IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : CODE OF CIVIL PROCEDURE

IA Nos. 4595/2012 & 2742/2012 in CS(OS) 2156/2007
DATE OF O R D E R : 20.07.2012

J.K. KASHYAP ..... Plaintiff

Through Mr. M. Dutta, Adv.

versus

RAJIV GUPTA AND ORS ..... Defendants

Through Mr. Abhishek Singh with Mr. Abhinav,
Advs.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. This order shall dispose of two separate applications filed by the

plaintiff.Vide IA No. 4595/2012 an application has been filed under order 6
Rule 17 CPC to seek amendment in the plaint. Vide I.A. No. 2742/2012 filed
under Order 7 Rule 14 CPC read with section 151 of CPC, the plaintiff seeks
to bring on record certain documents. Both the applications being borne out
of the same cause of action and the genesis of both of them being common,
they are being disposed by a common order.

2. Through the amendment application, the plaintiff seeks to introduce

some new facts based on his alleged meeting with Mr. Shabi-ul-Hasan S/o of
Ms. Jamila Gupta for the purpose of preparing his evidence, when Ms.
Jamila Gupta had informed the plaintiff about the exchange of certain letters
between the plaintiff and herself clearly establishing the stand of the plaintiff
in the suit that the amount of Rs. 45 lakhs is a part of total sale consideration
amount agreed between the parties to the suit. Three letters, which were
handed over by Smt. Jamila Gupta to the plaintiff are (a) original copy of the
letter dated 8.2.2005 addressed by the plaintiff to Jamila Gupta (b)
photocopy of the letter dated 11.2.2005 addressed by Jamila Gupta to the
plaintiff (c) photocopy of the letter dated 16.2.2005 addressed by Jamila
Gupta to the plaintiff. In I.A. No. 4595/2005 moved by the plaintiff under
Order 7 Rule 14 CPC the plaintiff seeks leave to place on record the said
three letters, which as per the plaintiff were not in his possession and
custody at the time of the filing of this suit or even thereafter till the same
were handed over to him by the said Jamila Gupta between 24.1.2012-
28.1.2012.

3. While arguing these applications the counsel for the plaintiff

submitted that main controversy involved between the parties hinges around
the fact that whether the said payment of Rs. 45 lakhs made by the plaintiff
to Jamila Gupta for taking possession of basement and ground floor of the
suit property was part of the total sale consideration amount of Rs. 4.80
crores or the said sum was to be paid by the plaintiff over and above the sale
consideration amount to defendants No. 1 and 2. Counsel thus submits that
the said three documents are very material in nature to adjudicate the
controversy involved between the parties and the amendment sought by the
plaintiff incorporating only those facts explaining as to how the plaintiff got
the said three letters from Smt. Jamila Gupta are merely clarificatory in
nature and the plaintiff is not introducing any new case or any new cause of
action through the said amendment. Counsel further submits that since the
said documents were delivered to him by the said lady Jamila Gupta and,
therefore the plaintiff was not in a position to file the same till the time the
same were delivered to him in the last week of January 2012. In support of
his arguments counsel for the plaintiff placed reliance on the following
judgments:-
1. Revajeetu Builders and Developers vsNarayanaswamy and Sons and
Ors.(2009) 10 SCC 84.
2. Surender Kumar Sharma vsMakhan Singh (2009) 10 SCC 626.
3. Sushil Kumar Jain vsManoj Kumar and Anr.(2009) 14 SCC 38.
4. Lakha Ram Sharma vsBalarMarkerting Private Limited (2008) 17
SCC 671.
5. RajkumarGurawara (Dead) through Lrs. vs S.KI. Sarwagi and
Company Private Limited and Anr.(2008) 14 SCC 364.

