2025:UHC:343-DB UHIGH COURT OF UTTARAKHAND AT NAINITAL UAppeal From Order No. 4 of 2025 U07 January, 2025 Kamaldeep Industries Registered With Ministry of Micro Small And Medium Enterprises --Appellant Versus 1: Dhanshree Agro Products Private Limited 2: Sushri Shreya Sahni 3: Naresh Pal Singh 4: Suresh Sharma 5: Sardar Prabhjeet Singh Sohal 6: Assistant Sugarcane Commissioner 7: Excise Commissioner 8: State Of Uttarakhand 9: M/s Om Enterprises 10: M/s J. S. Enterprises --Respondents ---------------------------------------------------------------------- Presence:- Mr. Arvind Vashisth, learned Senior Counsel assisted by Mr. Hemant Mahra and Ms. Devanshi Joshi, learned counsel for the appellant. Mr. P.C. Bisht, learned Additional Chief Standing Counsel for the State of Uttarakhand Mr. Sagar Kothari, learned counsel for respondent no. 1. ---------------------------------------------------------------------- Hon'ble Mr Justice G. Narendar, C.J. Hon'ble Mr. Manoj Kumar Tiwari, J. UJUDGMENTU : (per Sri Manoj Kumar Tiwari, J.) 1. In this appeal, filed under Section 13 (1-A) of Commercial Courts Act, 2015, order dated 21.12.2024 passed by learned Commercial Court, Dehradun is challenged. By the said order, application filed by appellant, seeking leave to amend the plaint, is rejected. 2. Appellant filed a suit for injunction alleging that he has been purchasing molasses from different sugar 1 2025:UHC:343-DB mills, including defendant no. 1, for manufacturing animal feed. Pursuant to an ‘agreement to sell’ entered into between him and respondent no. 1, appellant made advance payment of ₹8,64,65,581.30, however, respondent no. 1, instead of delivering molasses to the appellant, has started process of selling 35615.20 quintal of molasses to respondent no. 9. Thus prayed that permanent injunction be granted restraining defendant Nos. 1 & 2, their agents, servants etc. from transferring the molasses, stored in Steel Tank No. 2 in favour of defendant No. 9 or any other person. 3. After filing of the suit, appellant sought leave to amend the prayer, which was granted by learned Commercial Court vide order dated 19.12.2024. Appellant thereafter filed another application under Order 6 Rule 17 CPC for amending the plaint; whereas defendant nos. 6 & 8 filed application under Order 7 Rule 11 CPC for rejection of plaint. Learned Commercial Court rejected appellant’s amendment application vide order dated 21.12.2024 while deferring disposal of application under Order 7 Rule 11 CPC filed by defendants. 4. Application under Order 6 Rule 17 CPC filed by the appellant was rejected on the ground that (i) amendment sought to be incorporated in the plaint are not of essential nature and (ii) without mediation, no suit can be entertained in view of Section 12A of the Commercial Courts Act, and if relief clause is permitted to be amended, then bar of Section 12A would become redundant. 2 2025:UHC:343-DB 5. Mr. Arvind Vashisth, learned Senior Counsel appearing for the appellant submits that the grounds of rejection are unsustainable; learned Court has erroneously examined merits of the amendment sought to be incorporated, which is impermissible; suit was filed only in the month of August, 2024 in which issues are also not settled, therefore, proviso to Rule 17 Order 6 is also not attracted; nature of the suit is not going to change by amendment, as relief of declaration only is sought to be added. He further submits that plaintiff is entitled to place his entire case before the court and the amendment sought is necessary for determining the real questions in controversy and amendment, if made, will not cause injustice or prejudice to the other side. He submits that the object of Order 6 Rule 17 CPC is to avoid multiplicity of suits and to achieve that purpose, a liberal approach should be adopted. He further submits that although amendment cannot be claimed as a matter of right, but it is equally true that courts while deciding such prayer should not adopt a hyper-technical approach and liberal approach has to be preferred particularly, in cases where the other side can be compensated with costs. He further submits that rejection of application on the ground that mediation has not taken place, cannot be a valid ground and learned Commercial Court has pre-judged the objection regarding mediation taken by the defendant. 6. Per contra, Mr. Sagar Kothari, learned counsel appearing for respondent no. 1 submitted that amendment application moved by the appellant was rightly rejected and the statutory bar contained in 3 2025:UHC:343-DB Section 12-A of the Commercial Courts Act cannot be overlooked. 7. Order 6 Rule 17 CPC, dealing with amendment of pleadings, is reproduced below:- “17. Amendment of pleadings.