Amendments to pleadings are generally allowable when they do not introduce new facts, do not cause injustice, and are based on existing claims, even if the trial has commenced.

ORDER :

Pranay Verma, J.

This petition under Article 227 of the Constitution of India has been preferred by defendants No.4 to 7 / petitioners, being aggrieved by the order dated 12.09.2023 passed by the trial Court, whereby application under Order 6 Rule 17 of the CPC preferred by the plaintiffs has been allowed.

2. For the purpose of decision of this petition, the facts need not be narrated in detail. Suffice is to say that plaintiffs have instituted an action on 20.07.2020 against the defendants for declaration of their title to the suit property, declaration that defendants No.2 and 3 are not the owners of the same since the entire sale consideration of Rs.1,40,00,000/- has not been paid to them, for declaration that the sale deeds executed in favor of defendants No.2 and 3 are null and void, for declaration that the sale deeds executed by defendants No.2 and 3 in favor of defendants No.4 to 7 are null and void, for damages and permanent injunction restraining the defendants from alienating the suit property.

3. During pendency of the suit, plaintiffs filed an application under Order 6 Rule 17 of the CPC seeking leave of the Court to amend the plaint for seeking an alternate relief of refund of Rs.1,04,00,000/- out of the total sale consideration of Rs.1,40,00,000/- as per the agreement to sale dated 17.05.2017 along with interest @ 18% per annum till date of payment. The application was contested by defendants but has been allowed by the trial Court by the impugned order on the ground that only an alternate relief has been sought for by plaintiffs which can be permitted even though the trial in the suit has begun. In any case, evidence of plaintiffs has not been concluded as yet. Since plaintiffs’ original relief was within time, the alternate relief would also be deemed to be within time.

4. The aforesaid order has been challenged by defendants No.4 to 7 on the ground that since trial in the suit had already begun, the amendment as prayed for could not have been permitted by the trial Court. No reason was given by the plaintiffs for the delay in proposing the amendment. The amendment was apparently barred by time hence could not have been allowed. As on the date of filing of the application for amendment, the relief of refund of consideration had become barred by time hence it could not have been allowed. Reliance has been placed on the decision of the Apex Court in Basavaraj Vs. Indira and Others , 2024 (3) SCC 705 and of the Madras High Court in Rameeza Beevi and Others Vs. S. Mohammed Ibrahim , 2005 SCC online, Mad 580.

5. Per contra, learned counsel for the plaintiffs has submitted that no new fact was sought to be introduced by the plaintiffs and only an alternate relief on the basis of subsisting pleadings was sought for. The same could have certainly been allowed as has rightly been done. The suit was within time and since an alternate relief on the basis of the already existing averments has been sought, the same was legally permissable. The order passed by the trial Court hence does not suffer from any illegality.

6. I have heard the learned counsel for the parties and have perused the record.

7. While it is true that the trial in the case has commenced but the same is at the initial stage itself. The statement of plaintiff is still being recorded and cross-examination has not been completed. The suit has hence not advanced to such an ext