HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. : 174 of 2010 Decided on: 9.12.2010 S.S. Zogta ……… Petitioner/defendant. Versus Dr.Mukand Lal ………Respondent/plaintiff. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the petitioner: Mr.Anup Rattan, Advocate. For the respondent: Mr.Satyan Vaidya, Advocate. V.K. Ahuja, J.(Oral): Present petition under Article 227 of the Constitution of India has been filed by the petitioner/defendant against the order passed by the learned District Judge, Shimla, whereby application under Order 6 Rule 17 read with Section 151 CPC for the amendment of the plaint filed by the respondent/plaintiff was allowed. Being aggrieved, the petitioner has filed the present petition. 2. I have heard the learned counsel for the parties and have gone through the record of the case. 3. The brief facts of the case are that the respondent/plaintiff had filed a suit for recovery of ` 15.00 lacs before this Court as against the petitioner, who is the defendant in the case, which case was later on assigned to the learned District Judge on enhancement of pecuniary jurisdiction. The case was pending before the learned trial Court and during the pendency of the same, the respondent/plaintiff filed the application under Order 6 Rule 17 CPC, as detailed above, for the amendment of the plaint - 2 - praying that he wants to amend the relief claiming ` 25.00 lacs as compensation. The ground taken was that he had no money to pay court fee and, therefore, he had restricted his claim to ` 15.00 lacs at the time of filing of the suit, but now he wants to raise the claim for compensation to the extent of Rs.25.00 lacs. 4. The application has been strongly opposed by the learned counsel for the petitioner/defendant that it was malafide and had been filed so that the case can be tried before this Court only. Reliance has been placed upon the decision of the Apex Court in Revajeetu Builders and Developers versus Narayanaswamy and Sons and others, (2009) 10 Supreme Court Cases 84. Their Lordships had considered the provisions of Order 6 Rule 17 CPC and had held in paras 62 and 63 as under: “62. The purpose of imposing costs is to: (a) discourage mala fide amendments designed to delay the legal proceedings; (b) compensate the other party for the delay and the inconvenience caused; (c) compensate the other party for avoidable expenses on the litigation which had to be incurred by the opposite party for opposing the amendment; and (d) to send a clear message that the parties have to be careful while drafting the original pleadings. 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: - 3 - (1) Whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (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 the case; and (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. These are only illustrative and no exhaustive.” 5. It is clear that this point had been considered by the learned trial Court that the plea has been taken by the applicant for amending the plaint that he had no sufficient money to pay court fee and accordingly he restricted his claim to `15.00 lacs, which he now wants to enhance to `25.00 lacs. The case is at the state of evidence of the defendant, which has not started as yet, though the evidence of the plaintiff had already been closed. 6. Keeping in view the fact that the case is to be tried by the learned trial Court at Shimla itself or by this Court at Shimla, which will not cause harassment to the petitioner and he can duly be compensated in case the plaintiff leads fresh evidence to prove his case after amending the plaint. The impugned order, therefore, does not - 4 - suffer from any illegality and is liable to be affirmed. However, the application for amendment allowed by the learned trial Court shall be deemed to have been allowed subject to payment of `2,500/- as costs, which are to be paid to the petitioner/defendant by the respondent/plaintiff for incurring expenses for producing further evidence or cross examining the witnesses of the plaintiff. 7. In view of the above discussion, the petition is dismissed. The parties are directed to appear before the learned trial Court on the date already fixed by the learned trial Court. The Registry to send the record of the case to the learned trial Court alongwith a copy of this judgment forthwith. The petition stands disposed of accordingly, so also the pending application(s), if any. December 9, 2010. (V.K. Ahuja), (tilak) Judge