Kamal Regmi Sharma v. Nepal Bank Limited — 1986 DIGILAW 783 (ALL)

Judgment A.N. Dikshita, J. 1. THIS civil revision has been preferred against the two judgments and orders dated 28-4-1986 and 26-5-1986 passed by the IInd Civil Judge, Gorakhpur in O. S. No. 159 of 1985 titled as Nepal Bank v. Union Bank of India and others. By the order dated 28-4-1986 the trial court allowed the application filed by defendant no. 3 under Order VI Rule 17 CPC for the amendment of the written statement. By the order dated 26-5-1986 the trial court had dismissed the application filed by the defendant nos. 4 to 6 for the recall of the order dated 28-4-1986. THIS revision has thus been preferred by defendant nos. 4 to 6 against the above two judgments and orders dated 28-4-1986 and 26-5-1986. 2. FACTS giving rise to the instant revision are that plaintiff-opposite-party no. 1 filed a suit for a decree of Rs. 600000/- along with pendente lite and future interest besides the costs of the suit against Union Bank of India (defendant no. 1) M/s. Apsra Saree Centre, Golghar, Gorakhpur (defendant no. 2), M/s. Om Prakash Pramod Kumar, Golghar, Gorakhpur, (defendant no. 3), Kamal Regni (Sharma) (defendant no. 4), Shyam Kumar alias Mohan Kumar (defendant no. 5) and Gopal Bahadur K. C. (defendant no. 6). In the alternative a decree of a mandatory injunction was sought by the plaintiff (Nepal Bank) against defendant no. 1 with a direction to return to the Central Bank of India, Gorakhpur the amounts mentioned in the cheques for being credited into the current account of the plaintiff maintained by the Central Bank of India. This suit was filed on the ground that three cheques were stolen from the Butwal office of the plaintiff bank and after having been forged were presented to the defendant no. 1 Union Bank of India for collection of the amount mentioned in the cheques from the Central Bank of India. The cheques were drawn in favour of M/s. Apsra Saree Centre, Golghar, and M/s. Om Prakash Pramod Kumar, Golghar, Gorakhpur. On an inquiry by defendant nos. 2 and 3 they were informed that the cheques were forged and consequently a criminal complaint was filed by one Pramod Kumar alleging that defendant nos. 4 and 5 have handed over four cheques to them. Defendant nos. 4 to 6 were consequently arrested. It was set forth in the plaint that defendant nos. On an inquiry by defendant nos. 2 and 3 they were informed that the cheques were forged and consequently a criminal complaint was filed by one Pramod Kumar alleging that defendant nos. 4 and 5 have handed over four cheques to them. Defendant nos. 4 to 6 were consequently arrested. It was set forth in the plaint that defendant nos. 2 and 3 have nothing to do with the said amount of cheques and the defendant no. 1 is now refusing to return the amount to the Central Bank of India inspite of the service of notice. On such refusal by defendant nos. 1 to 3 to return the amount, the suit was filed. A written statement on behalf of defendant nos. 2 and 3 was filed. One Dalip Kumar Tahul signed the written statement on behalf of Apsra Saree Centre (defendant no. 2) while one Subodh Kumar signed the written statement on behalf of M/s. Om Prakash Pramod Kumar (defendant no. 3). The written statement was verified by Subodh Kumar. Later on an application was filed on behalf of defendant no. 2 to accept the enclosed written statement filed separately on behalf of defendant no. 2. By another application filed under Order VI Rule 17 CPC certain amendments were claimed in the written statement by defendant no. 3 filed by them (M/s. Om Prakash Pramod Kumar defendant no. 3). Another application for correction of certain facts in the proposed amended written statement was also made by defendant no. 3. The trial court by the judgment and order dated 26-4-1986 rejected the application for admission of the written statement filed separately on behalf of the defendant no. 2 and this written statement was thus not brought on record. However, the application filed on behalf of M/s. Om Prakash Pramod Kumar defendant no. 3 for the amendment of their written statement was allowed by the Order dated 28-4-1986. The instant revision has thus been preferred by defendant nos. 4, 5 and 6 against the order dated 28-4-1986. The defendant nos. 4 to 6 feeling aggrieved by the order dated 28-4-1986 filed an application for the recall of this order. The trial court rejected this application by the order dated 26-5-1986. This revision has also been preferred against the order dated 26-5-1986 by which the application of defendant nos. 4 to 6 for the recall of the order dated 28-4-1986 was rejected. The trial court rejected this application by the order dated 26-5-1986. This revision has also been preferred against the order dated 26-5-1986 by which the application of defendant nos. 4 to 6 for the recall of the order dated 28-4-1986 was rejected. By the order dated 26-5-1986 another application filed on behalf of the defendant no. 3 for incorporating certain corrections which had occurred due to inadvertant error was, however, allowed. 