4. These Applications have been vehemently contested by the defendants.

One of the principal pleas raised by the counsel for the defendant is that in
view of the proviso of Order 6 Rule 17 of the Code of Civil Procedure, 1908,
the plaintiff cannot be permitted to amend the plaint at this stage. The
learned counsel for the defendants further submits that in the present suit the
trial has already begun and, therefore, the plaintiff would have to splash out
a very strong case in order to persuade the Court to allow the plaintiff to
bring the said three letters on record and for seeking amendment based on
the facts concerning the said three letters. Counsel further submits that
Jamila Gupta is in active camaraderie/ association with the plaintiff and,
therefore, the plaintiff is in a position to produce any such letters at any point
in time as per his convenience from Ms. Jamila Gupta. Counsel also submits
that three letters were not sent by the parties through post or other mode of
communication but they were alleged to have been personally delivered to
each other and this stand itself creates enough suspicion on the authenticity
and genuineness of the said letters. Counsel also submits that the plaintiff
has not given any sufficient or plausible reasons in both the applications for
filing the said documents at such a belated stage; therefore, both the
applications filed by the plaintiff deserve outright dismissal. In support of
his arguments counsel for the defendants placed reliance on the following
judgments:-
1. Gold Rock World Trade Ltd. vsVeejay Lakshmi Engineering Works
Ltd. (2008) 249PLR 40.
2. Revajeetu Builders and Developers vsNarayanaswamy and Sons and
Ors.(2009) 10 SCC 84.
3. Salem Advocate Bar Association, Tamil Nadu vs Union of India AIR
2005 SC 3353.
4. Vidyabai and Ors. Padmalatha and Anr. (2009) 2 SCC 409

5. I have heard learned counsel for the parties at length and given my
anxious consideration to the arguments advanced by them.

6. It is not in dispute between the parties that the matter is at the

evidence stage. Issues in the present case were framed by this Court vide
orders dated 8th August, 2011 when also this Court had directed the
consolidation of the present suit along with Suit No. 277/2007. After
framing the issues in the present suit the matter was directed to be placed
before the Joint Registrar on 21st September, 2011 for fixing the dates for
recording the cross-examination of the witnesses of the plaintiff. Vide order
dated 16th November, 2011 the Hon’ble Division Bench while disposing of
FAO(OS) No. 260-261/2011 appointed the Local Commissioner to record
the evidence of the parties on the joint request made by the parties. It was
also directed that the plaintiff shall file his evidence by way of affidavits in
the suit on or before 20th December, 2011. Pursuant to the said direction of
the Hon’ble Division Bench the plaintiff has filed his entire evidence by way
of affidavits before the Local Commissioner. The matter was fixed before
the Local Commissioner on 31.1.2012. It is thereafter, that the plaintiff had
moved these applications. It is around the same period that the plaintiff
moved an application vide I.A. No. No. 2770/2012 under Order 16 Rule 1(3)
of Civil Procedure Code 1908 in order to introduce the name of Smt. Jamila
Gupta as one of the witness in the list of witnesses as was initially filed by
the plaintiff. It would be thus seen that the plaintiff has filed these
applications much later, when already the present suit along with the other
two suits had entered the trial stage. The contention of the counsel for the
plaintiff that the matter has not yet entered the stage of trial is farce as the
plaintiff has already filed his evidence by way of affidavit and examination-
in-chief of the witnesses in the Trial has already commenced. In the
judgment of the Apex Court reported in (2009) 2 SCC 409, it has been
observed that “the date on which the issues are framed is the date of first
hearing and filing of an affidavit in lieu of examination in chief of the
witness, inour opinion, would amount to “commencement of proceedings.”
Relevant paras 11 and 12 of the same are reproduced as under:-
“11. From the order passed by the Ld. Trial Judge, it is evident that the
respondents had not been able to fulfill the said precondition. The question,
therefore, which arises for consideration is as to whether the trial had
commenced or not. In our opinion, it did. The date on which the issues are
frames is the date of the first hearing. Provisions of the Code of Civil
Procedure Code envisage taking of various steps at different stages of the
proceedings. Filing of an affidavit in lieu of the examination – in- chief of
the witness, in our opinion, would amount to “commencement of
proceedings.””
12. Although in a different context, a three judge Bench of this Court in
Union of India V. Major General Madan Lal Yadav took note of the
dictionary meaning of the terms “trial” and “commence”to opine (SCC
p.136, para 19)
“19. It would, therefore, be clear that trial means act of proving or
judicial examination or determination of the issues including its own
jurisdiction or authority in accordance with law or adjudging guilt or
innocence of the accused including all steps necessary thereto. The trial
commences with the performance of the first act or steps necessary or
essential to proceed with the trial.”
Thus it is quite manifest that the plaintiff is seeking to amend his suit after
the commencement of the trial. The proviso inserted to Order 6 Rule 17
through Civil Procedure Code (Amendment) Act, 2002 is couched in a
mandatory form and unless the conditions laid down in the said proviso are
satisfied the Court will not exercise its discretion in allowing such an
amendment by adopting a liberal approach. The Court thus has to examine
whether any case has been made out by the plaintiff, to satisfy the
inhibitions laid under order 6 Rule 17 of the Code of Civil Procedure,
1908demonstrating the exercise of due diligence on his part for not having
raised these amendments before the commencement of the trial.

