JUDGMENT
K. Ramamoorthy, J.
(1) The plaintiff has filed the above petition for the amendment of the plaint under Order 6 Rule 17 seeking leave of this Court for amending the plaint. In the first instance, the plaintiff brought for the following reliefs against the two defendants:-
“(A) a decree for declaration may be passed in favour of the Plaintiff and against the Defendants to the effect that the agreement of sale dated 13.3.1994 between the Plaintiff and the Defendants, regarding transfer of the Defendants’ right, title and interest under the agreement dated 15.10.1992 executed between them M/s lnder Pratap Singh Huf for the allotment of the 11th floor of the proposed multi-storeyed building known as ‘Narain Manzil’, 23, Barakhamba Road, New Delhi subsists between the parties to this suit;
(B) a decree for permanent injunction may be granted in favour of the Plaintiff and against the Defendants to the effect that they have no right to transfer any of their right, title and interest in the agreement dated 15.10.1992 mentioned in prayer (a) above in favour of any person other than the Plaintiff”.
(2) Tersely stated, the case of the plaintiff in the original plaint is this. That on 10.8.94 Shri S.S. Sandhu and his wife Mrs. Shiela Sandhu constituted a private trust called “Satazo Trust” for the benefit of their children and grand children. The plaintiff is a real estate agent and he was acting as agent on behalf of the trust and various associate companies of the family of Shri H.S. Sandhu. On 15.10.92, Mrs. Sumitra Chisti, Trustee of the Trust applied to one M/s Inder Pratap Singh Huf for the allotment of the entire 11th floor approximately measuring 8000 sq. ft. in the proposed multi-storeyed building ‘Narain Manzil’ at 23 Barakhamba Road, New Delhi. The transaction was finalised at particular rate. On 22.10.92, statement signed by the parties, as required under Section 269-UC of the Income-tax Act, 61 was sent to the appropriate authority. By order dated 18.12.92, the appropriate authority issued a certificate staring that it had no objection to the transfer for the apparent consideration of 3,08,00,000.00 as per the agreement dated 15.10.92.
(3) In the middle of February 1994, Shri Sandhu and the members of his family wanted to dispose of the property and they were not successful in their endeavour. Ultimately, the plaintiff agreed to purchase the entire 11th floor for a total consideration of Rs. 4,84,00,000.00 and an agreement was executed on 13.3.94. According to the plaintiff, a sum of Rs. l,50,000.00 was paid by way of cheque of 13.3.1994 to Shri H.S. Sandhu and his family and another cheque for Rs. 3,34,000.00 was paid on the same date. On 21.3.94 Mrs. Sumitra Chisti filed a statement of transfer of immovable property before the appropriate authority for the apparent consideration of Rs. 4.84 crores. On 18.5.94, the appropriate authority issued a letter that it had no objection to the transfer. Under the agreement of sale, the transaction was to be completed by the parties within a period of six months. In the meantime, prices of properties in Delhi shot up. The plaintiff had an idea of transferring his rights to his nominees as per the terms of the agreement dated 13.3.94. The defendants tried to wriggle out of the contract. The plaintiff was surprised to notice a Public Notice dated 15.7.94 in a daily called “Evening News” and he issued a counter publication on 19.7.94. It is the case of the plaintiff that Shri H.S. Sandhu came to the office of the plaintiff and threatened him and wanted the plaintiff to give it in writing that he was withdrawing from the contract and he wanted back all the documents in the possession of the plaintiff. Therefore, according to the plaintiff, he wanted to get a declaration of his rights under the 126 agreement. In para 13, he valued his suit in the following manner and paid Court fee thereon:- “The value of the suit for the purposes of Court fee and jurisdiction is as under:
Court Fee Court Fee Paid (i) For the relief of declaration that the agreement of sale dated 13.3.1994 subsists between the parties and they are bound by the same.Rs. 200.00 Rs. 20.00 (ii) For the relief of injunction : Rs. 130.00 Rs. 13.00 ___________ Total Rs. 33.00 ___________ JURISDICTION; (i) For the relief of declaration that the agreement of sale dated 13.3.1994 subsists between the parties and they are bound by the same. Rs. 4.80,00.000.00 [which is the amount of consideration under agreement] (ii) For the relief of injunction: Rs.l30.00 ___________________ Total Rs. 4,80,00,130.00 ___________________
(4) The office took the objection to the frame of the suit and expressed the view that the plaintiff must pay Court fee on the value mentioned by the plaintiff.
(5) The plaintiff thereupon had filed this petition for amendment.
(6) On 22.11.94 Swatanter Kumar, J passed the following order :-
“I had listed this matter for arguments on the maintainability of the suit and also the objection taken by the registry as noticed in the order of the Court dated 25th of August, 1994. This Court has no time left. I would consider it appropriate that the matter is listed before another Hon’ble Judge, subject to the Order of the Hon’ble Judge, Incharge of the Original side on 12th of December, 1994. The Counsel for the defendants submits that he should be directed to file the written statement, if any, after this issue is decided by the Court.”