-The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” 8. Rule 17 Order 6 CPC declares that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also states that such amendment should be necessary for the purpose of determining the real question in controversy between the parties. The proviso enacts that no application for amendment should be allowed after the trial is commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter for which amendment is sought, before commencement of trial. 9. The object of the Rule is that Court should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties, provided it does not cause injustice or prejudice to the other side. 4 2025:UHC:343-DB 10. Rule 17 Order 6 CPC consists of two parts. Whereas the first part is discretionary and leaves it to the Court to allow amendment of pleadings. The second part is imperative and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real questions in controversy between the parties. 11. In the case of Rajesh Kumar Aggarwal and others Vs. K.K. Modi and others, reported in (2006) 4 SCC 385, Hon’ble Supreme Court held that while considering prayer for amendment, Court should not go into the correctness or falsity of the case in the amendment. It was further held that Court should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated are not to be adjudged at the stage of allowing the prayer for amendment. Para 17, 18 and 19 of the said judgment are reproduced below:- “17. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit. 18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinions and entered into a discussion on merits of the amendment. In cases like this, the court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. It is settled by a catena of decisions of this 5 2025:UHC:343-DB Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court. 19. While considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case. 12. In the case of B.K. Narayana Pillai v. Parameswaran Pillai, reported in (2000) 1 SCC 712, Hon’ble Supreme Court held that Courts while deciding a prayer for amendment in the pleading should adopt a liberal and not hyper-technical approach. It was further held that technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties and further that amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation. 13. The aforesaid power of the Court, however, is subject to the rider put by proviso to Order 6 Rule 17 CPC, which provides that no application for amendment should be allowed after commencement of trial, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter for which amendment is sought, before commencement of the trial. 14. In Salem Advocate Bar Association, T.N. Vs. Union of India, reported in (2005) 6 SCC 344, Hon’ble Supreme Court held that the object of proviso is to 6 2025:UHC:343-DB prevent frivolous applications which are filed to delay the trial. 15. Ultimately, the duty of courts is to administer justice between the parties involved, rather than to inflict punishment upon them. The Courts are empowered to allow amendments or modifications to the pleadings, in order to serve the broad objective of ensuring comprehensive adjudication of all disputes. Order 6 Rule 17 CPC is aimed at advancing the objectives of justice rather than defeating them. 16. Hon’ble Supreme Court, in the case of Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, 1957 SCC OnLine SC 65 : AIR 1957 SC 363], discussed the tests which have to be applied while considering prayer for amendment of a plaint. It observed as follows: “10. Learned counsel for the appellant referred us to the decision in Kisandas Rupchand v. Rachappa Vithoba Shilwant [Kisandas Rupchand v. Rachappa Vithoba Shilwant, 1909 SCC OnLine Bom 84 : ILR (1909) 33 Bom 644] , 655 and placed great reliance on the observations of Beaman, J. at p. 655: In my opinion, two simple tests, and two only, need to be applied, in order to ascertain whether a given case is within the principle. First, could the party asking to amend obtain the same quantity of relief without the amendment? If not, then it follows necessarily that the proposed amendment places the other party at a disadvantage, it allows his opponent to obtain more from him than he would have been able to obtain but for the amendment. Second, in those circumstances, can the party thus placed at a disadvantage be compensated for it by costs? If not, then the amendment ought not, unless the case is so peculiar as to be taken out of the scope of the rule, to be allowed.” 