The High Court of Delhi dismissed a writ petition under Article 227 challenging the trial court's rejection of an amendment petition under Order 6 Rule 17 CPC. The petitioner sought to add facts about undisclosed heirs and alternative accommodations in an eviction petition. The Court found the petitioner lacked due diligence.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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ASHOK KUMAR
.....Petitioner
Through: Mr. Abin B. Kurian, Advocate. versus
SITARA & ORS. .....Respondents Through: Mohd. Elahi, Advocate R-2 with R-2 in person.
CORAM: HON'BLE MR. JUSTICE RAVINDER DUDEJA
J U D G M E N T
RAVINDER DUDEJA, J.
CM APPL.65835/2024 (Exemption)
Allowed, subject to all just exceptions.
The application stands disposed of.
CM(M) 3798/2024 & CM APPL.65834/2024
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within his knowledge at the time of filing of the written statement and there is no reason seeking its incorporation in the written statement at a belated stage.
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“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 for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”
“23 That the present petition is not maintainable as the petitioners are not the only legal heirs of late Sh. Abdul Gaffar and the suit property has been inherited by other LRs of Late Sh. Abdul Gaffar i.e. Srnt. Yasmin W/o Mohd. Arif, D/o Mohd Zahid granddaughter of late Abdul Gaffar R/o 3336, Baghechi, Achheji, Bara Hindu Rao, Near Dispensary Delhi-110006, Ms. Sadaf D/o Late Wahabuddin, Grand Daughter of Late Abul Gaffar R/o 5091, Gali Chowkidar Wali, Quresh Nagar, Sadar Bazar, Delhi-110006 and Smt. Sana W/o Mohd. Waseem, Grand Daughter of Abdul Gaffar R/o 2255, Street Dakotan, Turkman Delhi-110006.
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properties were not disclosed in the Eviction Petition but were revealed by the Respondent No. 2 in his application for leave to defend and were not denied by the (The Petitioner in his reply to the said application. The details of the said properties are as under:-
i. That the Petitioner No.5 has intentionally concealed with malafide intention not disclosed in the Petition about properties bearing Nos. 7582-7585 Badi Masjid Road, Qasab Pura, Delhi - 110006. The said premises are commercial premises, owned by Sh. Abdul Gaffar and are presently in possession of his grandchildren including the Petitioner No.5 herein who is claiming himself to be the grandson, the said properties consisting of ground floor, first floor, second floor and in sorne of the properties, the floors above thereto. There are shops on the ground floor in the above properties inter alia in possession of the Petitioner No.5 who is running his meat and leather business therefrom. Further Mohd. Shahid is residing in one of the said properties bearing No:7584, Badi Masjid Road, Qasab Pura, Delhi 110006.
ii. That (the properties bearing No. 7582-7585, Masjid Road, Qasab Pura, Delhi-110006 are part of the commercial hub and would be much more suitable for the Petitioner No.5 to start a business.
iii. The Petitioner No.5 has also concealed and deliberately not disclosed in the Eviction Petition about the other properties bearing Nos. 5090-5091, Gali Brahmin Wali, Qasab Pura, Delhi 110006 and Shop No. 731, Chhota Bazar Kashmiri Gate Delhi-110006. The said properties are commercial in nature, owned by Mohd. Abdul Gaffar, the so called grandfather of the Petitioner No. 5 and are presently in possession of his grandchildren including the Petitioner No.5 who is claiming himself as his grandson, the said properties are built up consisting of shops on ground floor and residential above thereto.
iv. The Petitioner No.5 did not disclose in the Eviction Petition about another property bearing No. 5090, Chowkidar Wali, Qasab Pura, Delhi 110006. The said property is adjoining to property bearing No. 509 Gali Chowkidar Wali, Qasab Pura, Delhi, these properties are commercial, situated in a very wide street/road and owned by the said Abdul Gaffar and is presently in possession of the Petitioner No.5 who is claiming himself as his grandson. The said property is built up consisting of shops on ground floor and portion built above thereto are using for residence.
v. That the Petitioner no.5 has further concealed and not disclosed in the Eviction Petition (out of the above shops on Chhota Bazar, Kashmere Gate, there are two shops both bearing Nos. 732A, out of
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which one shop and seven shops on the first floor of this property are in possession of the Petitioner No.5 who is also running his business of spare parts therefrom).
