Satyanarayan Gangaram Gunnal v. Commissioner, Pune Municipal Corporation & Ors.

Judgment

1.Rule. Rule made returnable forthwith, and, with the consent of thelearned Counsel for the parties, heard finally. 2.By this Petition under Article 227 of the Constitution of India, thePetitioner assails the legality, propriety and correctness of the order dated 4July 2025 passed by the learned Civil Judge, Pune, whereby the substantivepart of the prayer for amendment in the plaint in SCS No.1467 of 2023instituted by the Petitioner, came to be rejected. 3.Shorn of unnecessary details, the background facts can be stated, asunder : 3.1The Petitioner claimed that he was in the occupation of two rooms,admeasuring 300 sq.ft. (the demised premises) in an old house, situated atSSP 1/26

wp 12605 of 2025.docCTS No.1164, Nana Peth, Pune (the suit premises). There were in all sixtenants in the various portions of the demised premises. Late SadashivRajaram Mithapelli was the original landlord. After the demise of the originallandlord, Defendant Nos.4 to 9 became the landlord and the owner of thedemised premises. Defendant No.3, a partnership firm, which is engaged inthe business of builders and developers, undertook the development of thesuit premises. Multiple Development Agreements were executed in favour ofDefendant No.3 by the owners of the suit premises. 3.2The Plaintiff claimed, Defendant No.3 also approached the Plaintiff withan offer to provide 600 sq.ft. carpet area, which was double the area of thedemised premises, without any monetary consideration, in lieu of thesurrender of the demised premises to the Plaintiff. Defendant No.3 alsoagreed to provide transit rent @ Rs.10,000/- per month, from the date ofdelivery of the possession of the demised premises till the completion of thenew building. 3.3Accordingly, on 30 November 2021, a Memorandum of Understanding(MOU) came to be executed between the Plaintiff and Defendant No.3,incorporating all the aforesaid terms. It is the claim of the Plaintiff thatDefendant No.3 reneged from its promises. Upon demand of the transit rent,as agreed, Vishal G. Dhanwade – Defendant No.3(a) flatly refused to pay thetransit rent and asserted that a residential unit of 330 sq.ft. only, would beSSP 2/26 wp 12605 of 2025.docprovided to the Plaintiff and if the Plaintiff wanted more area, he should payan amount of Rs.32 Lakhs. 3.4It further transpired that, Defendant No.3 had changed the pages of theMOU and forged the said MOU by replacing page Nos.3 and 4. Thus,asserting that the MOU dated 30 November 2021, propounded by DefendantNo.3 was forged and fabricated and on the basis of false and forgeddocuments, Defendant No.3 had obtained the permission for development, farin excess of the entitlement for development, the Plaintiff prayed fordeclaration that the building permission obtained by Defendant No.3 fromDefendant Nos.1 and 2 was illegal, null and void, and not binding on thePlaintiff as it was based on false and forged documents and deliberatemisrepresentation. The consequential reliefs of injunction to restrainDefendant No.3 from carrying out further construction and recovery of thearrears of transit rent @ 10,000/- p.m. along with interest, and compensationof Rs.3 Lakhs, were also sought3.5After the institution of the suit, it appears that the Plaintiff filed anapplication under Order XXIII Rule 1 (3) of the Code of Civil Procedure, 1908,seeking permission to withdraw the suit with liberty to file a fresh suit. By anorder dated 28 November 2024, the said application came to be rejectedopining, inter alia, that the Plaintiff could seek additional area and alternativeprayer for specific performance of the purported MOU by filing an applicationSSP 3/26 wp 12605 of 2025.docfor amendment.3.6Thereupon, the Plaintiff took out instant application for amendment inthe plaint seeking, inter alia, the prayer for specific performance of thepurported MOU and a direction to Defendant No.3 to execute a registereddeed, providing 600 sq.ft. flat / residential unit as per the MOU dated 30November 2021 in the newly constructed building. The Plaintiff also soughtto delete the earlier prayers of declaration that the development permissionwas obtained on the basis of false and forged documents; the MOU dated 30November 2021 was illegal, null and void and the relief of perpetual injunctionto restrain Defendant No.3 from carrying out construction pursuant to thedevelopment agreement granted by Defendant Nos.1 and 2. Certainincidental and consequential amendments were also sought.3.7The application was resisted by Defendant Nos.3(a) to 3(c).3.8By the impugned order, the learned Civil Judge was persuaded to partlyallow the