17. The view taken in aforementioned judgment has been followed in Railways v. Bhagwan Das [Railways v. Bhagwan Das, (2008) 8 SCC 511], wherein, Hon’ble Supreme Court stated that above 7 2025:UHC:343-DB stated principle still holds the field. It was held that all amendments ought to be allowed if they satisfy twin conditions, firstly, no injustice is caused to the other side and secondly, the amendments are necessary for the purpose of determining the real issue in dispute between the parties. It was further held that amendments are to be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in terms of costs. These are the broad principles to be kept in mind while dealing with an application under Order 6 Rule 17 CPC. 18. Further, in the case of State of M.P. v. Union of India [State of M.P. v. Union of India, (2011) 12 SCC 268 : (2012) 2 SCC (Civ) 478], Hon’ble Supreme Court reiterated the scope and extent of powers under the above said provision, and observed as follows: “10. This Court, while considering Order 6 Rule 17 of the Code, in several judgments has laid down the principles to be applicable in the case of amendment of plaint which are as follows: (i) Surender Kumar Sharma v. Makhan Singh [Surender Kumar Sharma v. Makhan Singh, (2009) 10 SCC 626 : (2009)4 SCC (Civ) 294], at para 5:(SCC p. 627, para 5) “5. As noted herein earlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it 8 2025:UHC:343-DB can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment.” (ii) Railways v. Bhagwan Das [Railways v. Bhagwan Das, (2008) 8 SCC 511] , at para 16: (SCC p. 517, para 16) “16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, 1957 SCC OnLine SC 65 : AIR 1957 SC 363] which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side; and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.” (iii) Usha Devi v. Rijwan Ahamd [Usha Devi v. Rijwan Ahamd, (2008) 3 SCC 717 : (2008) 1 SCC (Civ) 922] , at para 13: (SCC p. 722, para 13) “13. Mr Bharuka, on the other hand, invited our attention to another decision of this Court in Baldev Singh v. Manohar Singh [Baldev Singh v. Manohar Singh, (2006) 6 SCC 498] . In para 17 of the decision, it was held and observed as follows: (SCC pp. 504-505, para 17) ‘17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17CPC which confers wide power and unfettered discretion on the court to allow an 9 2025:UHC:343-DB amendment of the written statement at any stage of the proceedings.’” (iv) Rajesh Kumar Aggarwal v. K.K. Modi [Rajesh Kumar Aggarwal v. K.K. Modi, (2006) 4 SCC 385] , at paras 15 and 16: (SCC pp. 392-393, paras 15 and 16) “15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.” (v) Revajeetu Builders & Developers v. Narayanaswamy & Sons [Revajeetu Builders & Developers v. Narayanaswamy & Sons, (2009) 10 SCC 84 : (2009) 4 SCC (Civ) 37] , at para 63: (SCC p. 102, para 63) “63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.” The above principles make it clear that courts have ample power to allow the application for amendment of the plaint. However, they must be satisfied that the same is required in the interest of justice and for the purpose of determination of real question in controversy between the parties.” 10 2025:UHC:343-DB 19. In the case of Life Insurance Corporation of India v. Sanjeev Builders Private Limited and Another, (2022) 16 SCC 1, Hon’ble Supreme Court while considering the scope of powers under Order 6 Rule 17 CPC has held as under: “18. It is well settled that the court must be extremely liberal in granting the prayer for amendment, if the court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment, shall suffer irreparable loss and injury. It is also equally well settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the court to allow an amendment if it is of the view that allowing of an amendment shall really subserve the ultimate cause of justice and avoid further litigation.” 20. In the case of Life Insurance Corporation of India (supra), after considering various judgments rendered from time to time, Hon’ble Supreme Court summarized the legal position in para 71 of the said judgment, which is extracted below: “71. Our final conclusions may be summed up thus: 71.1. Order 2 Rule 2CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order 2 Rule 2CPC is, thus, misconceived and hence negatived. 71.2. All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order 6 Rule 17CPC. 71.3. The prayer for amendment is to be allowed: 71.3.1. If the amendment is required for effective and proper adjudication of the controversy between the parties. 71.3.2. To avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment do not seek to withdraw any clear admission made by the party which confers a right on the other side, and (c) the amendment does not raise a time-barred claim, resulting in divesting of the other side of a valuable 11 2025:UHC:343-DB accrued right (in certain situations). 