NARINDER KUMAR KUNDRA Vs. ANIL NIJHAWAN

JUDGEMENT

(1.) By way of this Revision the Order dated 27.2.2003 is assailed. The Defendant had filed an application under Order VI Rule 17 essentially to bring in a Counter Claim. At this stage the case was fixed for Final Arguments. In the Order the application has been rejected because the Court felt it had not been satisfied on the question of why the Counter Claim had not been filed along with the Written Statement. The learned Trial Court had concluded that the application was highly belated and was of a "delaying nature".

(2.) It is trite to state that while allowing the amendments to pleadings a liberal approach should be adopted by the Courts. It cannot also be gainsaid that while considering an amendment the question of whether it is likely to succeed at the conclusion of the Trial, would also not be sufficient reason for rejecting it. This has been so stated in A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation, AIR 1967 SC 96 where the Hon'ble Supreme Court had clarified that the general rule is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new cause of action is barred. Where, however, the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts the amendment is to be allowed even after expiry of the statutory period of limitation.

(3.) While it is certainly arguable in this case that a new cause of action is sought to be introduced and brought in, but that is not the reason why the learned Trial Court has rejected the Defendant's application for amendment of the Written Statement. In Sampath Kumar v. Ayyakannu and another, AIR 2002 SC 3369 the Apex Court held that mere delay in making an application cannot be ground for refusing the prayer for amendment. Learned counsel for the Defendant has relied on a decision of the Hon'ble in M/s. Oriental Ceramic Products Pvt. Ltd. v. Calcutta Municipal Corporation, AIR 2000 Calcutta 17. Here again the factum of the non-filing of the Counter Claim at the time of the Written Statement was the pivotal point and the application was not rejected merely on the grounds of delay.