application for amendment, only to the extent of the amendmentproposed in the title clause, para No.1B, and line No.2 of para 13. Rest of theproposed amendment was rejected.3.9The learned Civil Judge was of the view that, by the proposedamendment, the Plaintiff was seeking to substitute the relief of cancellation ofthe MOU with the relief of specific performance of the very same MOU, quawhich a declaration was initially sought that it was forged and fabricated. TheSSP 4/26 wp 12605 of 2025.docprayers proposed to be incorporated by way of amendment were inconsistentwith the original prayers. In substance, the Plaintiff was proposing to convertthe original suit for declaration, perpetual injunction and damages into one forspecific performance of the MOU. It was impermissible to permit suchamendment as it would completely alter the nature and character of the suit.Thus, the learned Civil Judge, Pune, was persuaded to partly allow theapplication only with regard to the change in the description of the party –Defendants and the assertions / reliefs which flowed from the originalpleadings.3.10Being aggrieved, the Plaintiff has invoked the writ jurisdiction.4.Respondent Nos.4 to 7 have filed an affidavit in reply opposing thePetition. 5.I have heard Mr. Niranjan Mogre, learned Counsel for the Petitioner, Mr.R.M.Pethe, learned Counsel for Respondent Nos.1 to 3 and Ms. LalitaPanchakshari, learned Counsel for Respondent Nos.4 to 7, at some length.With the assistance of the learned Counsel for the parties, I have alsoperused the material on record, including the averments in the original plaint,changes sought to be introduced by way of proposed amendment and theimpugned order. 6.Mr. Mogre, learned Counsel for the Petitioner, submitted that, thelearned Civil Judge has completely misconstrued the nature of the Plaintiff’sSSP 5/26 wp 12605 of 2025.docclaim. In essence, Mr. Mogre would urge, the Plaintiff has been pursuing hisrights in the capacity of the tenant of the demised premises, which accrueupon the redevelopment of the suit premises. The learned Civil Judge hasapproached the application for amendment in the plaint from an incorrectperspective. Indeed, the Plaintiff was proposing to seek enforcement ofcontractual obligations of Defendant No.3 to deliver the possession of 600sq.ft. residential unit and the transit rent. However, that did not imply that thePlaintiff was completely altering the nature of the suit and the Plaintiff has setup a new cause of action. The proposed amendment, Mr. Mogre would urge,has its foundation in the pleadings in the unamended plaint. Thus, thelearned Civil judge could not have rejected the application for amendment inthe plaint at a pre-trial stage. 7.As a second limb of the submission, Mr. Mogre would urge, the trialCourt, on the one hand, did not permit the Plaintiff to withdraw the suit withliberty to institute a fresh suit on the same cause of action under Order XXIIIRule 1(3) of the Code, while observing that the Plaintiff could incorporateadditional pleadings in support of the claim for 600 sq.ft. area and additionalor alternative prayer for specific performance of MOU by moving anapplication for amendment in the plaint, and, on the other hand, the Plaintiff’sapplication seeking amendment in the plaint, came to be rejected byobserving that the proposed amendment would materially alter the nature ofSSP 6/26 wp 12605 of 2025.docthe suit. If the proposed amendment is not allowed, the Plaintiff would berendered remediless, submitted Mr. Mogre. 8.Mr. Pethe, learned Counsel for Respondent Nos.1 to 3 supported theimpugned order. 9.Ms. Panchakshari, learned Counsel for Respondent Nos.4 to 7 alsosupported the impugned order. It was submitted that the Petitioner, with aview to wriggle out of the situation that arose on account of filing of anapplication under Order VII Rule 11 of the Code for the rejection of the plaint,the Plaintiff initially filed an application for withdrawal of the suit, with liberty tofile a fresh suit and upon the same being rejected, sought amendment in theplaint. The proposed amendment alters the character of the suit completely.Since the Petitioner – Plaintiff under the guise of amendment intends toconvert the suit for declaration and injunction into one for specificperformance of the contract by setting up the terms which are not borne outby the MOU, the learned Civil Judge has not committed any error in rejectingthe application for amendment, seeking wholesome conversion of the suit,submitted Ms. Panchakshari. 