Small And Medium Enterprises v. Mr. Arvind Vashisth, learned Senior Counsel assisted by Mr

Judgment

1. I n t his appeal, filed under Sect ion 13 ( 1- A) of Com m ercial Court s Act , 2015, order dat ed 21.12.2024 passed by learned Com m ercial Court , Dehradun challenged. By t he said order, applicat ion filed by appellant , seeking t o am end t he plaint , rej ect ed.

2. Appellant filed a suit for inj unct ion alleging t hat he has been purchasing m olasses from different sugar 1 m ills, including defendant no. 1, for m anufact uring anim al feed. Pursuant t o an ‘agreem ent t o sell’ ent ered int o bet ween him and respondent no. 1, appellant m ade advance paym ent of ₹8,64,65,581.30, however, respondent no. 1, inst ead of delivering m olasses t o t he appellant , has st art ed process of selling 35615.20 quint al of m olasses t o respondent no. 9. Thus prayed t hat perm anent inj unct ion be grant ed rest raining defendant Nos. 1 & 2, t heir agent s, servant s et c. from t ransferring t he m olasses, st ored in St eel Tank No. 2 in favour of defendant No. 9 or any ot her person.

3. Aft er filing of t he suit , appellant sought leave t o am end t he prayer, which was grant ed by learned Com m ercial Court vide order dat ed 19.12.2024. Appellant t hereaft er filed anot her applicat ion under Order 6 Rule 17 CPC for am ending t he plaint ; whereas

defendant nos. 6 & 8 filed applicat ion under Order 7 Rule 11 CPC for rej ect ion of plaint . Learned Com m ercial Court rej ect ed appellant ’s am endm ent applicat ion vide order dat ed 21.12.2024 while deferring disposal of applicat ion under Order 7 Rule 11 CPC filed by defendant s.

4. Applicat ion under Order 6 Rule 17 CPC filed by t he appellant was rej ect ed on t he ground t hat ( i) am endm ent sought t o be incorporat ed in t he plaint are not of essent ial nat ure and ( ii) wit hout m ediat ion, no suit can be ent ert ained in view of Sect ion 12A of t he Com m ercial Court s Act , and if relief clause is perm it t ed t o be am ended, t hen bar of Sect ion 12A would becom e redundant . 2

5. Mr. Arvind Vashist h, learned Senior Counsel appearing for t he appellant subm it s t hat t he grounds of rej ect ion are unsust ainable; learned Court has erroneously exam ined m erit s of t he am endm ent sought t o be incorporat ed, which is im perm issible; suit was filed only in t he m ont h of August , 2024 in which issues are also not set t led, t herefore, proviso t o Rule 17 Order 6 is also not at t ract ed; nat ure of t he suit is not going t o change by am endm ent , as relief of declarat ion only is sought t o be added. He furt her subm it s t hat plaint iff is ent it led t o place his ent ire case before t he court and t he am endm ent sought is necessary for det erm ining t he real quest ions in cont roversy and am endm ent , if m ade, will not cause inj ust ice or prej udice t o t he ot her side. He subm it s t hat t he obj ect of Order 6 Rule 17 CPC is t o avoid m ult iplicit y of suit s and t o achieve t hat purpose, a liberal approach should be adopt ed. He furt her subm it s t hat alt hough am endm ent cannot be claim ed as a m at t er of right , but it is equally t rue t hat court s while deciding such prayer should not adopt a hyper- t echnical approach and liberal approach has t o be preferred part icularly, in cases where t he ot her side can be com pensat ed wit h cost s. He furt her subm it s t hat rej ect ion of applicat ion on t he ground t hat m ediat ion has not t aken place, cannot be a valid ground and learned Com m ercial Court has pre- j udged t he obj ect ion regarding m ediat ion t aken by t he defendant .

6. Per cont ra, Mr. Sagar Kot hari, learned counsel appearing respondent no. 1 subm it t ed t hat am endm ent applicat ion m oved by t he appellant was right ly rej ect ed and t he st at ut ory bar cont ained in 3 Sect ion 12- A of t he Com m ercial Court s Act cannot be overlooked.

