VOGEL MEDIAL INTERNATIONAL GMBH Vs. JASU SHAN

JUDGEMENT

(1.) Defendants have made this application under Order 6 Rule 7, Order 6 Rule 16 and Order i Rule 10 read with Section 151 CPC with the following prayers

(2.) In brief the facts giving rise to the present application are that while disposing of IA No.3762/2004 filed by the plaintiffs seeking permission to file the amended plaint and deficient court fee on the enhanced value of the suit, this Court vide order dated 22.11.2004 without taking a very strict view of the matter and in order to avoid harassment to the plaintiffs and the delay in the disposal of the suit, allowed the said application as a special case permitted the plaintiffs to file the amended plaint. Pursuant to the saio order an amended plaint dated 10.12.2004 stands filed by the plaintiffs. In the present application, it is alleged by the defendants that the amended plaint so filed by the plaintiffs is not in consonance with the order of this Court dated 22.11.2004, inasmuch as several unauthorized and unnecessary amendments have been incorporated in the amended plaint without leave of the Court. It is alleged that this has been so done by the plaintiffs with oblique motive and it is pointed out that the plaintiffs have described the amended plaint as a plaint in Suit No.883/2001 re-numbered as CS(OS) No.518/2004 despite a categorical finding recorded by this Court that CS (OS) No.518/ 2004 is a freshly instituted suit within the meaning of the provisions of the Code of Civil Procedure and the same shall be tried denovo under the provisions of the Code and therefore, reference to suit No.883/2001 in the plaint is malafide and mischievous; plaintiffs are not entitled to raise any new ground of claim or claim inconsistent with the previous pleadings on record except by way of an application under Order 6 Rule 17 CPC; the plaintiffs in the suit have been differently described inasmuch the plaintiffs are left with no valid or subsisting cause of action against the defendant which objection was taken by the defendant in the written statement and the plaintiffs were not entitled to substitute themselves without the leave of the Court. It is pointed out that on one hand, the plaintiffs are trying to take undue advantage of the order passed by this Court on 22.11.2004, by filing the amended plaint incorporating new grounds and claims, substituting defendants as the defendant no.2 (without leave of the Court) and on the other hand, they have challenged the said order before the Division Bench in FAO (OS) No.274/ 2004. Accordingly, prayers have been made to the above effect.

(3.) Though no reply has been filed but the application is opposed on behalf of the plaintiffs.