Case Note & Summary
The petitioner, Avinash Karnik, filed a suit in the City Civil Court at Bombay seeking declaration and injunction in respect of a flat (suit flat) originally owned by his father. After the father's death, the flat was transferred to the mother pursuant to a Will. The mother nominated respondent no.2 (son of respondent no.1) as nominee in the society records. The mother died in 2005. The petitioner claimed that since the mother's death, the suit flat was lying vacant and respondent no.1 (brother) was in possession. In September 2007, the petitioner discovered that during the pendency of the suit, respondent no.1 had fraudulently transferred the suit flat to respondent no.2 (his son) by executing a deed of assignment. The petitioner filed a Chamber Summons seeking amendment of the plaint to incorporate these subsequent events and to add reliefs for possession and mesne profits. The trial court rejected the amendment on 5th September 2015, holding that the amendment was belated and would change the nature of the suit. The petitioner challenged this order under Article 227 of the Constitution of India before the Bombay High Court. The High Court allowed the writ petition, setting aside the trial court's order. The court held that amendments to bring on record subsequent events and to avoid multiplicity of proceedings should be liberally allowed. The court found that the amendment did not change the nature of the suit as the original suit was for declaration and injunction, and the amendment sought possession and mesne profits based on the same property. The court also held that mere delay is not a ground to reject an amendment if it is necessary for the determination of the real controversy. The court directed the trial court to allow the amendment and proceed with the suit, granting costs of Rs. 5,000 to the respondents.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Subsequent Events - The petitioner sought to amend the plaint to incorporate events that occurred after the filing of the suit, including a fraudulent transfer of the suit flat by the brother during the pendency of the suit. The court held that amendments to bring on record subsequent events and to avoid multiplicity of proceedings should be liberally allowed, provided no prejudice is caused to the opposite party that cannot be compensated by costs. (Paras 1-13) B) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Prejudice - The trial court rejected the amendment on grounds of delay and that the amendment would change the nature of the suit. The High Court held that mere delay is not a ground to reject an amendment if it is necessary for the determination of the real controversy. The court found that the amendment did not change the nature of the suit as the original suit was for declaration and injunction, and the amendment sought possession and mesne profits based on the same property. (Paras 8-13) C) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Fraudulent Transfer - The petitioner alleged that during the pendency of the suit, the brother (respondent no.1) fraudulently transferred the suit flat to his son (respondent no.2). The court held that such subsequent events must be allowed to be pleaded to avoid multiplicity of proceedings and to enable the court to pass effective relief. (Paras 4-7)
Issue of Consideration
Whether the trial court erred in rejecting the petitioner's application for amendment of the plaint under Order VI Rule 17 of the Code of Civil Procedure, 1908, seeking to incorporate subsequent events and additional reliefs of possession and mesne profits.
Final Decision
The High Court allowed the writ petition, set aside the trial court's order dated 5th September 2015, and directed the trial court to allow the amendment subject to payment of costs of Rs. 5,000 to the respondents.
Law Points
- Amendment of plaint
- Order VI Rule 17 CPC
- cause of action
- fraudulent transfer
- mesne profits
- possession
- delay in amendment
- prejudice to opposite party