7. Order 6 Rule 17 is a very important provision ingrained in C.P.C it is

pellucid that no civil suit, perhaps can complete its journey of reaching a
final destination without there being an application under Order 6 Rule 17. It
can be said by judicial experience that many a times this provision is
misused with an oblique motive to unnecessarily drag the civil proceedings.
One can trace enough law on this subject as settled by the various High
Courts and the Hon’ble Supreme Court on this single provision but recent
judgment in the case of Revajeetu Builders and Developers
vsNarayanaswamy and Sons and Ors. reported in (2009) 10 SCC 84 has
dealt with this provision more extensively elaborating the broad contours
and horizons that needs consideration while dealing with the applications for
amendment. The relevant para of the same is reproduced as under:-
“Factors to be taken into consideration while dealing with
applications for amendments:
63. On critically analyzing both the English and Indian cases, some basic
principles emerge which ought to be taken into consideration while allowing
or rejecting the application for amendment:
(1) Whether the amendment sought is imperative for proper and effective
adjudication of a case:
(2) Whether the application for amendment is bonafide or malafide;
(3) The amendment should not cause such prejudice to the other side which
cannot be compensated adequately in terms of money;
(4) Refusing amendment would in fact lead to injustice or lead to multiple
litigation;
(5) Whether the proposed amendment constitutionally or fundamentally
changes the nature and character of a case;
(6) as a general rule, the court should decline amendments if a fresh suit on
the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while
dealing with application filed under order 6 Rule 17.”
7. While setting out the said parameters the Apex Court also observed
that the said principles are only illustrative and not exhaustive and ultimately
it is the discretion of the Court to allow or disallow any amendment
depending upon the facts of each case. In the penultimate para of the said
judgment the Hon’ble Apex Court also observed that the decision on an
application under Order 6 Rule 17 CPC is very serious judicial exercise and
the same should never be undertaken in a casual manner. It was further
observed that while deciding application for amendments the Court must
not refuse the bona fide, legitimate, honest and necessary amendments and at
the same time should never permit mala fide, worthless and/or dishonest
amendments. Also, the amendments which bear the character of altering the
suit by and large, which may totally alter the character of an action should
not readily be granted, while all the necessary care should be taken to see
that injustice and prejudice of an irremediable character are not inflicted on
the opposite party under the pretence of amendment, thus one distinct cause
of action should not be substituted by another and that the subject matter of
the suit should not be changed by another.
Applying the above principles to the facts of the present case this Court
find merit in the submission of the counsel for the defendant that the
amendment now being sought by the plaintiff is not honest but with an
oblique and dishonest motive. The present suit was filed by the plaintiff on
25th October, 2007 and the letters, which the plaintiff intends to introduce
through these two applications pertains to the year 2005. It is almost after 7
years the plaintiff has sought to introduce three letters in order to mettle his
case claiming that the said sum of Rs. 45 lakhs was part of total sale
consideration amount. It is thus not mere incorporation of new facts in the
amendment application but the main object of the plaintiff is to introduce the
three letters dated 8.2.2005, 11.2.2005 and 16.2.2005 through which the
plaintiff wants to strengthen the main plea in the case. Indisputably, the
source of these letters are none other than but Smt. Jamila Gupta herself,