10.To start with the uncontroverted facts. The jural relationship betweenthe Plaintiff and Defendant No.4 to 9 is not in dispute. The Plaintiff claims tobe a tenant in respect of the two rooms situated in the suit premises, albeitthere is a controversy regarding the area of those two rooms. Nor is it inSSP 7/26 wp 12605 of 2025.docdispute that Defendant Nos.4 to 9 – landlord and owners of the suit premises,have executed Development Agreements in favour of Defendant No.3 firm, fordevelopment of the suit premises. Indisputably, Defendant No.3 made anoffer to the Plaintiff and the latter has vacated the demised premises. On thebasis of the development agreement executed by the landlord and owners,and the subsequent developments, Defendant No.3 has obtained permissionfor the development from the planning authority – represented by DefendantNos.1 and 2. 11.The Plaintiff claimed that, he had also entered into a MOU withDefendant No.3 on 30 November 2021. The said instrument remained in thecustody of Defendant No.3 only. It is the case of the Plaintiff that DefendantNo.3 had initially agreed to provide 600 sq.ft. Carpet residential unit and, upondelivery of the possession of the demised premises, Defendant No.3 wouldpay transit rent @ Rs.10,000/- per month. Defendant No.3 reneged from thesaid promise. It further transpired that the Defendant No.3 had forged pageNos.3 and 4 of the said MOU on which the aforesaid terms were incorporatedand the Plaintiff has put his signatures. Thus, on the basis of the forged andfabricated MOU, Defendant No.3 professed to deprive the Plaintiff of thelarger area upon redevelopment, and the transit rent. 12.With the aforesaid version, in the original plaint, the Plaintiff sought adeclaration that Defendant No.3 has obtained building permission fromSSP 8/26 wp 12605 of 2025.docDefendant Nos.1 and 2 on the basis of the false and forged documents, thebuilding permission was illegal, and, thus, Defendant No.3 be restrained fromcarrying out construction over the suit premises on the basis of the sanctionedplan so obtained. The Plaintiff has also sought declaration that DefendantNo.3 had obtained MOU dated 30 November 2021 by practicing fraud on thePlaintiff. The said MOU dated 30 November 2021 was void, ab initio and didnot bind the rights of the Plaintiff. In addition, the Plaintiff sought arrears oftransit rent and compensation of Rs.3 Lakhs. 13.In order to appreciate the controversy in a correct perspective, it maybe apposite to extract the pleadings in the original plaint, proposedamendment and the decision thereon by the trial Court. They read as under :Sr. No.Para of plaintOriginal pleading Amendment soughtAllowed /Rejected1Title Clause (DefendantNo.1)The suit was filednaming “ek- vk;qDr”(Hon. Commissioner)as Defendant No.1directly, withoutspecifying mode ofservice ofsummons/notice onPune MunicipalCorporation.Deletion of the words“ek- vk;qDr” andaddition of the words“(Summons/notice to beserved upon Hon.Commissioner, PuneMunicipal Corporation)”in the title clause, so asto correct thenomenclature to PuneMunicipal Corporationthrough Commissioner. Allowed2Title clause(DefendantNo.2)Defendant No.2 wasdescribed as “ek-dk;Zdkjh vfHk;ark”(Executive Engineer),without furtherAddition of the words“rFkk in funsZf’krvf/kdkjh” (and theOfficer holding the saidPost) after the wordsAllowedSSP 9/26 wp 12605 of 2025.docdesignation or mode ofservice.“ek- dk;Zdkjh vfHk;ark”and addition ofsummons / noticeservice wording. 3Para 1B (Line3)The plaint pleaded thatthe plaintiff was tenantin two rooms of 300sq.ft. In the suitproperty, (withoutspecifying that eachroom was 300 sq.ft.And total area was 600sq.ft.)Addition of the words“each” (izR;sdh) after“02 rooms” (02[kksY;k ;kalh) andaddition of the words“total 600 sq.ft.” (,dw.k600 pkS-QqV) after “300sq.ft.” (300 pkS-QqV) inline 3 of para 1B.Allowed4Para 13 (Line2) Para 13 referred to theMOU dated30.11.2021 andalleged that certainpages were replaced /substituted byDefendant No.3, butdid not specificallyidentify which pagenumbers were falselyreplaced.Addition of the words“page nos.03 and 04(dza-03 o 04) after theword “pages” (ikus) inline 2 of para 13, tospecifically identify thepages allegedlyreplaced by DefendantNo.3.Allowed5Para 12 (Lines12-13) Para 12 contained thepleading that theconstruction plan andall permissions wereprepared by DefendantNo.3 on the basis offalse and fabricatedinformation, whichwere essentiallyunlawful. Deletion of the entireoriginal pleading inPara 12 (lines 12-13)referring to preparationof construction plan onfalse information and itsillegality.Rejected6Para 13 (Line 7Onwards)Para 13 containedpleading that falseproposal / submissionwas made andconstruction plan /permissions obtainedunlawfully, causingloss; challenged theMOU and the illegalDeletion of original textand substitution withnew averment thatDefendant No.3showed excess tenantsto obtain extra FSI,illegally obtainedconstructionpermission, and,RejectedSSP 10/26 wp 12605 of 2025.docconstruction. commenced illegalconstruction on theproperty. 