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TMI Blog2006 (3) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... ed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice - It is settled by 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. The respondents have filed their amended written statement and the appellants their replication to the amended written statement and conducted admission and denial of documents and more so the issues were framed and despite the said fact, the High Court has allowed the appeal of the respondents and dis-allowed the application of the petitioner for amendment of the plaint. Since the Court has entered into a discussion into the correctness or falsity of the case in the amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 assignees from operating the saving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vested in Government Bonds and/or Securities which will be in interest of beneficiaries, because at present the beneficiaries are not deriving any benefit by virtue of the said shares which are in power and possession of defendant no.1 as is evident from the records of the case. Similarly, the appellants sought amendment in paragraph 15 and want to incorporate relief of mandatory injunction as per prayer (b-1) to be read as under:- RELIEF VALUATION FOR COURT FEE COURT FEE THE PURPOSES OF PAID JURISDICTION For the Relief of Mandatory Injunction ₹ 130.00 ₹ 130.00 ₹ 13.00 (as per prayer b-1) herein Pass a decree of Mandatory injunction directing the defendants to sell the shares of GPI held by the Trust and use the sale proceeds thereof for the benefit of the beneficiaries." The application was filed under Order VI Rule 17 C.P.C. Respondent No.1 filed reply to the said application. The appellants filed their rejoinder to the reply of respondent No.1 to the said application. The learned single Judge of the High Court, vide his order dated 31.08.1994, allowed the application of the appellant seeking relief of amendment to the plaint. Respondent No.1 herein fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Building Material Supply, Gurgaon, 1969 (1) SCC 869 = AIR 1969 SC 1267, Ragu Thilak D. John vs. S. Rayappan and Others (2001) 2 SCC 472. Per contra, Mr. Ganesh, learned senior counsel for the respondent submitted that the judgment of the Division Bench is completely in line with the settled legal position that an application for amendment of a plaint will not be allowed if it seeks to introduce into the plaint a new and different case which is inconsistent with the case originally made out in the plaint or, if the amendment has not been moved bona fide or in good faith, but only for the purpose of achieving some collateral/objective which is not bona fide. According to Mr. Ganesh, the amendment sought to be introduced by the appellants amendment application set up a case which was altogether new and different and also directly contrary to and inconsistent with the case made out in the original plaint. In this connection, Mr. Ganesh invited our attention to several paragraphs in the pleadings filed by both the parties. It was contended that the case made out in the original plaint is one that is confined strictly and solely to respondent No.1/Defendant No.1 alone and the reliefs pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion was also drawn to the various IAs filed and argued before the High Court and the orders passed thereon. Concluding his argument Mr. Ganesh submitted that the present application for amendment is an abuse of the process of Court and this Court ought not to entertain such frivolous applications. Mr. Ganesh, in support of his contention, relied on the following judgments:- 1. K.K. Modi vs. K.N. Modi and Others, (1998) 3 SCC 573, 2. Lord Simonds, Sir John Beaumont and Sir Lionel Leach, AIR (37) 1950 PC 68, 3. Kumaraswami Gounder and Others vs. D.R. Nanjappa Gounder (dead) and Others, AIR 1978 Madras 285 FB. We have carefully gone through the relevant pleadings, annexures and the judgment rendered by the learned single Judge and of the learned Judges of the Division Bench of the High Court. Order 6 Rule 17 of CPC reads thus: "17) Amendment of Pleadings - The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by 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. This cardinal principle has not been followed by the High Court in the instant case. We shall now consider the proposed amendment and to see whether it introduces a totally different, new and inconsistent case as observed by the Hon'ble Judges of the Division Bench and as to whether the application does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which the appellants were compelled to file the suit before the High Court in the capacity of the beneficiaries of the Trust and that the amended plaint is not alien and extraneous to the ambit and purview of Sections 60 and 61 of the Trusts Act. We shall now consider the judgments cited by learned senior counsel for the appellants:- 1. M/s Ganesh Trading Co. vs. Moji Ram (1978) 2 SCC 91 This Court held that the main rules of pleadings in Order 6, CPC, 1908, show that provision for the amendment of pleadings subject to such terms as to costs and giving to all parties concerned necessary opportunities to meet exact situations resulting from any amendment, are intended for promoting the ends of justice and not for defeating them. This Court further held that the amendment only sought to give notice to the defendant on facts which the plaintiff would and could have tried to prove in any case. Such notice was given only by way of abundant caution so that no technical objection can be taken that what was sought to be proved was outside the pleadings. 2. Jai Jai Ram Manohar Lal vs. National Building Material Supply, Gurgaon, 1969 (1) SCC 869 It was held that a party cannot be refus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned senior counsel for the respondent. 1. K.K. Modi vs. K.N. Modi and Others, (1998) 3 SCC 573 This civil appeal was filed by K.K. Modi against K.N. Modi and Others and this judgment was relied on by Mr. Ganesh to show that the parties are litigating before different forums and that the directions issued by this Court pending final disposal of the suit in the Delhi High Court. 2. Lord Simonds, Sir John Beaumont and Sir Lionel Leach, AIR (37) 1950 PC 68, The Privy Council, in the above case, has observed as under:- "The powers of amendment must be exercised in accordance with legal principles. An amendment which involves the setting up of a new case and alters the real matter in controversy between the parties cannot be allowed." 3. Kumaraswami Gounder and Others vs. D.R. Nanjappa Gounder (dead) and Others, AIR 1978 Madras 285 FB. Likewise, the above case was cited in regard to the permissibility of amendment by introducing a new cause of action. This Full Bench decision of the Madras High Court was cited for the proposition that when the amendment sought for sets up a totally different cause of action which ex facie cannot stand on a line with the original pleading, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the year 1996- 97 when the market price was rising from ₹ 250-300/- per share which means a mere 2.5% return on the investment per annum. If the said GPI shares were to be sold and then invested in Government Bonds/Securities the investments would yield a minimum return of 10% to 12% per annum. 8. It is pertinent to mention that since 1991-92, even the dividends declared on GPI shares are being solely appropriated by the defendant no. 1 to the exclusion of the beneficiaries. Since defendant no.1 who is holding the said shares of the Trust is deriving benefit by holding the shares, the beneficiaries of the Trust are being deprived from the benefit which they are entitled to. It is in the interest of justice that the said shares may be sold and then invested in Government Bonds and/or Securities which will be in the interest of beneficiaries, because at present the beneficiaries are not deriving any benefit by virtue of the said shares which are in power and possession of defendant no. 1 as is evident from the records of the case. It is thus seen that the entire case of the plaintiff revolves around the equity shares of GPI and that the dividend declared thereon are not ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the plaint. 03.12.2001 SLP filed 18.01.2002 Notice was issued in the SLP - Further proceedings in the suit was stayed until further orders. 26.08.2002 Interim order dated 18.01.2002 shall continue to remain in operation during the pendency of the appeal. From the above noted dates, it is clearly seen that the respondents have filed their amended written statement and the appellants their replication to the amended written statement and conducted admission and denial of documents and more so the issues were framed and despite the said fact, the High Court has allowed the appeal of the respondents and dis-allowed the application of the petitioner for amendment of the plaint. Since the Court has entered into a discussion into the correctness or falsity of the case in the amendment, we have no other option but to interfere with the order passed by the High Court. Since it is settled law that the 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, the order passed by the High Court is not sustainable in law as observed by this Court in Sampath Kumar vs. Ayyakannu and Another, (2002) 7 SCC 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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