RAMESHKUMAR AGARWALversusRAJMALA EXPORTS PVT. LTD. & ORS.

                        [2012] 3 S.C.R. 992


A                   RAMESHKUMAR AGARWAL
                                   v
              RAJMALA EXPORTS PVT. LTD. & ORS.
                 (Civil Appeal No. 3295 of 2012)

                          MARCH 30, 2012
8
         [P. SATHASIVAM AND J. CHELAMESWAR, JJ.]

         Code of Civil Procedure, 1908 - Or. VI, r. 17 - Amendment
    of pleadings -Suit by respondent for specific performance of
C   agreement of sale of immovable property - Subsequent
    prayer by plaintiff-respondent for amendment of the plaint -
    Plea of defendant-appellant that the proposed amendment
    altered the cause of action - Held: Not tenable - The
    amendment application was filed immediately after filing of
O   the suit and before commencement of the trial - The
    proposed amendment merely introduced facts/evidence in
    support of the contention already pleaded, viz., that the entire
    consideration under the agreement had been paid - In the
    original plaint, the details of payment of consideration were
E   not stated and by the amendment, the plaintiff wanted to
    explain how money consideration was paid - There was thus
    no inconsistency in the case of the plaintiff- By the proposed
    amendment, the plaintiff was not altering the cause of action
    and in any way prejudice the defendants - The amendment
F   sought for was also not barred by limitation.

       Code of Civil Procedure, 1908- Or. VI, r.17-Amendment
  of pleadings - Object and scope of - Factors to be taken into
  consideration while dealing with application for amendments
  - Held: While deciding application for arpendment ordinarily
G the Court must not refuse bona fide, legitimate, honest and
  necessary amendments and should never permit mala fide
  and dishonest amendments - Purpose and object of Order
  VI Rule 17 of CPC is to allow either party to alter or amend
  his pleadings in such manner and on such terms as may be
H                              992
RAMESHKUMAR AGARWAL v. RAJMALA EXPORTS 993
            PVT. LTD. & ORS.

just - Amendment cannot be claimed as a matter of right and     A
under all circumstances, but the Courts while deciding such
prayers should not adopt a hyper-technical approach - Liberal
approach should be the general rule particularly, in cases
where the other side can be compensated with costs -
Normally, amendments are allowed in the pleadings to avoid      B
 multiplicity of litigations.

     Respondent no.1 filed suit for specific performance
of agreement of sale of immovable property before the
High Court. Later, respondent no.1-plaintiff took out           C
Chamber Summons in the suit for amendment of the
plaint. A Single Judge of the High Court partly allowed
the Chamber Summons. Against the order, the appellant-
defendant filed appeal before the Division Bench of the
High Court which dismissed the same. Hence the present
appeal.                                                         D

     Dismissing the appeal, the Court
     HELD:1. After filing a suit for specific performance in
the year 2007, the plaintiff filed Chamber Summons for          E
amendment of plaint for impleadment of two parties as
plaintiff Nos. 2 & 3 and three parties as defendant Nos.
3,4 & 5 apart from the fact that he wants to explain how
money consideration under the agreement of sale was
paid. A perusal of the amendment application shows that
plaintiff by this amendment seeks to incorporate certain        F
facts, which according to him, establish that an aggregate
amount of Rs. 2,05,00,000/- was paid by him and the
proposed plaintiffs prior to the suit agreement; that
defendant No.1 confirmed having received the payment
from the plaintiffs in the name of his nominees, namely,        G
proposed defendant Nos. 3-5 and the receipt of the
amount was reflected in the accounts of proposed
defendant Nos. 3-5. It is also projected that the proposed
amendment is limited to the extent of contending that
defendant Nos. 1 and 2 and the proposed defendants              H
    994    SUPREME COURT REPORTS              [2012] 3 S.C.R.


