NARENDRA PANDEY Vs. JAGTAR SINGH

JUDGEMENT

(1.) This Petition filed under Article 227 of the Constitution of India impugns the order dtd. 4/9/2019 passed ADJ-06, West District, Tis Hazari Courts, Delhi ('Trial Court') in C.S. No. 11789/2016, titiled as Narender Pandey v. Jagat Singh and Ors., whereby the Trial Court dismissed the application filed by the plaintiff i.e., the Petitioner herein under Order VI Rule 17 of the Code of Civil Procedure, 1908 ('CPC'), seeking amendment in the plaint by incorporating the relief of Specific Performance of the contract (i.e., the alleged unregistered Agreement to Sell ('ATS') dtd. 16/11/2011).

(2.) The learned counsel for the plaintiff states that the existing reliefs in the unamended plaint is premised on the ATS dtd. 16/11/2011. He states that a decree of possession has already been prayed for; however, the prayer for specific performance of the ATS dtd. 16/11/2011 was inadvertently not included in the plaint. He states that the mistake was committed by the erstwhile counsel who at the time of the drafting the plaint failed to pray for specific performance of the said ATS. He relies upon the judgment of Supreme Court in Varun Pahwa v. Renu Chaudhary (2019) 15 SCC 628 to contend that a party must not suffer on account of the mistake of the counsel.

(3.) In reply, learned counsel for the defendants states that the amendment application has been rightly dismissed by the Trial Court in view of the proviso to Order VI Rule 17 of the CPC. He states that the amendment application was filed after the trial has commenced and the plaintiff had examined formal witnesses. He relies upon the judgment of the High Court in Pradeep Bhardwaj v. Indian Bank and Others 2019 SCC OnLine Del 9483 to contend that application for amendment filed after the commencement of trial, failing to show due diligence on the part of the party claiming amendment is to be dismissed.