7. Order 6 Rule 17 CPC, dealing wit h am endm ent of pleadings, is reproduced below: - “ 17. Am endm ent of pleadings.- The Court m ay at any st age of t he proceedings allow eit her part y t o alt er or am end his pleading in such m anner and on such t erm s as m ay be j ust , and all such am endm ent s shall be m ade as m ay be necessary for t he purpose of det erm ining t he real quest ions in cont roversy bet ween t he part ies. Provided t hat no applicat ion for am endm ent shall be allowed aft er t he t rial has com m enced, unless t he Court com es t o t he conclusion t hat in spit e of due diligence, t he part y could not have t he raised com m encem ent of t rial.” t he m at t er before

8. Rule 17 Order 6 CPC declares t hat t he Court m ay, at any st age of t he proceedings, allow eit her part y t o alt er or am end his pleadings in such a m anner and on such t erm s as m ay be j ust . I t also st at es t hat such am endm ent should be necessary for t he purpose of det erm ining t he real quest ion in cont roversy bet ween t he part ies. The proviso enact s t hat no applicat ion for am endm ent should be allowed aft er t he t rial com m enced, unless t he court com es t o t he conclusion t hat in spit e of due diligence, t he part y could not have raised t he m at t er for which am endm ent is sought , before com m encem ent of t rial.

9. The obj ect of t he Rule is t hat Court should t ry t he m erit s of t he case t hat com e before t hem and should, consequent ly, allow all am endm ent s t hat m ay be necessary for det erm ining t he real quest ion cont roversy bet ween t he part ies, provided it does not cause inj ust ice or prej udice t o t he ot her side. 4

10. Rule 17 Order 6 CPC consist s of t wo part s. Whereas t he first part is discret ionary and leaves it t o t he Court t o allow am endm ent of pleadings. The second part is im perat ive and enj oins t he Court t o allow all am endm ent s which are necessary for t he purpose of det erm ining t he real quest ions in cont roversy bet ween t he part ies.

11. I n t he case of Raj esh Kum ar Aggarwal and ot hers Vs. K.K. Modi and ot hers, report ed in ( 2006) 4 SCC 385, Hon’ble Suprem e Court held t hat while considering prayer for am endm ent , Court should not go int o t he correct ness or falsit y of t he case in t he am endm ent . I t was furt her held t hat Court should not record a finding on t he m erit s of t he am endm ent and t he m erit s of t he am endm ent sought t o be incorporat ed are not t o be adj udged at t he st age of allowing t he prayer am endm ent . Para 17, 18 and 19 of t he said j udgm ent are reproduced below: - “ 1 7 . I n our view, since t he cause of act ion arose during t he pendency of t he suit , proposed am endm ent ought t o have been grant ed because t he basic st ruct ure of t he suit has not changed and t hat t here was m erely change in t he nat ure of relief claim ed. We fail t o underst and if it is perm issible for t he appellant s t o file an independent suit , why t he sam e relief which could be prayed for in t he new suit cannot be per m it t ed t o be incorporat ed in t he pending suit . 1 8 . As discussed above, t he real cont roversy t est is t he basic or cardinal t est and it is t he prim ary dut y of t he court t o decide whet her such an am endm ent is necessary t o decide t he real disput e bet ween t he part ies. I f it is, t he am endm ent will be allowed; if it is not , t he am endm ent will be refused. On t he cont rary, t he learned Judges of t he High Court wit hout deciding w het her such an am endm ent is necessary have expressed cert ain opinions and ent ered int o a discussion on m erit s of t he am endm ent . I n cases like t his, t he court should also t ake not ice of subsequent event s in order t o short en t he lit igat ion, t o preserve and safeguard t he right s of bot h part ies and t o subserve t he ends of j ust ice. I t is set t led by a cat ena of decisions of t his 5 Court t hat t he rule of am endm ent is essent ially a rule of j ust ice, equit y and good conscience and t he power of am endm ent should be exercised in t he larger int erest of doing full and com plet e j ust ice t o t he part ies before t he court . applicat ion considering whet her 1 9 . While am endm ent should or should not be allowed, t he cour t should not go int o t he correct ness or falsit y of t he case in t he am endm ent . Likewise, it should not record a finding on t he m erit s of t he am endm ent and t he m erit s of t he incorporat ed by way of am endm ent sought am endm ent are not t o be adj udged at t he st age of allowing t he prayer for am endm ent . This cardinal principle has not been followed by t he High Court in t he inst ant case. t o be