who is stated to have received letter dated 8.2.2005 from the plaintiff and
had also retained two photocopies of the letter dated 11.2.2005 and
16.2.2005 addressed by her to the plaintiff. This very Jamila Gupta has been
introduced as a witness not in the initial list of witnesses but in the
application filed by the plaintiff vide I.A. No. 2770 of 2012. There is no
reference of these letters found in the plaint or in the replication filed by the
plaintiff and the same are camouflaged from the source who is supporting
the case of the plaintiff. These letters were not sent through post and it has
not been explained as to how these letters were exchanged between the
plaintiff and Smt. Jamila Gupta. No plausible explanation was brought forth
by the ld. counsel for the plaintiff when he was questioned that he can get
any such letters written at any point in time from Jamila Gupta once she is
seen supporting the case of the plaintiff. To assert that the amendment
sought by the plaintiff is merely clarificatory in nature and, therefore, liberal
approach should be adopted, this argument of the counsel for the plaintiff
could hardly persuade this Court keeping in view the peculiar background of
the facts of the present case.
8. As already mentioned above the main objective of the plaintiff is to
introduce the said three letters through the present amendment application as
well as application filed by the plaintiff under Order 7 Rule 14 CPC. Under
Order 13 Rule 1 CPC it is incumbent upon both the parties to produce the
original documents before the settlement of issues in a case. Order 7 Rule 14
CPC also obligates the plaintiff to produce document upon which he has
relied upon at the time of the presentation of the plaint and if not produced at
that stage then such a document can be received in evidence only with the
leave of the Court and not otherwise. For seeking leave of the Court the
parties seeking to produce documents at a belated stage must satisfy the
Court, that the said documents were not within his knowledge earlier or
could not be produced by him at the appropriate time in spite of exercise of
due diligence. In the facts of the present case the plaintiff has not given any
reasons for not having produced the said documents at the time of the
presentation of plaint or even before the settlement of issues. The plaintiff
has also not referred to exchange of any such communication between him
and Jamila Gupta either in the plaint or in the replication. Out of the three
letters two letters were alleged to have been received by the plaintiff form
the Jamila Gupta and, therefore, it cannot be said that they were not in
possession and power of the plaintiff. While dealing with the scope of Order
7 Rule 14 CPC this Court in the case of Gold Rock World Trade Ltd. vs
Veejay Lakshmi Engineering Works Ltd. reported in (2008)149 PLR 40 held
as under:-
“Consequently , before leave of Court can be granted for receiving
documents in evidence at a belated stage, the party seeking to produce the
documents must satisfy the court that the said court that the said documents
were earlier not within Party’s knowledge or could not be produced at the
appropriate time in spite of due diligence. Conditions necessary before leave
of court can be granted have not been satisfied. It can cannot be said that the
plaintiff was not aware of the documents earlier, or that the same could not
be produced in spite of due diligence on the part of the plaintiff. As the
plaintiff was not diligent enough at that point of time, this Court is left with
no alternative but to reject its request.”
9. In the light of the aforesaid discussion this Court does not find any
merit in the said two applications as the incorporation of new facts in the
plaint and filing of the said three letters by the plaintiff through I.A. Nos.
2742/2012 and 4595/2012 are with utter dishonest and oblique motives.
Both these applications are dismissed with costs of Rs. 15,000/-.

Sd/-
KAILASH GAMBHIR, J
JULY 20, 2012