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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. 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  

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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 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.   

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(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 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 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  

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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 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  

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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 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, contained in a separate paragraph.  

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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 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  

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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………”

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;

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(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 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  

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form of foundation have already been laid in the original plaint, we  

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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