3. LEARNED counsel for the parties have been heard. It has been urged by the learned counsel for the applicants (defendant nos. 4 to 6) that in para 18 of the written statement filed on behalf of the defendant nos. 2 and 3 it was alleged that defendant nos. 4 to 6 had purchased cloth worth Rs. 6 lacs from defendant nos. 2 and 3. Necessary instructions were also given to defendant nos. 2 and 3 to keep the cloth purchased by them in bundles separately. Para 18 of the written statement filed on behalf of defendant nos. 2 and 3 is reproduced below :- "18. That the defendant nos. 4 to 6 had purchased cloths worth Rs. 6 (six) lakhs from the defendant nos. 2 and 3 and they instructed the defendant nos. 2 and 3 to keep the cloth purchased by them in bundles separately ". 4. IN the application filed on behalf of defendant no. 3 for the amendment of the written statement this para was sought to be deleted and another para in its place was sought to be substituted. This para is also reproduced below :- "1. B. That the defendant nos. 4 to 6 came to the shop of M/s. Om Prakash Pramod Kumar Golghar, Gorakhpur and they purchased cloths in pieces worth Rs. one lakh twenty five thousand and got them bound in bundles and kept in the shop of M/s. Om Prakash Pramod Kumar Golghar, Gorakhpur ". Learned counsel for the applicant Sri S. P. Srivastava has submitted that the impugned order allowing the amendment in the written statement is wholly illegal and absolutely without jurisdiction. It has been urged that the joint written statement which was filed on behalf of defendant nos. 2 and 3 cannot be amended at the instance of one party that is defendant no. 3 alone. It is very difficult to accept this contention. The court below did not allow the application of defendant no. It has been urged that the joint written statement which was filed on behalf of defendant nos. 2 and 3 cannot be amended at the instance of one party that is defendant no. 3 alone. It is very difficult to accept this contention. The court below did not allow the application of defendant no. 2 to bring its own written statement on record. It is not necessary to consider whether the court below was right or not in rejecting the application for bringing the written statement annexed thereto on behalf of defendant no. 2 but once a party has been deprived of setting forth defence then it cannot be said that the written statement so jointly filed by him cannot be permitted to be amended at the instance of the party. There is nothing on record that such an amendment was sought against the will or wish of defendant no. 2. It would appear a travesty of legal procedure and judicial conscience if a party who has been denied to set up a distinct defence is even deprived of amending the written statement though filed jointly. For the advancement of substantial justice either the written statement which was sought to be filed on behalf of the defendant no. 2 was to be brought on record and in the event of the same having not been permitted to be brought on record the amendment sought to be incorporated in the joint written statement are liable to be permitted to be incorporated may be without the consent of party who has sought to file a separate written statement. In any case such party has not opposed the amendment. The court below while rejecting the prayer of defendant no. 2 to bring its written statement on record has in the circumstances of the case rightly for the advancement of the substantial justice allowed the written statement to be amended and more so when it was not opposed by defendant no. 2 who may have filed a joint written statement. In fact there is manifestly the implied consent of the defendant no. 2. 5. LEARNED counsel for the applicant then submitted that the proposed amendment changed the nature of the defence and would give a permission to the contesting defendants to resile from the admission. There is again no merit in this submission. In fact there is manifestly the implied consent of the defendant no. 2. 