12. I n t he of B.K. Narayana Pillai v. Param eswaran Pillai, report ed in ( 2000) 1 SCC 712, Hon’ble Suprem e Court held t hat Court s while deciding a prayer for am endm ent in t he pleading should adopt a liberal and not hyper- t echnical approach. I t was furt her held t hat t echnicalit ies of law should not be perm it t ed t o ham per t he Court s in t he adm inist rat ion of j ust ice bet ween t he part ies and furt her t hat am endm ent s are allowed t he pleadings t o avoid uncalled m ult iplicit y of lit igat ion.

13. The aforesaid power of t he Court , however, is subj ect t o t he rider put by proviso t o Order 6 Rule 17 CPC, which provides t hat no applicat ion for am endm ent should be allowed aft er com m encem ent of t rial, unless t he Court com es t o t he conclusion t hat in spit e of due diligence, t he part y could not have raised t he m at t er for which am endm ent is sought , before com m encem ent of t he t rial.

14. I n Salem Advocat e Bar Associat ion, T.N. Vs. Union I ndia, report ed in ( 2005) 6 SCC 344, Hon’ble Suprem e Court held t hat t he obj ect of proviso is t o 6 prevent frivolous applicat ions which are filed t o delay t he t rial.

15. Ult im at ely, t he dut y of court s is t o adm inist er j ust ice bet ween t he part ies involved, rat her t han t o inflict punishm ent upon t hem . The Court s are em powered t o allow am endm ent s or m odificat ions t o t he pleadings, in order t o serve t he broad obj ect ive of ensuring com prehensive adj udicat ion of all disput es. Order 6 Rule 17 CPC is aim ed at advancing t he obj ect ives of j ust ice rat her t han defeat ing t hem .

16. Hon’ble Suprem e Court , in t he case of Pirgonda Hongonda Pat il v. Kalgonda Shidgonda Pat il [ Pirgonda Hongonda Pat il v. Kalgonda Shidgonda Pat il, 1957 SCC OnLine SC 65 : AI R 1957 SC 363] , discussed t he t est s which have t o be applied while considering prayer for am endm ent of a plaint . I t observed as follows: Rupchand v. Rachappa “ 10. Learned counsel for t he appellant referred us t o t he Vit hoba in Kisandas Rupchand v. Rachappa decision Shilwant [ Kisandas Vit hoba Shilwant , 1909 SCC OnLine Bom 84 : I LR ( 1909) 33 Bom 644] , 655 and placed great reliance on t he observat ions of Beam an, J. at p. 655: I n m y opinion, t wo sim ple t est s, and t wo only, need t o be applied, in order t o ascert ain whet her a given case is wit hin t he principle. First , could t he part y asking t o am end obt ain t he sam e quant it y of relief wit hout t he am endm ent ? I f not , t hen it follows necessarily t hat t he proposed am endm ent places t he ot her part y at a disadvant age, it allows his opponent t o obt ain m ore from him t han he would have been able t o obt ain but for t he am endm ent . Second, t he part y t hus placed at a disadvant age be com pensat ed for it by cost s? I f not , t hen t he am endm ent ought not , unless t he case is so peculiar as t o be t aken out of t he scope of t he rule, t o be allow ed.” t hose circum st ances, can

17. The view t aken in aforem ent ioned j udgm ent followed in Railways v. Bhagwan Das [ Railways v. Bhagwan Das, ( 2008) 8 SCC 511] , wherein, Hon’ble Suprem e Court st at ed t hat above 7 st at ed principle st ill holds t he field. I t was held t hat all am endm ent s ought t o be allowed if t hey sat isfy t win condit ions, first ly, no inj ust ice is caused t o t he ot her side and secondly, t he am endm ent s are necessary for t he purpose of det erm ining t he real issue in disput e bet ween t he part ies. I t was furt her held t hat am endm ent s are t o be refused only where t he ot her part y cannot be placed in t he sam e posit ion as if t he pleading had been originally correct , but t he am endm ent would cause him an inj ury which could not be com pensat ed in t erm s of cost s. These are t he broad principles t o be kept in m ind while dealing wit h an applicat ion under Order 6 Rule 17 CPC.

