IMPORTANT POINT
Plaintiff cannot alter course of suit by filing amendment application.

Badar Durrej Ahmed, J.—Exemption is allowed subject to all just exceptions.

FAO (OS) 424/2013

This appeal is directed against the order dated 27.08.2013 passed by a learned single Judge of this court in I.A. Nos. 22522/2012 and 2963/2013. The said applications were filed in CS(OS) No. 1042/2005 which has been filed by the appellant / plaintiff. I.A. No. 22522/2012 was an application seeking restoration of the said suit. I.A. No. 2963/2013 was an application under Order VI Rule 17 CPC seeking amendment of the plaint.

2. The said suit as originally filed by the appellant/plaintiff sought several reliefs including the relief of mandatory injunction injuncting the defendant from selling the property in question namely House No. 2 situated at Arjun Nagar, village Humayunpur, New Delhi, measuring 7683 Sq. Yards. The prayers in the plaint were as under:-

“(i). Decree of Mandatory Injunction directing the defendants to sell the property in question i.e., House bearing No. 2 area, measuring 7683 sq. yards situated at Arjun Nagar, Village Humayunpur, New Delhi, pursuant to clause No. 5 and 6 of the Memorandum of Understanding dated 18.06.2001 i.e. to sell the property in question only with the no-objection of the plaintiff and to share the profit (sale consideration – investment made by the defendant no. 1) in equal share with the plaintiff.

(ii) Decree of permanent injunction may be passed in favour of the plaintiff against the defendants or their nominee restraining them from selling, alienating, transferring, creating third party interest or other otherwise parting with the possession of the property i.e., House bearing No. 2 area, measuring 7683 sq. yards situated at Arjun Nagar, Village Humayunpur, New Delhi in violation of clause No. 5 and 6 of Memorandum of Understanding dated 18.06.2001 i.e. not to sell the property in question till no objection is obtained from the plaintiff and without paying the profit (sale consideration – investment of the defendant No. 1) in equal share to the plaintiff.

(iii) Such other or further orders may be passed in favour of the plaintiff and against the defendants as this Hon’ble Court deems fit and proper under the circumstances of the case.

(iv) Cost of the suit may also be awarded to the plaintiff.”

3. The defendant No.1 filed an application being I.A. No. 7017/2005 under Order VII Rule 11 CPC for rejection of the plaint on the ground that it failed to disclose a cause of action. During the pendency of the said application the plaintiff had filed two applications being I.A. Nos. 3040/2006 and 1703/2007 both under Order VI Rule 17 CPC for amendment of the plaint. By an order dated 26.09.2012 the learned single Judge allowed the defendant’s application (I.A. No. 7017/2005 under Order VII Rule 11 CPC) and thereby passed an order rejecting the plaint on the ground that it failed to disclose a cause of action. The court observed that on the date of the suit, no mandatory injunction could have been sought directing the defendants to sell the suit property to the plaintiff as the plaintiff had admitted in the plaint itself that the defendant No.1 had already sold the suit property. It is on that basis that the defendant Nos.2 to 4, who were the purchasers, were made co-defendants in the said suit. However, while rejecting the plaint, the learned single Judge also observed that apart from the relief of injunction, no other relief was claimed and it is for that reason that the plaint was rejected for not disclosing any cause of action.

4. Being aggrieved by that order, the appellant/plaintiff filed an appeal before being FAO(OS) No. 514/2012 which was disposed of by a Division Bench by an order dated 31.10.2012. The learned counsel for the appellant/plaintiff pointed out before the Division Bench that the suit was not just for mandatory injunction or permanent injunction but that it also had a prayer with regard to sharing of profits with regard to the (sale consideration-investment made by t