, therefore, the plaintiffs/petitioners thought it appropriate to amend the suit instead of filing fresh suit in view of cause of action accrued after the order dated 25.10.2013 passed by the Company Law Board.

4. The application under Order 6 Rule 17 CPC was filed in the suit for permanent injunction already filed by the plaintiffs seeking to incorporate the factum of fraud in respect of affairs of the company as projected before the Company Law Board. The amendment was declined by the trial Court and the plaintiffs/petitioners have come in present revision petition against the said order.

5. As per record, respondents No.1 and 3 have been served by means of substituted service. Respondent No.2 has been served through its counsel appearing in the trial Court. There is no representation on behalf of the respondents despite service.

6. Faced with this situation, I proceed to hear learned counsel for the petitioners on merits.

7. In pursuance of order dated 18.12.2018, learned counsel for the petitioners

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2019 Supreme(P&H) 492

IN THE HIGH COURT OF PUNJAB AND HARYANABeforeHon’ble Mr. Justice Raj Mohan SinghCR No.5948 of 2016 (O&M)Vineet Handa & Ors.v.OZO Media Estate Ltd. & Ors.{Decided on 14/03/2019}

Cases Referred (1)

IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Raj Mohan Singh
CR No.5948 of 2016 (O&M)
Vineet Handa & Ors.
v.
OZO Media Estate Ltd. & Ors.
{Decided on 14/03/2019}