5. LEARNED counsel for the applicant then submitted that the proposed amendment changed the nature of the defence and would give a permission to the contesting defendants to resile from the admission. There is again no merit in this submission. In fact by the proposed amendment a further fact was also intended to be brought to highlight the defence of defendant nos. 2 and 3. The courts are required to be extremely liberal in granting the prayer for amendment of the pleadings. It is very difficult to accept the submission on behalf of the applicant that by the proposed amendment the defence is being changed or that the defendant nos. 2 and 3 are resiling from the admission. It is well settled that a person may adopt inconsistent defence or may even set up an alternative defence. In the present case the defendants are not seeking t ? displace the plaintiff completely from the admission made by them in the written statement. In the case of M/s. Modi Spinning and Weaving Mills Co. Ltd. v. M/s. Ladha Ram and Co., AIR 1977 SC 680 it has been held that inconsistent pleas can be made in pleadings as well as a party can set an alternative pleading. However, the effect of the amendment shall not be such as to irretrievably prejudice the plaintiff of being denied the opportunity of extracting the admission from the defendants. The trial court has while exercising jurisdiction in an extremely liberal manner as held by the Supreme Court in the case of Haridas Aildas Thadani v. Godraj Rustom Kermani, AIR 1983 SC 319 allowed the amendment. Further the applicant has failed to show as to how any serious injustice or prejudice is being caused to him. It is still open to the contesting defendants to establish their case by necessary evidence. In the case of Pirgonda Hongonda Patil v. Kalgonda Shilgonda Patil, 1956 SCR 595 ( AIR 1957 SC 363 ) it was held that the test for allowing the amendment is to find out whether the proposed amendment works any serious injustice to the other side. In the case of Pirgonda Hongonda Patil v. Kalgonda Shilgonda Patil, 1956 SCR 595 ( AIR 1957 SC 363 ) it was held that the test for allowing the amendment is to find out whether the proposed amendment works any serious injustice to the other side. The Supreme Court in the case of Haridas Aildas Thadani v. Godraj Rustom Kermani (supra) has held that a revisional court ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons of compelling circumstances. 6. IN the case of Panchdeo Narain Srivastava v. Km. Jyoti Sahay, AIR 1983 SC 462 it was held that an admission made by the parties may be withdrawn or may be explained away. IN the case of Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 404 it was held by the Supreme Court after a review of a number of decisions that procedural law is intended to facilitate and not to obstruct the Court to advance substantive justice. However, the learned counsel for the respondents has contended that by the device of amendment a very important admission is being withdrawn. An admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn. The learned trial Judge while granting the application for amendment was satisfied that in order to effectively adjudicate upon the dispute between the parties, amendment of the pleading was necessary. In view of the above it is difficult to find that the court below wrongly allowed the application for the amendment of the written statement. 7. WHILE exercising the revisional jurisdiction under section 115 CPC the revisional court ought not to likely to interfere with a discretion which has been exercised by the court below in allowing the amendment of the pleadings. Such an interference may be permissible with cogent reasons or compelling circumstances have been shown. In the instant case learned counsel for the applicants have failed to show any such reason or circumstance much less cogent or compelling one warranting interference. In the case of Haridas Aildas Thadani v. Godraj Rustom Kermani (supra) it has been held that the court should be extremely liberal in granting prayer for amendment of pleading unless serious injustice or irreparable loss is likely to be caused to the other side. 8. In the case of Haridas Aildas Thadani v. Godraj Rustom Kermani (supra) it has been held that the court should be extremely liberal in granting prayer for amendment of pleading unless serious injustice or irreparable loss is likely to be caused to the other side. 8. IT is also well settled that unless there is an error in the exercise of discretion by the trial court the High Court would not interfere with the order in exercise of its revisional jurisdiction. In the case of Panchdeo Narain Srivastava v. Km. Jyoti Sahay (supra) it has been held as follows :- "And ordinarily, it is well settled that unless there is an error in exercise of jurisdiction by the trial court, the High Court would not interfere with the order in exercise of its revisional jurisdiction". In view of foregoing discussions I do not find any jurisdictional error or material irregularity having been committed by the trial court. This civil revision being misconceived deserves to be dismissed. 9. IN the result, this revision is hereby dismissed with costs to opposite party no. 4 who is defendant no. 3 in the original suit. Revision dismissed.