Case Note & Summary
The plaintiff, Jwaladutta Jankidas HUF, filed a commercial summary suit against the defendants, Jayant Bhavanji Soni and another, seeking certain reliefs including attachment of properties. The plaintiff took out a summons for judgment, and the learned Single Judge passed an order of conditional leave to defend. On appeal, the appeal court set aside that order, holding that the prayers for attachment were outside the purview of Order 37 Rule 2 of the Code of Civil Procedure, 1908 (CPC), and remanded the summons for judgment for fresh hearing. Thereafter, the plaintiff filed an interim application under Order 6 Rule 17 CPC seeking to amend the plaint by deleting the three prayers for attachment and the supporting averments. The defendants opposed the amendment, arguing that they had acquired a right to defend the suit as framed, i.e., as a commercial summary suit, and that the amendment would take away that right. They relied on Supreme Court judgments including Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, Estralla Rubber v. Dass Estate (Pvt.) Ltd., Peethani Suryanarayana v. Repaka Venkata Ramana Kishore, and Revajeetu Builders and Developers v. Narayanaswamy and Sons. The court considered the principles governing amendment of pleadings, particularly that amendments should be allowed to avoid multiplicity of litigation and to determine the real questions in controversy, provided no prejudice is caused to the opposite party which cannot be compensated by costs. The court held that the defendants' right to defend is not a vested right in the sense of a substantive right; it is a procedural right. The amendment does not prejudice the defendants because they can still raise the same objection—that the suit as originally framed was not maintainable under Order 37—at the hearing of the summons for judgment. The court allowed the amendment, subject to payment of costs of Rs. 25,000 to the defendants, and directed the plaintiff to carry out the amendment within two weeks.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order 6 Rule 17 CPC - Deletion of Prayers - Plaintiff sought to delete prayers for attachment before judgment in a commercial summary suit - Defendants opposed on ground that they had acquired a right to defend the suit as framed because the prayers were outside Order 37 Rule 2 CPC - Court allowed amendment, holding that the right to defend is not a vested right in the sense of a substantive right, and the amendment does not prejudice the defendants' right to seek unconditional leave to defend on the ground that the suit as originally framed was not maintainable under Order 37 - The court noted that the defendants can still raise the same objection at the hearing of the summons for judgment (Paras 4-6).
Issue of Consideration
Whether the plaintiff can be permitted to amend the plaint by deleting prayers for attachment before judgment, which were held to be outside the purview of Order 37 Rule 2 CPC, when the defendants claim a vested right to defend the suit as originally framed.
Final Decision
The court allowed the interim application, permitting the plaintiff to amend the plaint by deleting the three prayers for attachment and the supporting averments, subject to payment of costs of Rs. 25,000 to the defendants. The plaintiff was directed to carry out the amendment within two weeks.
Law Points
- Amendment of pleadings under Order 6 Rule 17 CPC
- Right to defend in summary suit under Order 37 Rule 2 CPC
- Principles governing amendment of plaint
- Vested right to defend as framed
