ORDER
1. This revision petition u/ S. 115 of the Code of Civil Procedure (for short the Code) is directed against the order dated 25 September 1990 of Shri S. P. Garg, Sub Judge 1st Class, Delhi dismissing petitioner’s/ plaintiff (termed plaintiff hereinafter) application under Order 6 Rule 17 of the Code seeking amendment of the plaint.
2. The plaintiff, alleging to be an allottee doing business for over twelve years, filed the suit against the respondent-MCD for perpetual injunction in respect of Stall No. 117, Dewan Hall Road, Old Lajpat Rai Market, Delhi for restraining the MCD from dispossessing or demolishing the said Stall otherwise than by due process of law. The suit was instituted on 28 November 1987. Written statement on behalf of the Municipal Corporation of Delhi (termed defendant hereinafter) was filed on 3 November 1988. The defendant denied that the plaintiff was allottee or in occupation for the last twelve years or more or had any right, title or interest in the Stall in question. Instead, the plaintiff was termed as an unauthorised encroacher. On application under Order 30 Rules I & 2 of the Code, filed with the suit, the trial court issued notice with exported interim stay against his dispossession, which after hearing on merit was vacated on 5 May 1990. The plaintiff filed an appeal against the said order but the First Appellate Court dismissed the same on 15 May 1990. The plaintiff then moved an application for review under Order 47 of the Code, which as well was dismissed on 16 August 1990.
3. The plaintiff, thereafter, in the last week of August, 1990 filed an application under Order 6 Rule 17 of the Code for amending Para 1 and adding substance of Para 4 to Para 2 and making some consequential changes to plead that in fact one Amrik Singh was the tenant of the Stall in question under the Municipal Corporation, he made a will thereof in plaintiff’s favor on 3 September 1974, died on 4 March 1975, the plaintiff moved for mutation on, which was not effected, the plaintiff has thus been in possession for over twelve years and cannot but is threatened to be thrown out.
4. The application for amendment was opposed by the defendant. The trial court vide its order dated 25, September 1990 dismissed this application on the ground that (i) the said application was highly belated; (ii) the plea taken in the original plaint that he was an allottee of the Stall in dispute was entirely in contradiction with the stand in the proposed amendment and (iii) the proposed amendment even if allowed will not serve any purpose.
5. I has heard counsel for the parties. For the plaintiff it is submitted that the order refusing to grant leave to amend the plaint is in violation of the well known principles for grant of leave to amend the plaint; that the trial court has acted illegally and in any case with material irregularity while exercising its jurisdiction and as such the impugned order is liable to be set aside. In support of his contention that amendment can be allowed even at a belated stage, the learned counsel has placed reliance on a judgment of this Court in Raj Devi v. Mohd. Salim Siddiqui . Counsel for the defendant supports the order of the trial court and submits that the application for amendment has been filed to delay the disposal of the suit.
6. The scope of amendment under Order 6 Rule 17 of the Code is well known. Bona fide amendments necessary for the purpose of determining the real question in controversy between the parties should be allowed, how so ever negligent the first omission and how delayed the proposed amendment, if the opposite party can be compensated with costs or other terms to be imposed in the order. Conversely, amendment should be refused where it is not, necessary for the purposes of determining the real question in controversy between the parties; is merely technical or useless or of no substance or where the plaintiff’s suit will be wholly displaced or it would take away the legal right which has accrued to the defendant by lapse of time or it would introduce a totally new and inconsistent case; and the application is made at a late stage of the proceedings or the application for amendment is not made in good faith.
7. Having considered the matter thoughtfully, I am of the view that the stand now sought to be taken is not totally new or inconsistent or contradictory or useless Though the name of the deceased Amrik Singh as “the predecessor in interest of the plaintiff” in occupation of the Stall (in lieu of which the site in question is stated as allotted to him) does not figure in the original plaint, the plea that there was someone else in occupation was in para 4 of the plaint, who is stated to be a tenant of the defendant since 1948-49 and which stall was demolished in 1954. Thus the proposed amendment is motivated, sought to provide some missing link to procure interim stay is no good ground to disallow it. The grant or refusal of the relief depends on well settled principles. It is a separate issue, which does not call for com at this stage proposed amendment appears to be clarify showing how the plaintiff became an allottee of the stall. It is true that the amendment is sought at a late stage and is much belated but that by itself is no ground to disallow the amendment. In the interest of justice and to avoid multiplicity of proceedings and uncalled for delay in the final adjudication of the controversy, the amendment, I feel, should be allowed.
8. In view of the above, the impugned order of the trial court, disallowing amendment, is set aside. The plaintiff’s application under Order 6 Rule 17 of the Code is allowed subject to payment of Rs.3000/- (Rupees three thousand) as costs. Costs being conditional. Half of the said costs shall be payable to the defendant and the remaining half to Indian Council of Legal Aid & Advice, Chamber No. 3, Lawyers Chambers, Delhi High Court, New Delhi within thirty days from the date of this order. The plaintiff in the trial court will produce the deposit receipt on 23 March 1992 along with the amended plaint with spare copy to be delivered to the defendant on the same day, failing which this revision petition shall stand dismissed.
9. On the plaintiff complying with the above, the defendant would file its written statement to the amended plaint on 27 April 1992. Parties would produce their respective documents before the trial court on 15 May 1992 and admit/deny the same. The learned trial court would then frame issues within a week or soon after and put the parties to trial. The suit will be disposed of as expeditiously as possible, preferably within one year.
10 .Order accordingly.