18. Furt her, in t he case of St at e of M.P. v. Union of I ndia [ St at e of M.P. v. Union of I ndia, ( 2011) 12 SCC 268 : ( 2012) 2 SCC ( Civ) 478] , Hon’ble Suprem e Court reit erat ed t he scope and ext ent of powers under t he above said provision, and observed as follows: “ 10. This Court , while considering Order 6 Rule 17 of t he Code, in several j udgm ent s has laid down t he principles t o be applicable in t he case of am endm ent of plaint which ar e as follows: “ 5. As t he prayer not ed herein earlier, ( i) Surender Kum ar Sharm a v. Makhan Singh [ Surender Kum ar Sharm a v. Makhan Singh, ( 2009) 10 SCC 626 : ( 2009) 4 SCC ( Civ) 294] , at para 5: ( SCC p. 627, para 5) am endm ent was refused by t he High Court on t wo grounds. So far as t he first ground is concerned i.e. t he prayer for am endm ent was a belat ed one, we are of t he view t hat even if it was belat ed, t hen also, t he quest ion t hat needs t o be decided is t o see whet her by allowing t he am endm ent , t he part ies m ay be resolved. I t is well set t led t hat under Order 6 Rule 17Code of Civil Procedure, wide powers and unfet t ered discret ion have been conferred on t he court t o allow am endm ent of t he pleadings t o a part y in such a m anner and on such t erm s as it appears t o t he court j ust and proper. Even if, such an applicat ion for am endm ent of filed belat edly, such belat ed am endm ent cannot be refused if it is found t hat for deciding t he real cont roversy bet ween t he part ies, it t he real cont roversy bet ween t he plaint was 8 can be allowed on paym ent of cost s. Therefore, in our view, m ere delay and laches in m ak ing t he applicat ion for am endm ent cannot be a ground t o refuse t he am endm ent .” ( ii) Railways v. Bhagwan Das [ Railways v. Bhagwan Das, ( 2008) 8 SCC 511] , at para 16: ( SCC p. 517, para 16) t he I n Pirgonda proceedings. “ 16. I nsofar as t he principles which govern t he quest ion of grant ing or disallowing am endm ent s under Order 6 Rule 17CPC ( as it st ood at t he relevant t im e) are concerned, t hese are also well set t led. Order 6 Rule 17CPC post ulat es am endm ent of pleadings at any st age Hongonda Pat il v. Kalgonda Shidgonda Pat il [ Pir gonda Hongonda Pat il v. Kalgonda Shidgonda Pat il, 1957 SCC OnLine SC 65 : AI R 1957 SC 363] which st ill holds t he field, it was held t hat all am endm ent s ought t o be allowed which sat isfy t he t wo condit ions: ( a) of not working inj ust ice t o t he ot her side; and ( b) of being necessary for t he purpose of det erm ining cont roversy bet ween t he part ies. Am endm ent s should be refused only where t he ot her part y cannot be placed in t he sam e posit ion as if t he pleading had been originally correct , but t he am endm ent would cause him an inj ury which could not be com pensat ed in cost s.” ( iii) Usha Devi v. Rij wan Aham d [ Usha Devi v. Rij wan Aham d, ( 2008) 3 SCC 717 : ( 2008) 1 SCC ( Civ) 922] , at para 13: ( SCC p. 722, para 13) real quest ions t he “ 13. Mr Bharuka, on t he ot her hand, invit ed our at t ent ion t o anot her decision of t his Court in Baldev Singh v. Manohar Singh v. Manohar Singh [ Baldev Singh, ( 2006) 6 SCC 498] . I n para 17 of t he decision, it was held and observed as follows: ( SCC pp. 504- 505, para 17) ‘17. Before we part wit h t his order, w e m ay also not ice t hat proviso t o Order 6 Rule 17CPC provides t hat am endm ent of pleadings shall not be allowed when t he t rial of t he suit has already com m enced. For t his reason, we have exam ined t he records and find t hat , in fact , t he t rial has not yet com m enced. I t appears from t he records t hat t he part ies have yet t o file t heir docum ent ary evidence in t he suit . From t he record, it also appears t hat t he suit was not on t he verge of conclusion as found by t he High Court and t he t rial court . That apart , com m encem ent of t rial as used in prov iso t o Order 6 Rule 17 in t he Code of Civil Procedure m ust be underst ood in t he lim it ed sense as m eaning t he final hearing of t he suit , exam inat ion of wit nesses, filing of docum ent s and addressing of argum ent s. As not ed hereinbefore, part ies are yet t o file t heir docum ent s, we do not find any reason t o rej ect t he applicat ion for am endm ent of t he writ t en st at em ent in view of proviso t o Order 6 Rule 17CPC which confers wide power and t o allow an unfet t ered discret ion on t he court 9 am endm ent of t he writ t en st at em ent at any st age of t he proceedings.’” ( iv) Raj esh Kum ar Aggarwal v. K.K. Modi [ Raj esh Kum ar Aggarwal v. K.K. Modi, ( 2006) 4 SCC 385] , at paras 15 and 16: ( SCC pp. 392- 393, paras 15 and 16) “ 15. The obj ect of t he rule is t hat t he court s should t ry t he m erit s of t he case t hat com e before t hem and should, consequent ly, allow all am endm ent s t hat m ay be necessary cont roversy bet ween t he part ies provided it does not cause inj ust ice or prej udice t o t he ot her side. t he real quest ion for det erm ining

