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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.      3295      OF     2012   (Arising out of S.L.P. (Civil) No. 27961 of 2010)

Rameshkumar Agarwal                   .... Appellant(s)

Versus

Rajmala Exports Pvt. Ltd. & Ors.             .... Respondent(s)

J     U     D     G     M     E     N     T   

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  

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.  

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1233 of 2008 filed by respondent No.1 herein for  

amendment in the plaint.

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  

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 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.

(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  

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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 to be acted only when the Company will  

give an advance loan of Rs.1,85,00,000/- and further upon  

failure of the appellant to 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 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  

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  

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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 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 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  

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-parte ad interim order dated  

06.09.2007.  After hearing the parties, the High Court, by  

order dated 26.11.2007, vacated the ex-parte ad interim  

order. On 20.08.2008, respondent No.1-Company took out  

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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 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  

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  

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  

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  

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for 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  

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 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 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  

herein –  defendant No.1 therein, contended that the  

proposed amendment altered the cause of action, after  

perusal of the entire averments, we are of the view that it  

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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 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 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 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,  

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contained in a 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  

make amendment of the plaint which reads as under;

“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.”

8) Order I Rule 1 of the Code speaks about who may be  

joined in a suit as plaintiffs.  Mr. Shekhar Naphade, learned  

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,  

particularly, Plaintiff Nos. 2 & 3 have nothing to do with the  

contract, and according to him, the Courts below have  

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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 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 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) In Rajkumar Gurawara (Dead) Through L.Rs vs.  

S.K. 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  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 of limitation………”

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10) In Revajeetu Builders & Developers vs.  

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 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:

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

(2) whether the application for amendment is bona  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;

(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

(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.

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  

amendment ordinarily the Court must not refuse bona fide,  

legitimate, honest and necessary amendments and should  

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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 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 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. 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 the original plaint, we  

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hold that by this process the plaintiff is not altering the  

cause of action and in any way prejudice defendants.

13) By the present amendment, the plaintiff furnished more  

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.

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.  

………….…………………………J.                  (P. SATHASIVAM)                                  

       ………….…………………………J.                 (J. CHELAMESWAR)                                   

NEW DELHI; MARCH 30, 2012.

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