7Para 14 (Line5)Para 13 pleaded thatthe violationscommitted wereessentially lawful(“mYy?kau d:udsysY;k rs csdk;ns’khjvkgsr”).Deletion of the existingtext and the substitutionwith the averment thatthe terms andcondtiions of the MOUhave “not beencomplied with at all”(rarksrar ikyu dsysysukgh)Rejected8Para 15 (Line4)Para 15 contained theoriginal pleading aboutillegal constructionundertaken on the suitproperty aftermisrepresenting factsbefore the authorityand obtaining unlawfulpermissions.Deletion of the originaltext and substitutionwith an extensive newaverment thatDefendant No.3obtained full FSIillegally, failed to give600 sq.ft. Carpet flat asper MOU dated30.11.2021 as well astransit rent w.e.f.01.12.2021 @Rs.10,000/- p. m. andthat Defendant No.3was obligated underMOU to give 600 sq.ft.Carpet flat, failed todeliver the same, andplaintiff is entitled totransit rent ofRs.10,000/- p.m. fromdate of filing till filing ofthe suit, totallingRs.1,90,000/- with 12%interest = 2,18,500/-and from date of filing,Defendant No.3 is liableto further payRs.10,000/- per monthtill delivery, and thepages 3 and 4 of theMOU were replaced /RejectedSSP 11/26 wp 12605 of 2025.docfabricated. 9Para 16 (line 9onwards)Para 16 contained theoriginal avermentcontaining theapprehension thatDefendant No.3 maynot execute registereddeed with Plaintiff andmay create third partyrights over all theresidential flats.Addition of a newaverment in Para 16stating that the Plaintiffis entitled to have aregistered deedexecuted by DefendantNo.3 for 600 sq.ft.(carpet) flat/residentialgala, and should keepone flat of 600 sq.ft.Carpet area availablefor the Plaintiff, and forthat Plaintiff isconstrained to file thesuit for permanent andtemporary injunctionRejected10Prayer Clause1Original Prayer Clause1 : “oknh ;kapk vtZ[kpkZlg eatwj djkok” -prayer that thePlaintiff’s applicationbe allowed with costs.Further addition soughtin the prayer fordirection to DefendantNo.3 to execute aregistered deed forproviding 600 sq.ft.(carpet) flat / residentialgala to Plaintiff as perMOU dated 30.11.2021in the newlyconstructed building infavour of Plaintiff. Rejected.11Prayer Clause2Original Prayer Clause2 : Prayer fordeclaration that alldevelopmentpermissions obtainedfrom Defendant Nos.1and 2 on the basis offalse documents bedeclared illegal.In the 4th line, the textafter “permission is”should be deleted, andinstead the text “is notas per the provisions inthe UnitifedDevelopment Controland PromotionRegulations, 2020,such declaration begranted.” should bepermitted to beincluded.Rejected12Prayer Clause3Original prayer Clause3: Prayer forDeletion of originalPrayer Clause 3 andRejectedSSP 12/26 wp 12605 of 2025.docpermanent injunctionagainst DefendantNo.3 restraining themfrom proceeding withconstruction on thesuit property on thebasis of the illegalconstructionpermissions; substitution with prayerfor direction toDefendant No.3 to keepavailable 600 sq.ft.(carpet) flat / residentialgala for the Plaintiff,and for permanent andtemporary injunctionrestraining DefendantNo.3 from creatingthird-party interest inrespect thereof.13Prayer Clause5Original Prayer Clause5 : Prayer for adeclaration that theMOU dated30.11.2021 executedby Plaintiff withDefendant No.3 isfalse, fabricated,forged and not bindingon the Plaintiff, being afraudulent document.Deletion of originalPrayer Clause 5 andsubstitution with prayerfor a declaration thatpages 03 and 04 of theMOU dated 30.11.2021are forged, fabricatedand not binding on thePlaintiff.Rejected14Prayer Clause6(New/Additional)Prayer seeking arrearsof transit rent till filingof suit with interest.(There was no prayerfor further direction toDefendant No.3 to paytransit rent @ Rs10000/- p.m. from thefiling of suit till deliveryof flat).Addition of a newPrayer Clause 6seeking direction toDefendant No.3 to payRs.10,000/- per monthas transit rent from thedate of filing of the suituntil delivery of the 600sq.ft. (carpet) flat /residential gala to thePlaintiff.Rejected.14.The learned Civil Judge was of the view that the proposed amendmentwhich has been rejected, would completely alter the nature and character ofthe suit and amount to conversion of a suit for declaration and perpetualinjunction into one for specific performance of the agreement, which theSSP 13/26 wp 12605 of 2025.docPlaintiff alleged was false and forged by Defendant No.3. 