(7) On 25.4.1995 the petition for amendment was presented. The plaintiff prayed for the impleadment of the following parties :–
“3. Shri Hardev Singh Sandhu, S/o late Shri Narain Singh Sandhu Resident of 18, Ring Road, Lajpat Nagar-IV, New Delhi-10024. Alleged Trustee of “Satazo Trust”.
4. Mrs. Shiela Sandhu Wife of Shri H.S.Sandhu Resident of 18, Ring Road Lajpat Nagar-IV, New Delhi-110024. Alleged Trust of “Satazo Trust”
5. M/s. Satazo Trust, through any of its Trustees 18, Ring Road Lajpat Nagar-IV, New Delhi-110024.
6. M/s Inder Partap Singh (HUF) through its Karta Mr. Inder Partap Singh, 23, Barakhamba Road, New Delhi-110001.”
(8) The plaintiff sought the amendment of the heading of the plaint in the following manner:- “Suit for declaration, specific performance, possession and injunction”.
(9) After the existing para 2 of the plaint, the plaintiff sought leave to add para 2.1. It is not necessary to extract the para.
(10) After the existing para 4, the plaintiff seeks leave to ad para 4.1. After existing para 5, the plaintiff seeks leave to add para 5.1. It is also not necessary to extract what is stated in para 5.1.
(11) The plaintiff sought the substitution of existing para 6 of the plaint in the manner suggested by the plaint. It is also not necessary to extract the same,
(12) The plaintiff sought substitution of para 7 by a new para.
(13) After the existing para 9 of the plaint, the plaintiff seeks leave to add the following:-
“IN fact thereafter the plaintiff realised that the defendants were denying the existence of the agreement to sell dated 13th March, 1994 (one thousand nine hundred ninety four) itself and that they were casting clouds in respect of transaction, therefore, at this stage the plaintiff filed the above noted suit for declaration and injunction in this Hon’ble Court.”
(14) In the existing para 10, the plaintiff seeks leave to add para 10.1 to 10.15.
(15) In para 10.8 the plaintiff seeks to introduce the following averments :-
“10.8 That under such circumstances the plaintiff was left with no other alternative but to issue a notice dated 22.12.1994 requiring the present defendants 1, 2, 3 and 5 giving them 15 days time to execute necessary documents failing which the plaintiff was having no other alternative but to take appropriate action against the defendants for getting the agreement dated 13.3.1994 specifically enforced through Court of law at the costs, risks and consequences of the defendants as well as others.”
(16) The plaintiff wants the Court to believe that he was ready and willing and he issued the notice dated 22.12.94 long after the defendants issued notice to him in July 1994.
(17) In place of the existing para 11, the plaintiff seeks leave to substitute a new paragraph. Then for the existing para 12, the plaintiff seeks leave to substitute a new para.
(18) The plaintiff now is willing to pay the Court fee payable.
(19) After the existing para 15 (a), the plaintiff seeks leave to add para Nos. (aa) and (b) which are in the following terms :-
“(AA)A decree of specific performance of the agreement to sell dated 13.3.1994 be passed in favour of the plaintiff and against defendants I to 6 jointly and/or severally to execute necessary documents for transfer of their right, title and interest in favour of the plaintiff and/ or his nominee(s) in respect to the complete 11 th four of Narain Manzil, 23, Barakhamba Road, New Delhi including the rights under the agreement to sell dated 15.12.1992 entered into between defendants 5 and 6. The defendants 1 to6 be also directed to hand-over peaceful and vacant possession of the entire 11th floor of Narain Manzil, 23, Barakhamba Road, New Delhi to the plaintiff and/or his nominee(s) as well directing defendant No. 6 to admit/recognize and deal with the plaintiff as the purchaser of complete 11th floor of Narain Manzil, 23, Barakhamba Road, New Delhi who has stepped into the shoes of defendant No. 5 by virtue of the agreement to sell dated 13th March, 1994. (b) A decree for permanent injunction may be granted in favour of the plaintiff and against defendants to the effect that they have no right to transfer any of their right, title or interest in the agreement dated 15.10.1992 and 13.10.1994 mentioned in the prayer (a) above in favour of any other person except the plaintiff or his nominee(s) and they be restrained from transferring their right, title or interest in favour of any other person/persons except the plaintiff.”
(20) The respondent has filed the reply denying and repudiating the claim of the petitioner/plaintiff.
(21) I heard the learned Counsel for the parties for a considerable length of time.
(22) Mr. G.N.Aggarwal, the learned Counsel for the plaintiff submitted that the plaintiff was within his rights in asking for the amendment of the plaint before the Court rejects the plaint on the ground that the Court fee as directed by the Court was not paid. He relied upon the decision of the Madras High Court reported in T.R. Govindaraja Mudaliar v. T. Saravana Mudaliar and Others Air 1949 Madras640. Mr. Aggarwal further submitted that relying upon the judgment of the Supreme Court reported in Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, for the proposition that amendment can be ordered without injustice to the other side.
