IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CR 193 of 2007. Judgment Reserved on 19.3.2008. Date of decision March 31, 2008 M/S Catchy Communications ….Petitioner/Defendant. Versus Ajay Kumar ….Respondent/Plaintiff. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 For the petitioner: Mr. G.C.Gupta, Sr. Advocate, with Ms. Benu Thakur, Advocate. For the respondent: Mr. K.D.Sood, Advocate. Dev Darshan Sud, J. This is defendant’s revision against the order of the learned trial Court allowing the application under Order 6 Rule 17 of the Code of Civil Procedure (hereafter referred to as ‘the Code’) permitting the plaintiff –respondent to amend his plaint. 1 Whether Reporters of Local Papers are allowed to see the judgment? - 2 - The plaintiff had instituted a suit in the Court of learned Civil Judge (Junior Division), Manali praying for a decree of mandatory injunction against the defendant directing that three Decorders of Sony, Setmax and HBO etc. be supplied, a decree praying that the suit be decreed as prayed for and any other relief to which the plaintiff was entitled to. An application under Order 6 Rule 17 of the Code was filed by the plaintiff at the initial stage praying that amendments as prayed may be allowed to be carried out in the plaint. This application was resisted by the petitioner on a number of grounds including the ground regarding maintainability of the suit and jurisdiction of the civil Court to try the suit. A preliminary submission was made that Court had no jurisdiction as cognizance was barred under the Telecom Regulatory Authority Act, 1997 (hereafter referred as ‘the Act’). Another application under Order 7 rule 11(d) and Section 151 of the Code was filed by the petitioner praying that the suit be rejected as the civil Court had no jurisdiction in the matter. The learned trial Court held that the amendments - 3 - sought for neither altered the relief prayed for, nor changed the nature of the suit and there was no question of prejudice as no written statement had been filed. The objections of the petitioner for grant of amendment were rejected. Learned counsel appearing for the petitioner has urged that the learned Court below has exercised jurisdiction illegally and with material irregularity in allowing the application, since the amendment as prayed for changed the nature of the suit and was not necessary for the decision of the case. I have heard learned counsel for the parties and gone through the record. Learned counsel appearing for the petitioner relied upon the judgment of the Hon’ble Supreme Court in Rajesh Kumar Aggarwal & others v. K.K.Modi & others, AIR 2006 SC 1647, holding that Order 6 Rule 17 of the Code imposes a mandatory duty upon Court to allow all amendments which are necessary for determination of real controversy between the parties. The Court held: “16. The object of the rule is that courts should try the merits of the - 4 - case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 17. Order VI Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. 19. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the - 5 - court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to subserve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court.” He submits that these principles have been reiterated by the Supreme Court in Usha Balashaheb Swami and others v. Kiran Appaso Swami and others, (2007) 5 SCC 602, holding that the principles applicable for amendment of written statement are different from those applicable to plaints. To similar effect is the decision of the Hon’ble Supreme Court in Baldev Singh and others v. Manohar Singh and another, (2006) 6 SCC 498. It was also urged that the amendment sought for was for the sole purpose of bringing the suit within the jurisdiction of the civil Court and to overcome the prohibition and bar contained in the Act. It is also submitted - 6 - that the learned Court has not found as a fact that the amendment required is necessary for the just determination of the controversy between the parties and, therefore, is against the principles as laid down by the Hon’ble Supreme Court in Rajesh Kumar Aggarwal’ s case (supra). Learned counsel appearing for the respondent has placed reliance on the decisions of the Hon’ble Supreme Court in K. Kannan vs. K.Jayalakshmi , (2004) 13 SCC 41 and Rajesh Kumar Aggarwal and others vs. K.K.Modi and others (2006) 4 SCC 385 in support of his contention that no amendment should be denied and that determination on the objection on merits can be made during the trial of the case. I do not find any substance in the submission made by the petitioner. The trial Court, holds as a fact that the trial of the suit has not even commenced and if the amendments prayed for are allowed, then substantial justice will be done to the parties and the dispute/controversy will be set at rest for all times to come. In the circumstances, it cannot be said that the court has - 7 - not held as a fact that the real controversy between the parties will not be set at rest. So far as the second objection regarding jurisdiction of the Court is concerned, it would be open to the petitioner to take this objection of inherent lack of jurisdiction in Court or statutory bar for entertaining the suit as pleaded in the written statement. This issue cannot be determined at this stage, when no written statement has been filed by the petitioner-defendant and admittedly, an application under Order 7 Rule 11 (d) of the Code of Civil Procedure is pending adjudication. In the facts and circumstances of the case, I do not find any merit in this revision which is dismissed. There shall be no order as to costs. March 31, 2008. (PC). (Dev Darshan Sud), J.