vi. That the petitioner No.5 has further concealed of property No. 2966-2971, Ganda Nala Bazar, Mori Gate, Delhi 110006 the same is commercial built up Ground Floor, First Floor, Second Floor and Third Floor having number of shops on each floors shown therein. It is submitted that the Petitioner No.5 is in possession of all the shops on first floor, second floor and third floor, who is using the same for running his businesses therefrom.
vii. The Petitioner No.5 has further not disclosed about the property situated in Ghazipur Dairy Farm, Gali No. 4. Shivaji Road, Delhi in his power and possession from where he is also doing dairy farm business.
viii. The Petitioner No.5 has further concealed documents with respect to his income and has intentionally not filed his income tax returns, computation of income and balance sheets etc while falsely claiming to be doing business with his brother.
ix. That the Petitioner No.5 has various properties in his power possession wherefrom he is already running his anus businesses of spare parts, meats, leather, dairy form etc. more particularly from the properties described hereinabove and thereby he has sufficient suitable accommodc1tion available to him about which he has intentionally and with malafide intention not disclosed in the Eviction Petition, in order to obtain Eviction order summarily.
x. The Petitioner No.5 has also failed to disclose that the property bearing no. 732B, Chhota Bazar, Kashmere Gate, Delhi 110006 had been vacated by the tenants P.S. Sethi & Sons. way back in the year 2010 and the same is lying vacant since then. The said property is sufficient to meet the alleged need of the Petitioner No.5.”
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Insurance Corporation of India vs. Sanjeev Builders Pvt. Ltd. & Anr. 2022 SC On-line 1128 , after considering various pronouncement regarding the amendment of the pleadings, have culled out the principles for dealing with the applications under Order 6 Rule 17 of the Code, which are as follows:-
“(1) Order 2 Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order 2 Rule 2 CPC is, thus, misconceived and hence negative.
(2) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order 6 Rule 17 CPC.
(3) The prayer for amendment is to be allowed:
(i) If the amendment is required for effective and proper adjudication of the controversy between the parties.
(i) To avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment do not seek to withdraw any clear admission made by the party which confers a right on the other side, and
(c) the amendment does not raise a time-barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
(4) A prayer for amendment is generally required to be allowed unless:
(i) By the amendment, a time-barred claim is sought to be introduced, in which case the fact that the claim would be timebarred becomes a relevant factor for consideration.
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(ii) The amendment changes the nature of the suit.
(iii) The prayer for amendment is mala fide, or
(iv) By the amendment, the other side loses a valid defence.
(5) In dealing with a prayer for amendment of pleadings, the court should b avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
(6) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision. the prayer for amendment should be allowed.
(7) Where the amendment merely sought to introduce an additional or a new approach without introducing a time-barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
(8) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
(9) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
(10) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
(11) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to hear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking
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amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed.”
Abdul Gaffar namely Smt. Yashmin, Ms. Saddaf and Ms. Sana. Secondly, respondent No. 5 Mohd. Saqib has failed to disclose several alternative accommodations available to him for meeting his needs
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and has not disclosed his true income.
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would have the effect of stalling the same.
RAVINDER DUDEJA, J.
JANUARY 24, 2025 RM
Signature Not Verified
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3 issues framed by the court
Whether the High Court is justified in dismissing the petitioner's writ petition challenging the trial court's refusal to allow an amendment to the written statement under Order 6 Rule 17 CPC.
Whether the trial court committed an error in dismissing the amendment application filed by the petitioner at a belated stage after the trial had commenced.
Whether the petitioner demonstrated due diligence in seeking the amendment of pleadings despite the facts being known to him earlier.
Colour shows how this judgement treated each authority
Life Insurance Corporation of India vs. Sanjeev Builders Pvt. Ltd.Referred¶48
Life Insurance Corporation of India vs. Sanjeev Builders Pvt. Ltd. & Anr. 2022 SC On-line 1128
2 provisions across 2 enactments
ASHOK KUMAR
SITARA
RAVINDER DUDEJA
As recorded by the court registry
A petition under Article 227 of the Constitution invoking the High Court's supervisory jurisdiction over subordinate civil courts.
Judgements on the same questions, provisions and authorities, from every court