16. Order 6 Rule 17 consist s of t wo part s. Whereas t he first part is discret ionary ( m ay) and leaves it t o t he court t o order am endm ent of pleading. The second part is im perat ive ( shall) and enj oins t he court t o allow all am endm ent s which are necessary for t he purpose of det erm ining t he real quest ion in cont roversy bet ween t he part ies.” ( v) Revaj eet u Builders & Developers v. Narayanaswam y & Sons [ Revaj eet u v. Narayanaswam y & Sons, ( 2009) 10 SCC 84 : ( 2009) 4 SCC ( Civ) 37] , at para 63: ( SCC p. 102, para 63) Developers Builders & “ 63. On crit ically analysing bot h t he English and I ndian cases, som e basic principles em erge which ought t o be int o considerat ion while allowing or rej ect ing t he applicat ion for am endm ent : t aken ( 1) whet her t he am endm ent sought is im perat ive for proper and effect ive adj udicat ion of t he case; ( 2) whet her t he applicat ion for am endm ent is bona fide or m ala fide; ( 3) t he am endm ent should not cause such prej udice t o t he ot her side which cannot be com pensat ed adequat ely in t erm s of m oney; ( 4) refusing am endm ent would t o ( 5) inj ust ice or lead t o m ult iple lit igat ion; t he whet her const it ut ionally or nat ure and charact er of t he case; and proposed fundam ent ally changes am endm ent t he ( 6) as a general rule, t he court should decline am endm ent s t he am ended claim s would be barred by lim it at ion on t he dat e of applicat ion. fresh suit on if a These are som e of t he im port ant fact ors which m ay be kept in m ind while dealing wit h applicat ion filed under Order 6 Rule 17. These are only illust rat ive and not exhaust ive.” The above principles m ake it clear t hat court s have am ple power t o allow t he applicat ion for am endm ent of t he plaint . However, t hey m ust be sat isfied t hat t he sam e is required in t he int erest of j ust ice and for t he purpose of det erm inat ion of real quest ion in cont roversy bet ween t he part ies.” 10 I n t he case of Life I nsurance Corporat ion of I ndia

19. v. Sanj eev Builders Privat e Lim it ed and Anot her, ( 2022) 16 SCC 1, Hon’ble Suprem e Court while considering t he scope of powers under Order 6 Rule 17 CPC has held as under: “ 18. I t is well set t led t hat t he court m ust be ext rem ely liberal in grant ing t he prayer for am endm ent , if t he court is of t he view t hat if such am endm ent is not allowed, a part y , who has prayed for such an am endm ent , shall suffer irreparable loss and inj ury. I t is also equally well set t led t hat t here is no absolut e rule t hat in every case where a relief is barred because of lim it at ion, am endm ent should not be allowed. I t is always open t o t he court t o allow an am endm ent t hat allowing of an am endm ent shall r eally subserve t he ult im at e cause of j ust ice and avoid furt her lit igat ion.” t he view is of

20. I n t he case of Life I nsurance Corporat ion of I ndia ( supra) , aft er considering various j udgm ent s rendered from t im e t o t im e, Hon’ble Suprem e Court sum m arized t he legal posit ion in para 71 of t he said j udgm ent , which is ext ract ed below: “ 71. Our final conclusions m ay be sum m ed up t hus: 71.1. Order 2 Rule 2CPC operat es as a bar against a subsequent suit if t he requisit e condit ions for applicat ion t hereof are sat isfied and t he field of am endm ent of pleadings falls far beyond it s purview. The plea of am endm ent being barred under Order 2 Rule 2CPC is, t hus, m isconceived and hence negat ived.

