M C AGRAWAL HUF Vs. SAHARA INDIA

JUDGEMENT

(1.) By an order dated 27th of August, 2007, we issued notice in the present special leave petition and granted interim stay of all further proceedings in Suit No.M-73/2007 pending before the Additional District Judge, Delhi. In compliance with our notice, the respondent has entered appearance. Counter affidavit has already been filed. Learned counsel appearing on behalf of the petitioner submitted that no rejoinder affidavit is required to be filed and the matter can be disposed of. Such being the stand taken by the learned counsel for the parties, we grant leave and take up the hearing of the appeal.

(2.) This appeal relates to rejection of an application for amendment of plaint filed at the instance of the plaintiff/appellant in a suit for eviction, mesne profit and for mandatory injunction. The suit was, however, decreed ex-parte and an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree was rejected by the trial court as well as by the High Court, but the orders of the trial court as well as of the High Court were set aside by this Court and the suit was restored to file. When the suit was restored to file, the plaintiff/appellant filed an application for amendment for deletion of the prayer for delivery of air tickets and for consolidating the same with the prayer of mesne profits as under: "Award mesne profits equivalent to the rent payable in respect of the premises and the value of the air tickets payable by defendant as determined by this Court."

(3.) Consequential amendment was also sought in paragraph 12 of the plaint. The trial court declined the amendment solely on the ground that the relief for the delivery of air tickets was earlier declined in the ex- parte decree and the petitioner, therefore, could not ask indirectly what was declined to them directly. Feeling aggrieved, the appellant had filed a revision application before the High Court which also affirmed the order of the trial court. The High Court by the impugned order while holding that the amendment could not have been denied on the basis of the ex-parte decree which had already been set aside, refused the prayer for amendment on the ground that contractual use and occupation charges would not be necessary for the purpose of determination of the mesne profits. Accordingly, the order of the trial court was affirmed and the application for amendment of the plaint was rejected.