SARASWATI SIKAND Vs. R D SIKAND

JUDGEMENT

(1.) This order will dispose of the application of the plaintiff under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint. The brief facts giving rise to this application are : that plaintiff has'filed this. suit for a permanent injunction on the allegations that the property being No.A-15/3, Vasant Vihar, New Delhi was originally owned by Shri' A.C Sikand, father of plaintiff No. 2 and 3 and defendant No.l and husband of plaintiff No.l; that on 31st January, 1976 defendant No.l got a gift deed executed from Shri A.C. Sikand on misrepresentation whereby the property was transferred in the name of defendant No. 1; that the parties to the suit had always treated the property to be a joint family property with the plaintiffs and defendant No.l each having one-fourth share therein and that defendant No. 1 was holding the property in a fiduciary capacity and did not have any absolute right therein. It is also alleged that defendant No. 1 did not at any time deny the right, title and interest of the plaintiffs in the said property and when in 1986 roof rights of the property were sold to defendants 2 and 3 by defendant No. 1, the same was done on a representation having been made by defendant No 1 that the amount so received will be invested in a business in which plaintiff No. 3 would also be involved and have an equal share. It is alleged that the intentions of defendant No. 1 had become dishonest and he, without the knowledge and consent of the plaintiffs, entered into an agreement to sell the ground floor of the house to defendants 2 and 3 which was only by way of a distress sale. Defendant No-.1 issued legal notices dated 31st December, 1994 and 21st January, 1995 calling upon plaintiff No. 3 to vacate the house and it is alleged that it was the first time that defendant No.l had denied the right and interest of the plaintiffs in the house and had claimed the house as his absolute property. It was on these allegations that the plaintiffs filed the present suit for an injunction for restraining the defendants from in any manner dispossessing them and from in any manner interfering with the peaceful enjoyment of the ground floor of the house by the plaintiffs. Certain other reliefs have also been claimed in the suit. Arguments on other applications of the defendant under Order 39 Rule 4 Civil Procedure Code and Order 7 Rule 11 Civil Procedure Code were heard and the suit was reserved for orders, when the plaintiffs moved this application for amendment of the plaint.

(2.) By the proposed amendment plaintiffs now want to add paragraph 17 A after the existing paragraph 17 to the effect that plaintiffs were entitled to a declaration that the alleged gift is a sham transaction and was obtained by defendant No. 1 by misrepresentation and by exercising undue influence and that the plaintiffs were also entitled to certain reliefs which were direct result of the proposed amendments*. The application is being opposed by the defendants mainly on the ground that the amendment would change the character of the suit as a result of which the lis will assume a complexion, wholly beyond the realm of the cause of action. It is alleged in the reply that plea of the plaintiffs that the gift deed was a sham transaction was wholly false and was an afterthought and that the plaintiffs were estopped from claiming themselves to be the co-owners. It was, therefore, stated that the application should be dismissed as the same amounted to substituting a cause of action by another one.

(3.) Rule 17 of Order 6 Civil Procedure Code gives power to the Courts to allow amendments when the justice of the case requires the same. The object of Rule 17 of Order 6 Civil Procedure Code is that the Courts should get and try the merits ofthe case that comes before them and should consequently allow all amendments that may be necessary for determining the real questions in controversy between the parties without causing injustice to the other side. The general rule is that all amendments are to be allowed which do not purport to set up new case and which would not cause injustice to other side and which will be necessary for the purpose of determining the real questions in controversy between the parties; It is also established principle that object ofthe Courts is to decide rights ofthe parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. An application for amendment which is not mala fide should be allowed and the same is also allowed with a viewto avoid the multiplicity of proceedings. The rules confer a very wide discretion on the Courts in the matter of amendments and these powers are to be liberally exercised. While considering whether an amendment should or should not be allowed, the Court ought not to go into the merits ofthe amendments or to go into the alleged falsity ofthe case in the amendment. An admission, however, made in the suit cannot be allowed to be withdrawn unless cogent explanation has been given for the same. It is in this background that I have to consider the present application of the plaintiff.