Assistant General Manager vs M/s. S.M. Industries and Others

L.N. Mittal, J.—Defendant No. 3 Assistant General Manager (1A) of Haryana State Industrial Development Corporation Limited (HSIDC) has filed this revision petition under Article 227 of the Constitution of India impugning order dated 25.9.2008 (Annexure P-2) passed by the trial Court thereby allowing application (Annexure P-1) filed by respondent No. 1 plaintiff for amendment of plaint. In the original suit, the plaintiff has sought mandatory injunction directing the defendants to pay Rs. 10 lacs as damages to the plaintiff or in the alternative, to allot industrial plot in developed industrial Estate Phase-1 Panchkula in lieu of the plot allotted to it at Barwala. The plaintiff also sought injunction restraining the defendants from resuming the industrial plot of the plaintiff. By amendment of plaint, the plaintiff wants to seek relief of recovery of Rs. 10 lacs as damages. Besides it, the plaintiff also wants to seek declarations, mandatory injunction and permanent injunction. Defendant No. 1 State of Haryana (proforma respondent No. 2) stands given up in the trial Court. Defendants No. 2 and 3 (petitioner and proforma respondent No. 3 - Managing Director, HSIDC) were ex-parte in the lower Court.

Learned trial Court vide impugned order (Annexure P-2) has allowed uncontested amendment application (Annexure P-1). Feeling aggrieved, defendant No. 3 has filed this revision petition to assail the said order.

I have heard counsel for the parties and perused the case file.

Counsel for the petitioner contended that in spite of seeking relief of recovery of Rs. 10 lacs as damages by amendment of plaint, the plaintiff has paid Court fee of Rs. 500/- only for the said relief instead of paying ad valorem Court fee on the amount of Rs. 10 lacs. It was also argued that by amendment of plaint, the plaintiff has changed the entire nature of the suit.

On the other hand, counsel for the respondent No. 1 - plaintiff contended that defendants No. 2 and 3 had filed application for setting aside ex-parte proceedings ordered against them in the suit, but the said application was dismissed by the trial Court vide order dated 13.8.2008 and therefore uncontested amendment application (Annexure P-1) has been rightly allowed by the trial Court.

I have carefully considered the rival contentions which merit acceptance. Defendants were ex-parte in the trial Court. Their application to set aside ex-parte proceedings stands dismissed by the trial Court. At the time of passing of impugned order, defendants being ex-parte were not represented in the trial Court. Consequently, amendment application (Annexure P-1) remained uncontested. Even otherwise, in the original plaint also, the plaintiff has practically claimed the relief of recovery of Rs. 10 lacs, besides other reliefs, but to avoid, payment of ad valorem Court fee, the plaintiff styled the relief in the nature of mandatory injunction. Consequently, amendment of plaint has been rightly allowed by the trial Court. Costs for permitting amendment of plaint were not imposed because defendants were ex-parte.

There is also merit in the contention of counsel for the petitioner that plaintiff has to pay ad valorem Court fee on relief of recovery of Rs. 10 lacs and therefore, proposed amendment of plaint regarding fixation of tentative Court fee of Rs. 500/- for the said relief cannot be permitted. Impugned order of the trial Court needs modification to the said extent. Resultantly, the instant revision petition is allowed partly. Impugned order (Annexure P-2) passed by the trial Court is modified. Amendment application (Annexure P-1) filed by the respondent No. 1 - plaintiff for amendment of plaint is allowed and plaintiff is permitted to make proposed amendment of plaint, subject to the condition that valuation of the suit for relief of recovery of Rs. 10 lacs shall be fixed at Rs. 10 lacs and ad valorem Court fee thereon shall be paid by the plaintiff.