A treated the payment made by the plaintiffs to defendant
  Nos.3 to 5 as payment having been made to defendant
  No.1. Though the appellant herein-defendant No.1 therein,
  contended that the proposed amendment altered the
  cause of action, after perusal of the entire averments, this
B Court is of the view that it merely introduce facts/evidence
  in support of the contention already pleaded, viz., that the
  entire consideration under the agreement has been paid.
  In the original plaint, the details of payment of
  consideration have not been stated and by the present
c amendment, the plaintiff wants to explain how money was
  paid. Accordingly, there is no inconsistency in the case
  of the plaintiff. The claim that the present amendment
  being barred by limitation is also rightly rejected by the
  Courts below. [Para 5] [998-E-H; 999-A-B]
D       2. Order VI Rule 17 of CPC enables the parties to
  make amendment of the plaint. It is clear that while
  deciding the application for amendment ordinarily the
  Court must not refuse bona fide, legitimate, honest and
  necessary amendments and should never permit mala
E fide and dishonest amendments. The purpose and object
  of Order VI Rule 17 of CPC is to allow either party to alter
  or amend his pleadings in such manner and on such
  terms as may be just. Amendment cannot be claimed as
  a matter of right and under all circumstances, but the
F Courts while deciding such prayers should not adopt a
  hyper-technical approach. Liberal approach should be
  the general rule particularly, in cases where the other side
  can be compensated with costs. Normally, amendments
  are allowed in the pleadings to avoid multiplicity of
G litigations. [Paras 7, 11] [999-F; 1001-H; 1002-A-C]
      Rajkumar Gurawara (Dead) Through L.Rs vs. S.K.
  Sarwagi & Company Private Limited & Anr. (2008) 14 SCC
  364: 2008 (8) SCR 700 and Revajeetu Builders &
  Developers vs. Narayanaswamy & Sons & Ors. (2009) 10
H SCC 84: 2009 (15) SCR 103 - referred to.
RAMESHKUMAR AGARWAL v. RAJMALA EXPORTS 995
            PVT. LTD. & ORS.
      3. In the instant case, in view of the fact that the       A
amendment application came to be filed immediately after
filing of the suit (suit came to be filed in 2007 and the
amendment application was in 2008) i.e. before
commencement of the trial and taking note of the fact that
the single Judge confined the relief only to a certain           B
extent and also that in the proposed amendment the
plaintiff wants to explain how the money was paid,
though necessary averments in the form of foundation
have already been laid in the original plaint, it is held that
by this process the plaintiff is not altering the cause of       c
action and in any way prejudice defendants. [Para 12]
[1002-0-E]

    4. By the present amendment, the plaintiff furnished
more details about the mode of payment of
consideration. Accordingly, it is held that there is no          D
inconsistency and the amendment sought for is not
barred by limitation. [Para 13] [1002-F]
                     Case Law Reference:
    2008 (8) SCR 700            referred to         Para 9       E

    2009 (15) SCR 103           referred to         Para 10
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3295 of 2012.
                                                                 F
    From the Judgment & Order dated 8.6.2010 of the High
Court of Judicature at Bombay in Appeal No. 40 of 2010 in
Chamber Summons No. 1233 of 2008 in Suit No. 2374 of
2007.
                                                                 G
      Shekhar Naphade, Amit Kumar Sharma, E.C. Agrawala
for the Appellant.         ·

   Vinay Navare, Abha R. Sharma, Gaurav Agrawal for the
Respondents.
                                                                 H
    996      SUPREME COURT REPORTS                [2012] 3 S.C.R.


A         The Judgment of the Court was delivered by

          P.SATHASIVAM, J. 1.Leave granted.