(23) According to the learned Counsel, the cause of action would remain the same on the facts and circumstances of this cases and when there is no material change in the cause of action, the petitioner would be well within his rights in praying for amendment. The learned Counsel relied upon the following cases for disposition:- (i) 0m Swamp v. Badan Singh & Anr.; (it) . v. Raghu; (iii) Smt. Shyam Dulari v. Bhagwan Dass and Others;
(24) The learned Counsel further contended that under the provisions of Cpc, additional pleadings could always be filed and he relied upon the following cases: (i) , Sm. Sailabala Dassi v. Sambunath Bank and Others; (ii) , Rarndhan v. Bhanwarlal.
(25) The learned Counsel submitted that the procedural law should facilitate the dispensation of justice and should not be used to obstruct the same. He relied upon the judgment of the Supreme Court reported in M/s. Ganesh Trading Co. v. Moji Ram, which followed Panchdeo Narain Srivastava v. Km. Jyoti Sahay and Another, .
(26) The learned Counsel for the defendants submitted that the plaintiff was only acting as an agent and the defendants No. 1 and 2 had complete confidence in him and the plaintiff had committed breach of trust and he tried to take full advantage, of the kindness shown by defendants 1 and 2 to him and he had forged an agreement, brought about documents in his favour and there was no agreement for sale dated 13.3.94 between the plaintiff and the defendants 1 and 2.
(27) In para 11 of the plaint, the plaintiff has stated as under :-
“AS cloud has been cast on the rights of the plaintiff under the agreement to sell dated 13.3.94 and threats of personal injury have also been held out, it is necessary for the plaintiff to get a declaration of his rights under the said agreement. As the agreement has been repudiated, the plaintiff is relieved from his obligations to tenderer pay further amounts under the agreement till the matter is settled. It is also necessary to take permanent injunction against any further injury. Hence this suit.”
(28) According to the learned Counsel for defendants that the plaintiff himself felt that he was relieved of his obligation under alleged agreement and he was not ready and willing to perform his part of the contract and, therefore, he is not en titled in law to apply for the amendment of the plaint. It is submitted on behalf of the defendants that here is a clear admission on the part of the plaintiff that he was not obliged under the agreement to do anything because of the attitude of the defendants and the plaintiff did not about.
(29) The learned Counsel for the plaintiff, Mr. Aggarwal submitted that assuming what is stated by the plaintiff in para 11 to be an admission, in law a party can always withdraw his admission by giving justifiable explanation in law and the plaintiff in this case is justified in withdrawing what he had already stated in para 11. The learned Counsel pressed into service in support his arguments the decision of the Supreme Court in (supra). The reasoned doctrine on the scope of the power of the Court to allow amendment is that amendment cannot be claimed as a matter of right in all circumstances and is governed by judicial considerations and the Court shall exercise great caution and act with circumspection. The Courts normally follow the following principles while considering the petition for amendment :-
“(I) All amendments will be generally permissible when they are necessary for determination of the real controversy in the suit. (ii) All the same, substitution of one cause of action or the nature of the claim for another in the original plaint or change of the subject-matter of or controversy in the suit is not permissible. (iii) Introduction by amendment of inconsistent or contradictory allegations in negation of the admitted position on facts, or mutually destructive allegations of facts are also impermissible though inconsistent pleas on the admitted position can be introduced by way of amendment. (iv) In general, the amendments should not cause prejudice to the other side which cannot be compensated in costs. (v) Amendment of a claim or relief which is barred by limitation when the amendment is sought to be made should not be allowed to defeat a legal right accrued except when such consideration is outweighed by the special circumstances of the case.”
(30) The plaintiff, when he filed this suit, had grave doubts about the agreement, therefore, he wanted to establish that there was an agreement and that was his main relief. Now by the amendment he seeks to change the entire character of the suit and wants the inclusion of the relief of specific performance. Suppose I allow the amendment and if we read the plaint as it stands after the amendment, it will be seen that the plaintiff has contradicted himself in material particulars and such a course cannot at all be permitted. I am aware that the plaintiff has come forward with the amendment eight months after the institution of the suit and it cannot be said that the plaintiff is guilty of any delay in coming forward with the relief of amendment of the plaint but that is not relevant here. Having regard to the allegations in the plaint and his averments in the petition, I am notable to persuade If record to the request of the plaintiff for the amendment of the plaint. had extracted earlier. He had also not made any demand as per the terms of the contract assuming it to be true. The plaintiff is only trying to keep the litigation pending with ulterior motives. Therefore, I am impelled to reject the petition for amendment.
(32) Ia 3605/95 is dismissed. There shall be no order as to cost. S.No. 1893/94 Post the matter on 23rd of May 1996 for further proceedings.