15.Whether the aforesaid approach of the learned Civil Judge isjustifiable ? It is trite, all amendments which are necessary for thedetermination of real controversy between the parties are required to beallowed. There are two over-arching considerations. First, whether theproposed amendment is necessary for the determination of the realcontroversy between the parties, and, second, whether the proposedamendment has the potentiality to cause such prejudice to the adversary thatit cannot be compensated. The question whether the proposed amendmentmaterially alters the nature and character of the suit and whether the reliefclaimed by way of proposed amendment would be barred by law of limitation,also significantly bear upon the determination. The stage of the proceeding atwhich amendment is sought, especially in view of the insertion of the provisoto Order VI Rule 17 of the Code, assumes significance. 16.Ordinarily, all pre-trial amendments which are necessary fordetermination of the real question in controversy between the parties arerequired to be permitted, in the absence of potentiality of grave prejudice tothe adversary. At a pre-trial stage, the Court is expected to adopt a little moreliberal approach. The discretion to permit amendment in the pleading is,however, required to be exercised in a judicious manner and to promote thecause of justice. The principle that the procedure is a handmaid of justice andSSP 14/26 wp 12605 of 2025.docthus, it should not be allowed to score a march over substantive justice alsoinforms the decision. 17.In the case of Pirgonda Hongonda Patil V/s. Kalgonda ShidgondaPatil1, the Supreme Court enunciated the consideration which ought to haveweighed while deciding amendment in the pleading. It was enunciated thatthe ultimate test is, can the amendment be allowed without injustice to theother side or can it not ? The relevant observations in para No.10 read asunder : “10…..All amendments ought to be allowed which satisfy thetwo conditions (a) of not working injustice to the other side,and (b) of being necessary for the purpose of determiningthe real questions in controversy between the parties............but I refrain from citing further authorities, as, in my opinion,they all lay down precisely the same doctrine. That doctrine,as I understand it, is that amendments should be refusedonly where the other party cannot be placed in the sameposition as if the pleading had been originally correct, but theamendment would cause him an injury which could not becompensated in costs. It is merely a particular case of thisgeneral rule that where a plaintiff seeks to amend by settingup a fresh claim in respect of a cause of action which sincethe institution of the suit had become barred by limitation, theamendment must be refused; to allow it would be to causethe defendant an injury which could not be compensated incosts by depriving him of a good defence to the claim. Theultimate test therefore still remains the same: can the1AIR 1957 SC 363SSP 15/26 wp 12605 of 2025.docamendment be allowed without injustice to the other side, orcan it not ?"18.In the case of M/s. Ganesh Trading Co. V/s. Moji Ram2, the principleswere further enunciated, as under : “4.It is clear from the foregoing summary of the mainrules of pleadings that provisions for the amendment ofpleadings, subject to such terms as to costs and giving of allparties concerned necessary opportunities to meet exactsituations resulting from amendments, are intended forpromoting the ends of justice and not for defeating them. Evenif a party or its counsel is inefficient in setting out its caseinitially the shortcoming can certainly be removed generally byappropriate steps taken by a party which must no doubt paycosts for the inconvenience or expense caused to the otherside from its omissions. The error is not incapable of beingrectified so long as remedial steps do not unjustifiably injurerights accrued.” (emphasis supplied) 19.In the instant case, the thrust of the submission on behalf of theDefendants, which found favour with the trial Court, was that the proposedamendment would alter the nature and character of the suit inexorably andwould virtually amount to substitution of one cause of action for another andconversion of the suit from that of declaration and injunction to that of specificperformance. 20.Undoubtedly, a party is not free to take mutually destructive pleas.2AIR 1978 SC 484SSP 16/26 wp 12605 of 2025.docThough a party is entitled to take inconsistent pleas, yet, if it could bedemonstrated that the proposed amendment, in a sense, works out theretribution of the pleadings in the original plaint, then the Court may bejustified in declining to grant such amendment. However, the mereinconsistency in the averments in the unamended plaint and the avermentssought to be introduced by way of amendment, by itself, cannot be asustainable ground for rejection of the prayer for amendment in the plaint. Itis not an immutable rule of law that the Plaintiff cannot take inconsistent pleasat all. The Plaintiff may claim alternative reliefs, provided the Plaintiff does notprofess to alter the character of the suit inexorably. 