IN THE HIGH COURT OF DELHI AT NEW DELHI. IPA No.15/2005. Date of decision : November 20, Vs.

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CIVIL PROCEDURE IPA No.15/2005 Date of decision : November 20, 2007 Sarbjyot Kaur Saluja and Ors Through: Ms.Geeta Luthra, Advocate.... Plaintiffs Vs. Rajender Singh Saluja... Defendant Through: Mr.Aman Lekhi, Sr.Advocate with Mr.Jaspreet S.Rai, Advocate. ANIL KUMAR, J. (Oral) IA No.3544/2007 The learned counsel for the plaintiff/applicant states that another application under Order 6 Rule 17 has also been filed by the plaintiff and consequently she does not press the present application. Dismissed as not pressed. IA No.12297/ This is an application by the plaintiff seeking amendment to the plaint under Order 6 Rule 17 of the Code of Civil Procedure. 2. The plaintiffs/applicants contend that they have filed a suit for permanent injunction and maintenance against the defendants under Sections 18, 20 and 23 of Hindu Adoption and Maintenance Act.

2 3. According to the plaintiffs the defendant No.1 has filed his written statement and has categorically admitted his obligation to maintain the plaintiffs and has conceded his liability to pay the maintenance to the plaintiffs. It is also disclosed that the defendant No.1 in order to establish his alleged bonafides has stated that he is paying Rs.20,000/- per month to the plaintiff towards maintenance. 4. According to the plaintiffs they have pleaded elaborately their entitlement for Rs.1.5 lakhs per month as maintenance and according to the plaintiffs they have set out material averments in respect thereto in the plaint, however, on account of an inadvertent error the prayer clause of the plaint does not specifically include a prayer for relief of maintenance of Rs.1.5 lakhs per month. Consequently, the plaintiff wants to amend the plaint by incorporating the prayer (aa) as detailed in para 7 of the application. The plaintiff consequently also seeks to amend the title of the plaint so as to incorporate the provisions of The protection of Women from Domestic Violence Act, 2005 which has been invoked on 17th October, 2006 as the Court is competent to exercise its power conferred under Sections 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, The plaintiff also wants to amend para 53 of the plaint so as to contend that the guest house built at property No.1/65, Ganga Ram Hospital Road, Old Rajinder Nagar, New Delhi known as Hotel Royal Palace is entirely owned by him in place of the averment already made that the defendant No.1 owns 50% share in the guest house, as later on the plaintiffs came to know of the said fact and plaintiffs also want to incorporate para 53A to 53F incorporating averments regarding entitlement of the plaintiff for a maintenance of Rs.1.5 lakhs per month and the fact that the plaintiffs have insufficient means to pay the ad- valorum Court Fees on the suit which is valued at Rs.1,80,00,000/-. By incorporating para 53A to 53F the plaintiff wants to incorporate the facts that they are indigent persons with insufficient means to pay the Court fees. 6. Plaintiffs have contended that the application is bonafide and amendments proposed to the plaint by the plaintiffs are necessary for determination of real controversies between the parties. An affidavit has also been filed along with an application, however, in the affidavit dated 12th November, 2007 the application has been referred to as a reply. 7. The application is contested by the defendants contending that application is incompetent, wanting in bonafide and causes prejudice to the non applicant as the amendment sought are both unjust and unnecessary and the application has been moved not to correct an oversight or omission but only to sustain the suit by supplying a cause of action which has been missing in the plaint. According to the defendants in the written statement objection has been raised not only to absence of the prayer of maintenance but also to the non compliance of the provision of