        2. This appeal is directed against the final judgment and
  order dated 08.06.2010 passed by the High Court of
B Judicature at Bombay in Appeal No. 40 of 2010 in Chamber
  Summons No. 1233 of 2008 in Suit No. 2374 of 2007 whereby
  the High Court disposed of the appeal filed by the appellant
  herein by partly allowing Chamber Summons No. 1233 of 2008
  filed by respondent No.1 herein for amendment in the plaint.
c
          3. Brief facts:

       (a) The property (Bungalow) in question was constructed
  by the late Ganpatrai Agarwal, father of the appellant herein.
  Vipin Kumar Agarwal, respondent No.4 is the brother of the
D appellant. The land on which the said bungalow is constructed
  is a leasehold property and belongs to Hatkesh Co-operative
  Housing Society Limited (hereinafter referred to as "the
  Society"). The Society granted leasehold rights in respect of
  the said plot by indenture of lease dated 22.02.1976. The
E mother of the appellant passed away in 1991 and his father also
  passed away in 2002. After the death of the parents, the
  appellant holds 50% share in the suit property and his brother,
  respondent No.4 herein, also holds remaining 50% share in the
  suit property.
F
       (b) According to the appellant, in the year 2002, for setting
  up a new business, he was in need of substantial finance and
  for that purpose, he approached respondent No.1-Company
  through its Director Mr. Rajendra Kumar Aggarwal, who is his
G co-brother. Respondent No.2 agreed to finance the proposed
  projects on the condition that some documents are required to
  be executed as security. In 2006, the appellant signed an
  agreement with the Company promising to give his share in the
  bungalow as a security for the loan. The said agreement was
H to be acted only when the Company will give an advance loan
RAMESHKUMAR AGARWAL v. RAJMALA EXPORTS 997
     PVT. LTD. & ORS. [P. SATHASIVAM, J.]

of Rs.1,85,00,000/- and further upon failure of the appellant to   A
repay the same within a period of two years from the date of
disbursement of the full amount of loan with interest @ 12% p.a.
Even before getting the loan amount, the appellant herein
signed the agreement. Due to adverse market conditions, the
appellant did not go ahead with the proposed project and did       B
not take any kind of financial assistance from respondent No.1
- Company and respondent No.2 - co-brother of the appellant.

     (c) According to respondent No.2, the appellant signed an
agreement for sale on 02.02.2006 for selling 50% of his            C
undivided right, title and interest in the suit property. On
16.08.2007, respondent No.1-Company filed a suit for specific
performance being Suit No.2374 of 2007 before the High Court
of Bombay alleging that the appellant herein had agreed to sell
his 50% share in the suit property to the Company for a
consideration of Rs.1,85,00,000/- and also alleged that the        D
appellant ensured that respondent No.4 - the brother of the
appellant would sell his 50% undivided share in the property
to the Company for Rs.3,00,00,000/- and represented him as
an agent of respondent No.4. On 06.09.2007, respondent No.1
- Company took out Notice of Motion No.3241 of 2007 in which       E
an ex-parte ad interim order was passed in their favour.

     (d) The appellant herein sent a letter dated 10.09.2007
through his advocate to respondent Nos. 1 & 2 for seeking
details of the consideration of Rs.1,85,00,000/- and also for      F
inspection of various documents referred to and relied on by
them in the plaint as well as in the Notice of Motion. After
inspecting the documents, the appellant filed a reply and prayed
for vacating of the ex-pa rte ad interim order dated 06.09.2007.
After hearing the parties, the High Court, by order dated          G
26.11.2007, vacated the ex-parte ad interim order. On
20.08.2008, respondent No.1-Company took. out Chamber
Summons No. 1233 of 2008 in Suit No. 2374 of 2007 with a
prayer to amend the plaint by impleading other parties. The
appellant herein opposed the same. However, by order dated
                                                                   H
    998      SUPREME COURT REPORTS                 [2012] 3 S.C.R.


A 21.11.2009, learned Single Judge of the High Court partly
  allowed the Chamber Summons.

       (e) Against the order dated 21.11.2009, the appellant
  herein preferred an appeal before the Division Bench being
B Appeal No. 40 of 2009 in Chamber Summons No. 1233 of
  2008 in Suit No. 2374 of 2007. By the impugned order dated
  08.06.2010, the Division Bench of the High Court dismissed
  the appeal.

          (f) Aggrieved by the said order of the High Court, the
C appellant has filed this appeal by way of special leave before
  this Court.