21.In the case of G. Nagamma and Anr. V/s. Siromanamma and Anr.3,the Plaintiff had instituted a suit for specific performance of the agreement ofreconveyance. By way of proposed amendment, the Plaintiff sought toredeem the mortgage asserting that the transaction of execution of the saledeed and obtaining a document for reconveyance were single transactionsi.e. mortgage by conditional sale. Thus, the Plaintiff by way of amendmentsought a decree for redemption of mortgage in the alternative. The TrialCourt rejected the application. The High Court upheld the order opining thatthe amendment would change the nature of the suit as well as the cause ofaction. 3(1996) 2 SCC 25SSP 17/26 wp 12605 of 2025.doc22.The Supreme Court allowed the application for amendment holding thatit is settled law that the Plaintiff is entitled to take, even inconsistent pleas.The Plaintiff was seeking alternative reliefs. The application was foramendment of the plaint whereby neither cause of action would change northe relief could be materially affected. 23.In the case of B.K.Narayana Pillai V/s. Parameswaran Pillai andAnr.4, wherein the defendant intended to amend the written statement bytaking a plea that in case he is not held a lessee, he was entitled to thebenefit of Section 60(b) of the Indian Easements Act, 1882. The SupremeCourt permitted the amendment in the written statement observing that theplea that was sought to be raised by way of amendment was neitherinconsistent nor repugnant to the pleas already raised in defence. It wasfurther enunciated that, there was no absolute bar against taking inconsistentpleas. However, inconsistent and contradictory allegations in negation to theadmitted position of facts or mutually destructive allegations of facts shouldnot be avowed to be incorporated by means of amendment to the pleadings.Proposed amendment should not cause such prejudice to the other sidewhich can not be compensated by costs. No amendment should be allowedwhich amounts to or results in defeating the legal right accrued to theopposite party on account of lapse of time. 4(2000) 1 SCC 712SSP 18/26 wp 12605 of 2025.doc24.In the case of Praful Manohar Rele V/s. Krishnabai NarayanGhosalkar and Ors.5, the Supreme Court, after adverting to thepronouncements in the case of G. Nagamma and Anr. (supra) andB.K.Narayana Pillai (supra), permitted the Plaintiff to amend the plaint so asto incorporate an alternative plea that, under the Rent Control Act, theDefendants were liable to be evicted when the initial suit for recovery ofpossession was filed on the basis of the claim that the Defendants were thelicencees and the licence stood terminated. 25.However, in cases where the relief proposed to be incorporated by wayof amendment would be barred by limitation, slightly different considerationscome into play. If it could be demonstrated that the relief proposed to beclaimed by way of amendment would be barred by limitation, the Court wouldbe justified in declining to permit the Plaintiff from amending the plaint. 26.In the case of L.J.Leach and Co. Ltd. V/s. Jardine Skinner and Co.6,the Supreme Court enunciated that, it was no doubt true that courts would,as a rule, decline to allow amendments, if a fresh suit on the amended claimwould be barred by limitation on the date of the application. But that is a factorto be taken into account in exercise of the discretion as to whetheramendment should be ordered, and does not affect the power of the court toorder it, if that is required in the interests of justice. 5(2014) 11 SCC 3166AIR 1957 SC 357SSP 19/26 wp 12605 of 2025.doc27.In the case of Life Insurance Corporation of India V/s. SanjeevBuilders Pvt. Ltd. And Anr.7, after an elaborate analysis and reference to theprevious precedents, the Supreme Court postulated that, one of the cardinalprinciples of law in allowing or rejecting an application for amendment of thepleading is that the courts generally, as a rule, decline to allow amendments, ifa fresh suit on the amended claim would be barred by limitation on the date offiling of the application. But that as clarified in L.J.Leach and Co. Ltd.(supra), would be a factor to be taken into account in the exercise of thediscretion. 