3 Order 33 of the Code of Civil Procedure and consequently, rejection of the application under Order 33 Rule 5 has been sought which is mandatory according to the defendants. The various allegations made by the plaintiffs on merits of the case have been emphatically denied by the defendants contending that the defendants have been meeting their obligations and has been regularly paying not only the school fees of his children but also the household expenses including the electricity and water consumed therein. 8. Along with the suit the plaintiffs had filed an application under Order 33 Rule 1 being IA No.6240/2005 seeking permission to sue as an indigent person. According to the defendants this application is not verified in accordance with the requirement of Rule 2 of Order 33 which contemplates that the application should be signed and verified in the manner prescribed for signing and verification of pleadings. For signing and verification of the pleadings the learned senior counsel for the defendants, Mr.Lekhi has relied on Order 6 Rule 15 of the Code of Civil Procedure contemplating that the pleadings has to be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. According to the learned senior counsel,since the application under Order 33 to sue as an indigent person has not been filed in compliance with law by the plaintiffs, the application is liable to be rejected under Order 33 Rule 5 of the Code of Civil Procedure. It has also been contended that the affidavit filed with the application under Order 33 will not be valid for the amendment sought in the plaint and consequently the amendment cannot be allowed. The learned senior counsel has also emphasized relying on 1976(2) SCR 246 at page 257 that no material facts have been given by the plaintiffs in support of their claim for maintenance of Rs.1.5 lakhs per month and, therefore, the proposed amendment should not be allowed. 9. The learned counsel for the plaintiffs, Ms.Geeta Luthra has countered the pleas of the learned senior counsel for the defendants Mr.Lekhi contending that paras 18, 20, 34 and 40 of the plaint disclose cause of action and documents filed by the plaintiffs also show the cause of action in favor of plaintiffs and amendment has been sought in the plaint incorporating the pleas regarding the fact that the plaintiffs are indigent persons and seek to sue as indigent person and the plaint has been verified properly and is also supported by an affidavit and the list of properties of the plaintiffs are given in Schedule A which Schedule has also been verified. The learned counsel for the plaintiffs has also relied on MANU/DE/0419/1995 Jethu Ram Rice Mill Vs. Ashok Kumar Verma and Anr. to contend that Order 33 of the Code of Civil Procedure does not warrant technical but only proper compliance and an application along with the copy of the plaint should be deemed as properly framed which is supported by an affidavit. In case the annexed plaint is duly verified and the annexed Schedule of properties with the

4 value thereof have also been duly verified as true by the applicants, in such circumstances it should be deemed that it has been properly framed and duly verified. The learned counsel for the plaintiffs very emphatically contended that Order 33 does not warrant a meticulous hyper technical interpretation against a pauper applicant but only proper and substantial compliance by him. 10. The learned counsel has also relied on AIR 1990 Andhra Pradesh 115, Bommineni Laxmi Devamma Vs. Bommineni Konappa where a Division Bench of the A.P High Court had held that the requirement as contemplated under Order 33 Rule 5 relates to pleading and if the application does not conform to Rule 2 and 3 it cannot be treated as fatal, as Order 33 Rule 5 relates to procedure and is, therefore, directory and not mandatory and in such circumstances the application cannot out rightly be rejected as sometimes mistake may occur deliberately and sometimes accidentally. 11. The application under Order 33 filed by the plaintiffs being IA No.6240/2005 pleads the facts regarding the plaintiffs being indigent persons along with the Schedule of properties of the plaintiffs which has been duly verified. The application is duly supported by an affidavit of the plaintiff with a proper verification which verifies the facts stated in the application. A Division Bench of this Court in Jethu Ram Rice Mill (Supra) had held that Order 33 Civil Procedure Code does not warrant technical but only proper compliance. An application filed under Order 33 of Code of Civil Procedure according to the plaintiff must incorporate all the particulars as required in the suit along with the schedule of movable and immovable properties belonging to the applicant and should be signed and verified in the manner prescribed for signing and verification of the pleadings. 12. It has been held that an application filed with a copy of the plaint is also a properly framed application though the particulars of the plaint are not specifically incorporated in the application. An application under the Code of Civil Procedure is normally not to be verified but Order 33 contemplates that the application should be verified as it is also to contain particulars required in regard to plaint in the suit. In case the application contains particulars required in regard to plaint in suit then such an application, in compliance with Order 33 Rule 2, should be verified but where along with an application a plaint is filed separately which contains the particulars of the plaint with verification, such an application may not require verification as it will be too technical an interpretation of the rule. In any case the rule is directory and not mandatory as has been held by a Division Bench of A.P High Court in Bommineni Laxmi Devamma (Supra) as it relates to procedure and in a welfare state the poverty should not come in the way of person for enjoyment of his right to sue as an indigent person and a beneficial provision like Order 33 cannot be negated on such hyper technical interpretations. The object behind Order