71.2. All am endm ent s are t o be allowed which are necessary for det erm ining t he real quest ion in cont roversy provided it does not cause inj ust ice or prej udice t o t he ot her side. This is m andat ory, as is apparent from t he use of t he word “ shall”, in t he lat t er part of Order 6 Rule 17CPC. 71.3. The prayer for am endm ent is t o be allowed: 71.3.1. I f t he am endm ent is required for effect ive and proper adj udicat ion of t he cont roversy bet ween t he part ies. 71.3.2. To avoid m ult iplicit y of proceedings, provided ( a) t he am endm ent does not result in inj ust ice t o t he ot her side, ( b) by t he am endm ent , t he part ies seeking am endm ent do not seek t o wit hdraw any clear adm ission m ade by t he part y which confers a right on t he ot her side, and ( c) t he am endm ent does not raise a t im e- barred claim , result ing in divest ing of t he ot her side of a valuable 11 accrued right ( in cert ain sit uat ions) . 71.4. A prayer for am endm ent is generally required t o be allowed unless:

71.4.1. By t he am endm ent , a t im e- bar red claim is sought t o be int roduced, in which case t he fact t hat t he claim would be t im e- barred becom es a relevant fact or for considerat ion. 71.4.2. The am endm ent changes t he nat ure of t he suit . 71.4.3. The prayer for am endm ent is m ala fide, or 71.4.4. By t he am endm ent , t he ot her side loses a valid defence.

71.5. I n dealing wit h a prayer for am endm ent of pleadings, t he court should avoid a hypert echnical approach, and is ordinarily required t o be liberal especially where t he opposit e part y can be com pensat ed by cost s.

71.6. Where t he am endm ent would enable t he cour t t o pin- point edly consider t he disput e and would aid in rendering a m ore sat isfact ory decision, t he prayer for am endm ent should be allowed.

71.7. Where t he am endm ent m erely sought t o int roduce an addit ional or a new approach wit hout int roducing a t im e- barred cause of act ion, t he am endm ent is liable t o be allow ed even aft er expiry of lim it at ion.

71.8. Am endm ent m ay be j ust ifiably allowed where it is int ended t o rect ify t he absence of m at erial part iculars in t he plaint .

71.9. Delay in applying for am endm ent alone is not a ground t o disallow t he prayer. Where t he aspect of delay is arguable, t he prayer for am endm ent could be allowed and t he issue of lim it at ion fram ed separat ely for decision. t o t he t he relief

71.11. Where t he plaint , and

71.10. Where t he am endm ent changes t he nat ure of t he suit or t he cause of act ion, so as t o set up an ent irely new case, foreign t o t he case set up in t he plaint , t he am endm ent m ust be disallowed. Where, however, t he am endm ent sought is only wit h respect predicat ed on fact s which are already pleaded in t he plaint , ordinarily t he am endm ent is required t o be allowed. sought before am endm ent com m encem ent of t rial, t he court is r equired t o be liberal in it s approach. The court is required t o bear in m ind t he fact t hat t he opposit e part y would have a chance t o m eet t he case set up in am endm ent . As such, where t he am endm ent does not result in irreparable prej udice t o t he opposit e part y, or divest t he opposit e part y of an advant age which it had secured as a result of an adm ission by t he part y seeking am endm ent , t o be allowed. Equally, where t he am endm ent is necessary for t he court t o in cont rover sy effect ively adj udicat e on bet ween t he part ies, t he am endm ent should be allowed. ( See Vij ay Gandhi [ Vij ay Gupt a v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897] ) ” Gupt a v. Gagninder t he am endm ent is required t he m ain issues Kr.