28.The Supreme Court also referred to the judgment in the case of RaguThilak D. John V/s. S. Rayappan8, wherein it was exposited that, where thequestion whether amendment was barred by time or not appeared to be adisputed question of fact, the issue of limitation could be made an issue in thesuit itself, then the amendment can be allowed by directing that the questionof limitation be framed and decided in the suit itself. 29.A profitable reference can also be made to the decision of the SupremeCourt in the case of Abdul Rehman and Anr. V/s. Mohd. Ruldu and Ors.9,wherein the Supreme Court was confronted with the question as to whetherthe proposed amendment would alter the claim / cause of action of thePlaintiffs. In that case, the Plaintiffs had initially prayed for permanent7(2022) 16 SCC 18(2001) 2 SCC 4729(2012) 11 SCC 341SSP 20/26 wp 12605 of 2025.docprohibitory injunction restraining Defendant Nos.1 to 3 therein from forciblyand illegally dispossessing the Appellants. By way of amendment, theAppellants sought a declaration that the alleged sale deed in favour ofDefendant Nos.1 to 3 were liable to be set aside and that they would notaffect the rights of the Plaintiffs. In that context, the Supreme Court observedas under : “13.Next, we have to see whether the proposedamendments would alter the claim/cause of action of theplaintiffs. In view of the same, we verified the averments in theunamended plaint. As rightly pointed out by Ms. Manmeet Arora,learned counsel for the appellants that the entire factual matrixfor the relief sought for under the proposed amendment hadalready been set out in the unamended plaint. We are satisfiedthat the challenge to the voidness of those sale deeds wasimplicit in the factual matrix set out in the unamended plaint and,therefore, the relief of cancellation of sale deeds as sought byamendment does not change the nature of the suit as alleged. Itis settled law that if necessary factual basis for amendment isalready contained in the plaint, the relief sought on the said basiswould not change the nature of the suit. In view of the same, thecontrary view expressed by the trial Court and High Court cannotbe sustained. It is not in dispute that the relief sought by way ofamendment by the appellants could also be claimed by them byway of a separate suit on the date of filing of the application.Considering the date of the sale deeds and the date on which theapplication was filed for amendment of the plaint, we are satisfiedthat the reliefs claimed are not barred in law and no prejudiceSSP 21/26 wp 12605 of 2025.docshould have been caused to respondent Nos. 1-3 (defendantNos. 1-3 therein) if the amendments were allowed and would infact avoid multiplicity of litigation.” 30.The legal position which, thus, emerges is that there is no absolute baragainst even the Plaintiff making inconsistent averments in the plaint. It is thedegree of inconsistency that assumes critical salience. If the inconsistency inthe pleadings is such that it completely destroys the case initially set up andthe original pleadings and the proposed amendment work out each other’sretribution, then it would clearly be a case of setting up a new case. 31.In contrast, if the foundational facts remain the same and the proposedamendment, even if inconsistent to some extent or by way of alternative relief,is essentially in the nature of a different approach to the initial case, then itcannot be said that the proposed amendment completely and inexorablyalters the character of the suit. However, where it could be demonstratedthat, by taking inconsistent pleas, the Plaintiff intends to deprive the adversaryof an advantage on account of the initial stand of the Plaintiff, or the reliefsought to be claimed by way of amendment would be barred by limitation,then the said amendment cannot be allowed as it would fall foul of thepotentiality of prejudice principle. 32.On the aforesaid touchstone, reverting to the facts of the case, on thefirst blush, resistance on the part of the Respondents – Defendants that theproposed amendment completely alters the nature of the suit, in as much as,SSP 22/26 wp 12605 of 2025.docinitially the prayers of declaration and injunction were sought and now by wayof proposed amendment, the specific performance of the purportedagreement between the Plaintiff and Defendant No.3 is sought, appearsalluring. Indeed, the Plaintiff is seeking to delete the prayer of declaration thatthe building permission obtained by Defendant No.3 from Defendant Nos.1and 2 allegedly on the basis of false and forged documents is illegal and voidand seeks to confine the declaration to non-observance of the UnifiedDevelopment Control and Promotion Regulations, 2020. 