      4. Heard Mr. Shekhar Naphade, learned senior counsel for
  the appellant, Mr. Gaurav Agrawal, learned counsel for
D respondent Nos. 1-3 and Mr. Vinay Navare, learned counsel for
  respondent No.4.

         5. After filing a suit for specific performance in the year
    2007, the plaintiff filed Chamber Summons No. 1233 of 2008
    for amendment of plaint for impleadment of two parties as
E   plaintiff Nos. 2 & 3 and three parties as defendant Nos. 3,4 &
    5 apart from the fact that he wants to explain how money was
    paid. A perusal of the amendment application shows that
    plaintiff by this amendment seeks to incorporate certain facts,
    which according to him, establish that an aggregate amount of
F   Rs. 2,05,00,000/- was paid by him and the proposed plaintiffs
    prior to the suit agreement; that defendant No.1 confirmed
    having received the payment from the plaintiffs in the name of
    his nominees, namely, proposed defendant Nos. 3-5 and the
    receipt of the amount was reflected in the accounts of proposed
G   defendant Nos. 3-5. It is also projected that the proposed
    amendment is limited to the extent of contending that defendant
    Nos. 1 and 2 and the proposed defendants treated the payment
    made by the plaintiffs to defendant Nos.3 to 5 as payment
    having been made to defendant No.1. Though the appellant
H   herein - defendant No.1 therein, contended that the proposed
 RAMESHKUMAR AGARWAL v. RAJMALA EXPORTS 999
      PVT. LTD. & ORS. [P. SATHASIVAM, J.]

amendment altered the cause of action, after perusal of the             A
entire averments, we are of the view that it merely introduce
facts/evidence in support of the contention already pleaded, viz.,
that the entire consideration under the agreement has been
paid. In the original plaint, the details of payment of
consideration have not been stated and by the present                   s
amendment, the plaintiff wants to explain how money was paid.
Accordingly, there is no inconsistency in the case of the plaintiff.
The claim that the present amendment being barred by
limitation is also rightly rejected by the Courts below. In fact, the
learned single Judge allowed the Chamber summons only to                c
the extent of prayers (a) and (b) subject to clarification made
in paragraph 14 of his order.

     6. Order VI Rule 2 of the Code of Civil Procedure, 1908
(hereinafter referred to as "the Code") makes it clear that every
pleading shall contain only a statement in a concise form of the        D
material facts on which the party pleading relies for his claim
or defence but not the evidence by which they are to be proved.
Sub-rule (2) of Rule 2 makes it clear that every pleading shall
be divided into paragraphs, numbered consecutively, each
allegation being, so far as is convenient, contained in a               E
separate paragraph. Sub-rule (3) of Rule 2 mandates that
dates, sums and numbers shall be expressed in a pleading in
figures as well as in words.

   7. Order VI Rule 17 of the Code enables the parties to               F
make amendment of the plaint which reads as under;

     "17. Amendment of pleadings - The Court may at any
     stage of t.he 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              G
     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            H
    1000    SUPREME COURT REPORTS                    [2012] 3 S.C.R.


A       comes to the conclusion that in spite of due diligence, the
        party could not have raised the matter before the
        commencement of trial."

        8. Order I Rule 1 of the Code speaks about_ who may be
  joined in a suit as plaintiffs. Mr. Shekhar Naphade, learned
8
  senior counsel for the appellant, after taking us through the
  agreement for sale dated 02.02.2006, pointed out that the
  parties to the said agreement being only Rameshkumar
  Agarwal, the present appellant and Rajmala Exports Pvt. Ltd.,
  respondent No.1 herein and the other proposed parties,
C particularly, Plaintiff Nos. 2 & 3 have nothing to do with the
  contract, and according to him, the Courts below have
   committed an error in entertaining the amendment application.
   In the light of the said contention, we have carefully perused the
  agreement for sale dated 02.02.2006, parties to the same and
D the relevant provisions from the Code. We have already pointed
   out that the learned single Judge himself has agreed with the
   objection as to proposed defendant Nos. 3-5 and found that
   they are not necessary parties to the suit, however, inasmuch
   as the main object of the amendment sought for by the plaintiff
E is to explain how the money was paid, permitted the other
   reliefs including impleadment of plaintiff Nos. 2 & 3 as parties
   to the suit.