5 33 Rule 2 for verification of the application is that the facts which are to be pleaded in the plaint,if are pleaded in the application, then they should be properly verified, however, if the plaint is filed separately along with an application and the facts stated in the plaint have been verified then the application even though it is not verified shall be maintainable and cannot be rejected under Order 33 Rule 5 as contended by the learned counsel, Mr.Lekhi for the defendants. 13. Consequently, the plea of the learned counsel for the defendants that since the application under Order 33 is not maintainable, the plaint filed along with the application will also be not maintainable and the amendment to such plaint can not be allowed is rejected. 14. The plaintiff has sought amendment in the plaint by incorporating the facts pleaded in the application about their indigent status in the proposed amended plaint which has been properly verified. They also want to include the prayer regarding claim of maintenance of Rs.1.5 lakhs from the defendants which was left inadvertently by them though various paras show that the plaintiffs have pleaded material facts seeking claim of maintenance from the defendant No The learned counsel for the defendants have also relied on Section 23 of the Hindu Adoption and Maintenance Act, 1956 to contend that the amount of maintenance to be awarded to a wife, children is to be based on various factors which are detailed in para 23(2) and (3) of the said Act. According to the learned counsel for the defendants since the plaint does not disclose these facts the amendment should not be allowed. 16. The plaintiffs contention, however, is that the material facts entitling the plaintiffs for maintenance are already pleaded in the plaint and in any case further clarifications are given in paras 53A to 53F which are sought to be included by the proposed amendment. 17. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down in various precedents. This is no more res integra that the purpose and object of Order 6 Rule 17 is to allow either party to alter or amend his pleading in such manner and on such terms as may be just but it is equally true that the amendment cannot be claimed as a matter of right and under all circumstances. However, the Courts while deciding prayer for amendment should not adopt a hyper technical approach and liberal approach should be the general rule particularly in cases where the other side can be compensated with costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation. It is also no more res integra that pretrial amendments are allowed more

6 liberally than those which are sought to be made after the commencement of trial or after conclusion thereof. Mere delay usually cannot be a ground for refusing a prayer for amendment because merits of amendment sought to be incorporated by way of amendments are not to be judged at the stage of allowing prayer for amendment. The Apex Court in G. Nagamma v. Siromanamma, (1996) 2 SCC 25, at page 26 had held that it is settled law that the plaintiff is entitled to plead even inconsistent pleas. In this case, the plaintiff were seeking alternative reliefs. The application for amendment of the plaint whereby neither cause of action could change nor the relief could be materially affected, was allowed. In another case, AIR 1995 SC 1498, Akshay Restaurant Vs. Panjanappa and others the matter pertained to amendment of plaint and the application for amendment was allowed though different stands were taken by the plaintiff. 18. This cannot be disputed that the plaintiff is entitled to incorporate the relief to claim maintenance in the suit already filed by the plaintiff as the facts have already been pleaded and the claim has not become barred by time and no other impediment has been shown by the defendants to allow the amendment of the plaint incorporating the relief for maintenance. Whether the plaintiffs shall be entitled to the claim of maintenance on the basis of the facts already disclosed in the plaint and which are sought to be incorporated by amending para 53 and incorporating paras 53A to 53F is not to be decided at the time of deciding whether the amendment should be allowed or not. 19. This also can not be disputed that the amendment proposed to the plaint which is filed along with the application to sue as indigent persons are material and relevant for the determination of real controversies between the parties. The application to sue as indigent person is maintainable though it is not verified because the particulars of plaint/pleadings have not been incorporated in the application but a separate plaint has been filed which has also been verified and on this ground the amendment proposed to the plaint can not be declined. The suit is still at a pretrial stage, as even the indigent status of the plaintiffs has not yet been determined. No prejudice shall also be caused to the defendants in the facts and circumstances, if the amendment sought by the plaintiffs is allowed. 20. Consequently the application of the plaintiffs seeking amendment to the plaint is allowed and the plaintiffs are allowed to amend the plaint incorporating the amendments proposed in the application for the amendment under order VI rule 17 of the Code of Civil Procedure. However, no cost is imposed for allowing amendment on the plaintiffs in the present facts and circumstances and also because the plaintiffs in this case are seeking to sue as indigent persons. Parties are also left to bear their own costs for the application for amendment. Amended plaint be filed.

7 IPA No.15/2005 The amended plaint already filed by the plaintiffs is taken on record. The learned counsel for the defendants seek time to file the written statements/reply. The same be filed within three weeks. Rejoinder/replication, if any, be filed within two weeks thereafter. List on Sd/- ANIL KUMAR J.