33.It is also true, the Plaintiff seeks to restrict the challenge to the MOUdated 30 November 2021 in regard to the page Nos.3 and 4 of the said MOUand not the instrument in its entirety, as being forged and fabricated andseeks performance of the contract, which according to the Plaintiff, were thetrue terms of the contract, as agreed by and between the Plaintiff andDefendant No.3. Nonetheless, the pivotal question is, whether the aforesaidproposed amendment materially and significantly alters the nature of the suitor is based on a completely new cause of action. 34.To this end, it is imperative to revert to the case set up in the originalplaint. In para 6 of the plaint, the Plaintiff has categorically asserted that theDefendant No.3 had agreed to provide a residential unit admeasuring 600sq.ft. carpet, without any consideration in lieu of the demised premises.Defendant No.3 had also agreed to pay transit rent @ Rs.10,000/- p.m. fromSSP 23/26 wp 12605 of 2025.docthe date of delivery of the possession of the demised premises till thecompletion of the new building. In paras 7 and 8 of the plaint, the Plaintiffasserts that Defendant No.3 made the Plaintiff to execute a MOU dated 30November 2021, retained the same with it and did not provide a copy thereof,and, eventually, Defendant No.3 allegedly forged the said MOU by replacingpage Nos.3 and 4 of the said MOU; the original pages of which did bear thesignature of the Plaintiff. The contents of the MOU were, thus, materiallyaltered to the prejudice of the Plaintiff fraudulently, is the fulcrum of the caseof the Plaintiff. 35.If the proposed amendment is appraised in the light of the averments inthe original unamended plaint, it becomes explicitly clear that, all thefoundational facts are clearly and specifically pleaded in the unamendedplaint. Declarations initially sought by the Plaintiff emanated from theaforesaid averments in the unamended plaint. The case of the Plaintiff thathe is entitled to 600 sq.ft. Residential unit and transit rent @ Rs.10,000/- p.a.,from the date of the surrender of the demised premises till the construction ofthe new building, remain intact and unaltered. What the Plaintiff is seeking byway of proposed amendment is the reliefs which are in tune with theaverments in the unamended plaint. The proposed amendment neitherintroduces a new cause of action, nor materially alters the substratum of theclaim of the Plaintiff. Since the MOU was purportedly executed on 30SSP 24/26 wp 12605 of 2025.docNovember 2021, and in para 8 of the plaint, there are averments to the effectthat the Plaintiff came to know about the alleged forgery in the MOU after thePlaintiff confronted the Defendant No.3 about the non-payment of the transitrent and the application for amendment was filed on 13 January 2025, itcannot be said that the relief sought by way of amendment would be ex-faciebarred by law of limitation. The question of limitation would, thus, be in thearena of mixed question of facts and law. Therefore, if the proposedamendment is permitted, no prejudice would be caused to the Defendants.Nor the Defendants would be divested of any accrued right. 36.It is well neigh settled that, while considering the prayer for amendmentin the pleadings, the Court is not required to delve into the merits of theamendment. The Plaintiff may or may not eventually succeed in getting therelief sought by way of proposed amendment. However, that cannot be aninhibiting factor while adjudicating the prayer for amendment. (RakeshKumar Aggarwal and Ors. V/s. K.K.Modi and Ors.10) 37.The conspectus of aforesaid consideration is that the proposedamendment is essential for the determination of the real question incontroversy between the parties, namely the nature and extent of theentitlement of the Plaintiff upon redevelopment of the suit premises. Thatbeing the crux of the dispute, the proposed amendment would obviate the10(2006) 4 SCC 385SSP 25/26 wp 12605 of 2025.docmultiplicity of the proceedings, as all the questions in controversy can bedetermined once and for all. 38.For the foregoing reasons, I am inclined to allow the Petition. 39.Hence, the following order : ORDER (i)The Writ Petition stands allowed in terms of prayer clause (a). (ii)Necessary amendment be carried out in the plaint and amendedcopy of the plaint be served on the Defendants within a period of four weeksfrom today. (iii)The Defendants would be at liberty to file additional writtenstatement to the amended plaint within a period of 30 days from the date ofservice of the copy of the amended plaint. (iv)The question of limitation in regard to the reliefs sought by way ofproposed amendment shall remain open for adjudication at the trial. (v)Rule made absolute to the aforesaid extent. (vi)No costs. ( N.J.JAMADAR, J. )SSP 26/26