ANWAR PARVEZ Vs. MOHD FAHEEM & ORS

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India impugns the order of the trial court dated 26.4.2013 which has dismissed an application for amendment filed by the petitioner/plaintiff. The application for amendment was filed before framing of issues. The application for amendment was filed in a suit for declaration with respect to dissolution of partnership, permanent injunction, infringement of trademark etc.

(2.) By the amendment application, the petitioner/plaintiff seeks addition of the relief of rendition of accounts. Trial court has dismissed the application by a cryptic order only by observing that relief of rendition of account was not originally sought and the new facts which are sought to be incorporated were available with the plaintiff/petitioner at the time of filing of the present suit, and therefore the amendment application cannot be allowed.

(3.) In my opinion, the trial court has committed a gross illegality and perversity in disallowing the amendment application because the very basis of filing of the amendment application is that a mistake has been committed by omitting certain facts and reliefs, and consequently the amendment application is filed. The very reason for existence of Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) has been demolished by the impugned order. I fail to understand as to how courts can dismiss an amendment application in this perfunctory manner. It is settled law that CPC is a handmaid of justice. Parties do make mistakes in the conduct of their cases but such mistakes are allowed to be corrected provided there is no grave injustice to the other side. In the present case, there cannot be any prejudice whatsoever to the respondents/defendants because by allowing of the amendment, a relief which ought to have been claimed initially but not claimed by mistake is being claimed, and which is allowed to be incorporated along with relevant amendments. On merits the respondents/defendants during the course of trial will have sufficient opportunity to disprove the case of the plaintiff/petitioner because by allowing of an amendment, the facts as stated in the amendment application are accepted as correct.