71.4. A prayer for amendment is generally required to be allowed unless: 71.4.1. By the amendment, a time-barred claim is sought to be introduced, in which case the fact that the claim would be time-barred becomes a relevant factor for consideration. 71.4.2. The amendment changes the nature of the suit. 71.4.3. The prayer for amendment is mala fide, or 71.4.4. By the amendment, the other side loses a valid defence. 71.5. In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. 71.6. Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. 71.7. Where the amendment merely sought to introduce an additional or a new approach without introducing a time- barred cause of action, the amendment is liable to be allowed even after expiry of limitation. 71.8. Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. 71.9. Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. 71.10. Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. 71.11. Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi [Vijay Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897])” 21. In the case of Dinesh Goyal v. Suman Agarwal (Bindal), 2024 SCC OnLine SC 2615, Hon’ble Supreme 12 2025:UHC:343-DB Court reiterated that the Courts should adopt a liberal approach in granting leave to amend the pleadings, however, the same cannot be in contravention of the statutory boundaries placed on such power. 22. In the case of Ganesh Prasad v. Rajeshwar Prasad, 2023 SCC OnLine SC 256 Hon’ble Supreme Court has considered the question whether a Court can allow the plaintiff to amend the plaint on the basis of defence taken by the defendant. Para 47 of the said judgment is reproduced below:- “47. In the event, if the pleas sought to be introduced by plaintiff by way of an amendment is also the plea, which the defendant has set up in his written statement and such a plea of the plaintiff is an alternative plea, even though it is inconsistent with the original plea, since there is no prejudice caused to the defendant, the Court is not precluded from allowing the amendment.” 23. From the aforesaid judgments, it is revealed that a liberal approach has to be adopted while considering application seeking amendment of pleading and amendment should be allowed where it is necessary for deciding the real question in controversy between the parties. 24. In the present case, learned Commercial Court has examined merits of the amendment sought to be made by the appellant which was not a right thing to do at that stage. The amendment cannot be said to be belated one as the suit is filed only in the month of August, 2024 and issues are yet to be settled in the suit, therefore, proviso to Rule 17 Order 6 is not attracted. The amendment sought, if permitted, is not going to change the nature of the suit and no prejudice is going to be caused to the other side by allowing the 13 2025:UHC:343-DB prayer for amendment. The amendment appears to have been necessitated in view of the order dated 08.11.2024, passed by Competent Authority on the application made by respondent No. 1, whereby he was permitted to sell 25 percent of the molasses in open market. The amendment sought to be made appears to be necessary for determining the real question in controversy, therefore, with a view to avoid multiplicity of suit, the amendment sought by the plaintiff/appellant deserves to be allowed. 25. Learned counsel for the respondent submitted that amendments sought by appellant are aimed at answering the pleading made in the written statement, therefore Commercial Court was justified in rejecting the prayer for amendment. Para 47 of the judgment rendered in the case of Ganesh Prasad (supra), is a complete answer to the said objection. Since no prejudice is going to be caused to the defendant by permitting the plaintiff to amend his plaint, therefore, merely because plaintiff wants to introduce certain pleas by way of an amendment in the plaint, which the defendant has setup in his written statement, will not be a valid ground for rejecting the prayer for amendment made by the plaintiff. 26. Since application filed under Order 7 Rule 11 by the defendants is yet to be considered, therefore bar of Section 12A of Commercial Courts Act can be examined by Court concerned while deciding the said application. 27. For the aforesaid reasons, the order impugned in this appeal deserves to be set aside and is hereby set aside. The application under Order 6 Rule 17 CPC filed 14 2025:UHC:343-DB by appellant (Paper No. 99B) is allowed, subject to cost of Rs. 20,000/- payable by appellant to the defendants. __________________ G. NARENDAR, C. J. ________________________ MANOJ KUMAR TIWARI, J. Dt: 07.01.2025 Aswal/Mahinder 15 MAHINDER SINGH Digitally signed by 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 Date: 2025.01.10 18:55:20 +05'30'