        9.ln Rajkumar Gurawara (Dead) Through L.Rs vs. S.K.
F   Sarwagi & Company Private Limited & Anr. (2008) 14 SCC
    364, this Court considered the scope of amendment of
    pleadings before or after the commencement of the trial. In
    paragraph 18, this Court held as under:-

        "........... It is settled law that the grant of application for
G       amendment be subject to certain conditions, namely, {i)
        when the nature of it is changed by permitting amendment;
        {ii) when the amendment would result in introducing new
        cause of action and intends to prejudice the other party;
        (iii) when allowing amendment application defeats the law
H       of limitation ......... "
RAMESH KUMAR AGARWAL v. RAJ MALA EXPORTS 1001
     PVT. LTD. & ORS, [P. SATHASIVAM. J.]

     10. In Revajeetu Builders & Developers vs.                    A
Narayanaswamy & Sons & Ors. (2009) 10 SCC 84, this Court
once again considered the scope of amendment of pleadings.
In paragraph 63, it concluded as follows:

    "Factors to be taken into consideration while dealing with     8
    applications for amendments

    63. On critically analysing both the English and Indian
    cases, some basic principles emerge which ought to be
    taken into consideration while allowing or rejecting the
    application for amendment:                                     C

         (1) whether the amendment sought is imperative for
    proper and effective adjudication of the case;

          (2) whether the application for amendment is bona
                                                                   0
    fide or mala fide;

         (3) the amendment should not cause such prejudice
    to the other side which cannot be compensated
    adequately in terms of money;
                                                                   E
          (4) refusing amendment would in fact lead to injustice
    or lead to multiple litigation;

          (5) whether the proposed amendment constitutionally
    or fundamentally changes the nature and character of the
    case; and                                                      F

         (6) as a general rule, the court should decline
    amendments if a fresh suit on the amended claims would
    be barred by limitation on the date of application.
                                                                   G
         These are some of the important factors which may
    be kept in mind while dealing with application filed under
    Order 6 Rule 17. These are only illustrative and not
    exhaustive."

    11. It is clear that while deciding the application for        H
    1002     SUPREME COURT REPORTS                 [2012] 3 S.C.R.


A amendment ordinarily the Court must not refuse bona fide,
  legitimate, honest and necessary amendments and should
  never permit mala fide and dishonest amendments. The
  purpose and object of Order VI Rule 17 of the Code is to allow
  either party to alter or amend his pleadings in such manner and
B on such terms as may be just. Amendment cannot be claimed
  as a matter of right and under all circumstances, but the Courts
  while deciding such prayers should not adopt a hyper-technical
  approach. Liberal approach should be the general rule
  particularly, in cases where the other side can be compensated
c with costs. Normally, amendments are allowed in the pleadings
  to avoid multiplicity of litigations.

        12. In view of the fact that the amendment application came
  to be filed immediately after filing of the suit (suit came to be
  filed in 2007 and the amendment application was in 2008) i.e.
D before commencement of the trial and taking note of the fact
  that the learned single Judge confined the relief only to a certain
  extent and also that in the proposed amendment the plaintiff
  wants to explain how the money was paid, though necessary
  averments in the form of foundation have already been laid in
E the original plaint, we hold that by this process the plaintiff is
  not altering the cause of action and in any way prejudi.ce
  defendants.

        13. By the present amendment, the plaintiff furnished more
F details about the mode of payment of consideration.
    Accordingly, we hold that there is no inconsistency and the
    amendment sought for is not barred by limitation. We fully agree
    with the conclusion arrived at by the learned single Judge and
    the Division Bench of the High Court.
G        14. In the light of what we have stated above, we do not
    find any merit in the appeal, consequently, the same is
    dismissed. No order as to costs.

    B.B.B.                                      Appeal dismissed.
H