CPC | Order VI Rule 17 Obligates Litigant To Make All Amendments Necessary For Determining Real Questions In Controversy: Delhi High Court

The Delhi High Court has held that Order VI Rule 17 of CPC casts an obligation on the litigant to carry out all such amendments as are necessary for the purpose of determining the real question in controversy.

A single judge bench of Justice C. Hari Shankar observed that the use of word "shall" later in Order VI Rule 17 is mandatory in nature.

"It casts an obligation and a duty to carry out, necessarily, all such amendments as are necessary for the purpose of determining the real questions in controversy between the parties. In this context, the use of the word "made", instead of "allowed" is also significant. Order VI Rule 17 does not say that "all such amendments shall be allowed". It states that "all such amendments shall be made". To my mind, the use of the word "made" is significant and purposeful. Amendments are allowed by the Court, but they are made by the litigant applying for the amendment. The use of the expression "shall be made", instead of "shall be allowed", therefore, indicates that the duty that is cast, by Order VI Rule 17, is cast on the litigant, rather than on the Court."

Briefly, the facts of the case are that a plaint was filed by the plaintiff-petitioner claiming ownership rights in a property on the basis of an undertaking. Consequently, the plaintiff-petitioner sought a declaration of being an owner and execution of further documents in his favour to that effect by way of a mandatory injunction. Later, the plaintiff-petitioner wanted to seek amendment in his prayer and change his claim from that of being an owner to having the right to use the parking space in perpetuity to the exclusion of the defendant-respondents.

The Trial Court rejected the petitioner's application on the premise that the petitioner was retracting his claim of being an owner and substituting it with a new case of having a right to use the parking space rear portion in perpetuity. The case that was being sought to be set up in the amended plaint was, therefore, according to the Trial Court, different from the case set up in the original plaint, and resulted in changing of the entire nature of the suit as well as the evidence which would be required to be produced in the case.

However, the petitioner submitted that the amendment was being sought only because of an error by the Counsel who had drafted the plaint and he was only claiming his due as per the undertaking. He submitted that the nature and character of the suit was not altered or compromised, as the document on the basis of which the petitioner was staking his claim continued to remain the undertaking.

Findings

The High Court held that the opening words of Order VI Rule 17 indicate that amendment of pleadings may be allowed by the Court at any stage of the proceedings. Further, the Court opined that Order VI Rule 17, while setting out a circumstance in which the amendment shall be made, does not delineate the circumstances in which the prayer for amendment may be refused. The court stated that–

"It merely identifies one situation in which the amendment is necessary for determining the real issues in controversy between the parties as one circumstance in which the amendment is mandatorily required to be allowed. The circumstances in which a prayer for amendment of pleadings may justifiably be refused are not, therefore, set out in Order VI Rule 17."

The court also relied upon the judgement of Rajkumar Gurawara v. S.K. Sarwagi & Co. (P) Ltd. to state that pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial.

Relying on some other judicial pronouncements regarding the issue, the court held that while the principles governing applications seeking amendment of pleadings, under Order VI Rule 17 CPC were well- settled to the effect that that all amendments were to be allowed which are necessary for determining the real question in controversy, they were subject to exceptions where allowing the amendment would result in irreparable injustice to the opposite party.

The court interpreted the facts of the case as the petitioner seeking a declaration that he was the owner of the rear parking space. Apparently having re-read the undertaking, the petitioner now sought to urge that the right which flowed to him under the undertaking was only a right to use the rear parking space and that ownership had, therefore, been claimed by mistake. The court held that the issue, pre or post-amendment, only involved interpretation of the undertaking.

Further, the court opined that–

"It is well settled that the CPC, as a procedural statute, cannot be so interpreted as to defeat substantive rights. If, indeed, the undertaking dated 11th May, 2001 (assuming it to be genuine and reliable), in fact, grants the petitioner right of user of the rear parking space, the petitioner cannot be disentitled from enforcing this right merely because, at the time of drafting and filing of the plaint, the case set up was of ownership. It is always open to the respondents to oppose the petitioner's claim, on facts as well as in law. Trail has not yet commenced, as affidavit in evidence has yet to be filed by the petitioner."

Thus, the court held that the amendment in the prayer clause in the plaint was deserved to be allowed and that the Trial Court in holding otherwise, has erred. The court elaborated on this by stating that treating the nature and character of the suit as changed, merely because the petitioner, instead of claiming ownership over the rear parking space on the basis of the undertaking, chose to claim only a right to use the rear parking space in perpetuity, as altering the nature and character of the suit, would be an unduly restricted manner of applying Order VI Rule 17, as either claim was predicated on the undertaking and on the undertaking alone.

The application for amendment, preferred by the petitioner was thus allowed.

CASE TITLE: MR. VIJAY GUPTA v. MR. GAGNINDER KR. GANDHI & ORS.

Citation: 2022 LiveLaw (Del) 606

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