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CASE NO.: Appeal (civil)  3007 of 2008

PETITIONER: M.C.Agrawal HUF

RESPONDENT: M/s. Sahara India & Ors

DATE OF JUDGMENT: 28/04/2008

BENCH: Tarun Chatterjee & Harjit Singh Bedi

JUDGMENT: JUDGMENT                                     O R D E R Non-Reportable  

        CIVIL APPEAL NO.3007 OF 2008 (Arising out of SLP)No.14462 of 2007)

1.      By an order dated 27th of August, 2007,  we issued notice in the present special  leave petition and granted interim stay of  all further proceedings in Suit No.M-73/2007  pending before the Additional District  Judge, Delhi. In compliance with our notice,  the respondent has entered appearance.  Counter affidavit has already been filed.  Learned counsel appearing on behalf of the  petitioner submitted that no rejoinder  affidavit is required to be filed and the  matter can be disposed of. Such being the  stand taken by the learned counsel for the  parties, we grant leave and take up the  hearing of the appeal.   

2.      This appeal relates to rejection of an  application for amendment of plaint filed at  the instance of the plaintiff/appellant in a  suit for eviction, mesne profit and for  mandatory injunction. The suit was, however,  decreed ex-parte and an application under  Order 9 Rule 13 of the Code of Civil  Procedure for setting aside the ex parte  decree was rejected by the trial court as  well as by the High Court, but the orders of  the trial court as well as of the High Court  were set aside by this Court and the suit  was restored to file. When the suit was  restored to file, the plaintiff/appellant  filed an application for amendment for  deletion of the prayer for delivery of air  tickets and for consolidating the same with  the prayer of mesne profits as under:  "Award mesne profits equivalent to  the rent payable in respect of the  premises and the value of the air  tickets payable by defendant as  determined by this Court."  

3.      Consequential amendment was also sought

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in paragraph 12 of the plaint. The trial  court declined the amendment solely on the  ground that the relief for the delivery of  air tickets was earlier declined in the ex-  parte decree and the petitioner, therefore,  could not ask indirectly what was declined  to them directly. Feeling aggrieved, the  appellant had filed a revision application  before the High Court which also affirmed  the order of the trial court. The High Court  by the impugned order while holding that the  amendment could not have been denied on the  basis of the ex-parte decree which had  already been set aside, refused the prayer  for amendment on the ground that contractual  use and occupation charges would not be  necessary for the purpose of determination  of the mesne profits. Accordingly, the order  of the trial court was affirmed and the  application for amendment of the plaint was  rejected.  

4.      Having heard the learned counsel for the  parties and after going through the plaint  as well as the application for amendment of  the plaint and the objections filed by the  respondent, we do not find any ground to  refuse the prayer of the appellant to amend  the plaint in the manner they have prayed  for. While rejecting the application for  amendment of the plaint, it was held by the  High Court that the amendment was not  necessary nor germane to the controversy  between the parties for the reason that  claim for mesne profits/damages had to be de  hors the contract between the parties. It  was further observed that measure of mesne  profits/damages would be the rental fetched  by similar situated properties in the  vicinity over the period mesne profits was  being claimed. Upon these observations, the  prayer for amendment of the plaint was  rejected. In our view, the amendment of the  plaint sought for by the plaintiff/appellant  was necessary in deciding the real  controversy between the parties. It is  always open by way of an amendment to  amalgamate the two reliefs in one suit. That  apart, at the time of allowing or refusing  to amend the plaint, it is not open for the  Court to decide the merits of the suit which  can only be gone into and decided by it at  the time of decision of the suit. The  plaintiff/appellant is entitled to plead and  prove the amount of rent and the equivalent  amount of benefit received out of the  letting out of the property to show the  contractual rent of use and occupation  charges. On the basis of the lease  agreement, it is clear that the mesne  profit/damages cannot be awarded less than  the contractual rate of use and occupation  charges. Therefore, in the event of allowing  the amendment of the plaint in the aforesaid  circumstances, the nature of the suit shall

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not be changed. Therefore, in our view,  there was no reason as to why the prayer for  amendment of the plaint should not be  allowed. In our view also, the payer for  amendment of the plaint was necessary in  order to adjudicate the real controversies  between the parties, i.e. with respect to  the quantum of the mesne profits/damages.

5.      Accordingly, we do not find any reason  why the prayer for amendment of the plaint  as prayed for by the appellant could be  refused.  

6.      For the reasons aforesaid, the impugned  orders are set aside and the application for  amendment of the plaint is allowed. The  appellant is directed to file an amended  plaint within a period of two weeks from the  date of supply of a copy of this order and  the defendant/respondent shall be entitled  to file additional written statement within  a fortnight from the date of filing an  amended plaint by the appellant.  

7.      In view of the discussions made herein  above, the impugned orders are set aside and  the appeal is allowed to the extent  indicated above. There will be no order as  to costs.