Murari Mohan Kejriwal & Anr. vs Ramesh

This is an application for amendment of plaint filed by the plaintiff no. 2.

The defendants have filed affidavit-in-opposition against the aforesaid application and, subsequently, affidavit-in-reply was also filed by the plaintiff.

By filing the application, it is stated that original plaintiff no. 1 has expired during the pendency of the suit leaving hehind the surviving plaintiff as his legal heir. Therefore, the name of original plaintiff no. 1, Murari Mohan Kejriwal (since deceased) may be deleted from the plaint.

Learned Advocate for the defendants has not raised any objection against the above prayer and, accordingly, the prayer deserves favourable considerations by the Court.

The plaintiff has also prayed for consequential amendment of the plaint deleting the identification number of the present sole plaintiff as it was stated in the original plaint as plaintiff no. 2. The plaintiff has also prayed for recording the words "since deceased" after the averments in the plaint as regards the original plaintiff no. 1. Learned Advocate for the defendants have also not raised objection against such amendment because such amendment is consequential to the death and deletion of the name of the original plaintiff no. 1.

By way of the instant application for amendment, the plaintiff has also sought for introducing certain facts regarding a proceeding disposed of by the company law board by its order dated 14th May, 2013 with regard to 700 number of equity shares of Shri Hanuman Cotton Mills. Prayer portion of the original plaint is also sought to be amended by the plaintiff by introducing the name of Shri Hanuman Cotton Mills as the owner of 700 shares which were allegedly transferred by defendant no. 1 in faviour of defendant no. 2.

It is submitted by the learned Advocate for the plaintiff referring to the decisions of the Hon''ble Supreme Court in the following cases:-

1) (1974) Supreme Court Cases 675 : Shikharchand Jain vs. Digamber Jain Praband Karini Sabha

2) (1984) 3 Supreme Court Cases 352 : Vineet Kumar vs. Mangal Sain Wadheera

3) (2006) 4 Supreme Court Cases385 : Rajesh Kumar Aggarwal and Others vs. K.K. Modi and Others

that a subsequent event can be brought in record by way of amendment of plaint and it is open to a Court to take notice of such events which had happened after the institution of the suit and uphold the relief to the parties in the changed circumstances where it is shown that the relief claimed originally as (1) by reason of subsequent changed circumstances become in appropriate or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation or (3) to do complete justice between the parties.

According to the learned Advocate for the plaintiff, the proposed amendment is necessary due to the changed circumstances because the decision of the company law board in respect of 700 shares in question came up only in the year 2013, i.e. well after the institution of the suit. It is also necessary to do complete justice between the parties. Learned Advocate for the plaintiff further submits that an introduction of the proposed amendment does not constitute an addition of a new cause of action. Cause of action with regard to the ownership and disbursment of shares in question accrued prior to the date of institution of the suit. By way of amendment, the plaintiff only wants to introduce the name of Hanuman Cotton Mills in prayer (a) of the plaint for the purpose of clarity. All other prayers proposed to be amended and consequential in nature.

Learned Advocate for the defendants has raised objection in course of his submissions with regard to the amendment of prayer portions only. It is submitted by him that by way of introduction of the name of Hanuman Cotton Mills in prayer (a) of the plaint, the nature of the suit will be changed. He submits that in the plaint the original prayer (a) was stated as hereunder:-

Declaration that the sale of 700 shares by the defendant no. 1 to defendant no. 2, his son was fraudulent, illegal, nullity and void and the plaintiff avoided the same.

The plaintiff has proposed to introduce the name of Hanuman Cotton Mills as the owner of the said shares. The said fact was never stated in the plaint. Moreover, the proposed amendment, if allowed, relates back from the date of institution of the suit. In such case, the defendants shall be prejudiced in raising the question of limitation at the time of final hearing of the suit.

However, the learned Advocate for the defendants is fair enough to submit that the law at this point has substantially been modified and even if the proposed amendment is barred by limitation, such amendment is allowed with a direction that the amended pleadings shall be operative from the date of the application and not from the date of presentation and admission of the suit. It is submitted by the learned Advocate for the defendants that if on such terms and conditions the prayer for amendment is allowed, they have no objection.

Lastly, it is submitted by the learned Advocate for the defendants that the instant suit was filed in representative capacity under Order 1 Rule 8 of the Code of Civil Procedure. Therefore, it is the bounden duty of the plaintiff to show publication notice after the leave under Order 1 Rule 8 of the Code was granted.

It is pointed out by the learned Advocate for the plaintiff that in annexures 'A' and 'B' at pages 10 and 11 of the affidavit-in-reply the plaintiff has produced the copy of the paper publication. On this, learned Advocate for the defendants has pointed out that in annexures 'A' and 'B' are not the photostat copies of the newspaper and the name of the newspaper was written by hand.

Having heard the learned Advocates for the parties and on careful consideration of entire materials on record, this Court is of the view that the consequential amendments on the death and deletion of the original plaintiff no. 1 deserves favourable considerable by this Court.

The only question that requests consideration is as to whether the proposed amendment is directed to be operative from the date of filing of the application or from the date of institution of the suit.

On perusal of the original plaint and specially paragraph 29 of the concise statement at page 42 of the instant application for amendment of plaint, it is found that in the original plaint it was stated that 700 shares in question was in the capital of M/s. Shri Hanuman Cotton Mills Ltd. It is also stated that the said shares of Hanuman Cotton Mills Ltd. were held by the defendant no. 5, Shri Hanuman Foundry and Engineering Company Limited. Allegation against the defendants is that the defendant no. 1 illegally transferred the said shares held by defendant no. 5 in favour of defendant no. 2. Therefore, in the prayer portion though the name of Hanuman Cotton Mills Ltd. was not recorded, in the body of the concise statement and the plaint reference of Hanuman Cotton Mills Ltd. as the owner of the shares was clearly mentioned. In view of such matter, if the proposed amendment is allowed from the date of institution of the suit, this will not change the nature and character of the original suit. The defendants shall have the liberty always to agitate the issue of limitation at the time of final hearing of the suit because the question of limitation is an issue of both fact and law.

For the reasons stated above, the application for amendment of plaint is allowed.

The department is directed to record the proposed amendments in the original plaint within four weeks from date. The plaintiff is directed to supply a copy of the amended plaint to the learned Advocate for the defendants within two weeks from effecting the amendment and the defendants are at liberty to file additional written statement within three weeks thereafter.

Let the suit go out of the list with liberty to mention.