21. I n t he case of Dinesh Goyal v. Sum an Agarwal ( Bindal) , 2024 SCC OnLine SC 2615, Hon’ble Suprem e 12 Court reit erat ed t hat t he Court s should adopt a liberal approach in grant ing leave t o am end t he pleadings, however, t he sam e cannot be in cont ravent ion of t he st at ut ory boundaries placed on such power.

22. I n t he case of Ganesh Prasad v. Raj eshwar Prasad, 2023 SCC OnLine SC 256 Hon’ble Suprem e Court has considered t he quest ion whet her a Court can allow t he plaint iff t o am end t he plaint on t he basis of defence t aken by t he defendant . Para 47 of t he said j udgm ent is reproduced below: - “ 47. I n t he event , if t he pleas sought t o be int roduced by plaint iff by way of an am endm ent is also t he plea, which t he defendant has set up in his writ t en st at em ent and such a plea of t he plaint iff is an alt ernat ive plea, even t hough it is inconsist ent w it h t he original plea, since t here is no prej udice caused is not t o precluded from allowing t he am endm ent .” t he defendant , t he Court

23. From t he aforesaid j udgm ent s, it is revealed t hat a liberal approach has t o be adopt ed while considering applicat ion seeking am endm ent of pleading and am endm ent should be allowed where it is necessary for deciding t he real quest ion in cont roversy bet ween t he part ies.

24. I n t he present case, learned Com m ercial Court has exam ined m erit s of t he am endm ent sought t o be m ade by t he appellant which was not a right t hing t o do at t hat st age. The am endm ent cannot be said t o be belat ed one as t he suit is filed only in t he m ont h of August , 2024 and issues are yet t o be set t led in t he suit , t herefore, proviso t o Rule 17 Order 6 is not at t ract ed. The am endm ent sought , if perm it t ed, is not going t o change t he nat ure of t he suit and no prej udice is going t o be caused t o t he ot her side by allowing t he 13 prayer for am endm ent . The am endm ent appears t o have been necessit at ed in view of t he order dat ed

08.11.2024, passed by Com pet ent Aut horit y on t he applicat ion m ade by respondent No. 1, whereby he was perm it t ed t o sell 25 percent of t he m olasses in open m arket . The am endm ent sought t o be m ade appears t o be necessary for det erm ining t he real quest ion cont roversy, t herefore, wit h a view t o avoid m ult iplicit y suit , t he am endm ent sought t he plaint iff/ appellant deserves t o be allowed.

25. Learned counsel for t he respondent subm it t ed t hat am endm ent s sought by appellant are aim ed at answering t he pleading m ade in t he writ t en st at em ent , t herefore Com m ercial Court was j ust ified in rej ect ing t he prayer for am endm ent . Para 47 of t he j udgm ent rendered in t he case of Ganesh Prasad ( supra) , is a com plet e answer t o t he said obj ect ion. Since no prej udice is going t o be caused t o t he defendant by perm it t ing t he plaint iff t o am end his plaint , t herefore, m erely because plaint iff want s t o int roduce cert ain pleas by way of an am endm ent in t he plaint , which t he defendant has set up in his writ t en st at em ent , will not be a valid ground rej ect ing t he prayer am endm ent m ade by t he plaint iff.

26. Since applicat ion filed under Order 7 Rule 11 by t he defendant s is yet t o be considered, t herefore bar of Sect ion 12A of Com m ercial Court s Act can be exam ined by Court concerned while deciding t he said applicat ion.

27. For t he aforesaid reasons, t he order im pugned in t his appeal deserves t o be set aside and is hereby set aside. The applicat ion under Order 6 Rule 17 CPC filed 14 by appellant ( Paper No. 99B) is allowed, subj ect t o cost of Rs. 20,000/ - payable by appellant t o t he defendant s. __________________ G. N A REN DA R, C. J. ________________________ M A N OJ K UM A R TI W A RI , J. Dt : 07.01.2025 Aswal/ Mahinder MAHINDER SINGH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=da6212e6e78d94ed3134842bc6a8d6ca168979ca7b8c2f031a92d1a18b08923c, postalCode=263001, st=UTTARAKHAND, serialNumber=AB77B7C5B240908B392BE84F5CDD4C2AF35DC4626D305B1BC9EA4BABA43D2B8F, cn=MAHINDER SINGH 15