Jitender Kumar v. Munni Devi — 1992 DIGILAW 1632 (ALL)

JUDGMENT H.N. Tilhari, J.-This is defendant's revision under section 25 of the Provincial Small Cause Courts Act from the judgment and order dated 5-4-1991 delivered by XIV Additional District Judge, Lucknow whereby the learned Additional District Judge has rejected the defendant's application for amendment of written statement moved under Order 6 Rule 17 of the Code of Civil Procedure, in S.C.C. Suit No. 51 of 1986 Smt. Munni Devi v. Dr. Jitendra Kumar. The brief facts of the case are that the plaintiff-opposite party filed S.C.C. Suit No. 51 of 1986 for the decree of ejectment as well as for recovery of arrears of rent and damages against the defendant-revisionist. The plaintiff's case has been that the plaintiff has been the owner-landlady of House No. W/4, Sector A, Old Mahanagar, Lucknow & that the defendant-revisionist has been a tenant of a shop in the said house on a monthly rental of Rs. 400/-. The plaintiff alleged the defendant to be in arrears of rent from 1-3-1985 to 31-3-1986, which according to the plaintiff, defendant did not pay in spite of notice of demand, and, as such, the plaintiff terminated the tenancy of the defendant by notice which was served on 30-4-86 but the defendant did not comply With the said notice of demand of arrears of rent and ejectment, to the suit. The defendant filed the written statement, a copy of which has teen filed as annexue-9 to the revision application. The defendant challenged the maintainability of the suit and the right of the plaintiff to get the relief. The defendant stated that he is a tenant of the shop and alleged the shop to have been let out to him by one Shri Munna Lal, husband of the plaintiff but denied his relationship of landlord and tenant with the plaintiff. The written statement is dated 27/30-11-90. On 1-4-91 the defendant moved an application under Order 6 Rule 17 of the Code, read with section 151 of the Code. By this application defendant wanted to make amendments in paragraph 1 of the written statement as have been indicated in paragraph 3 of the amendment application. The amendment had been sought on the ground that the typing error had crept in written statement with reference to the agreed rent. By this application defendant wanted to make amendments in paragraph 1 of the written statement as have been indicated in paragraph 3 of the amendment application. The amendment had been sought on the ground that the typing error had crept in written statement with reference to the agreed rent. The learned trial court i.e. the XIV Additional District Judge, Lucknow, by order dated 5-4-1991 rejected the application for amendment of the written statement taking the view that on the facts of the case defendant has admitted the rate of rent in the original written statement and by the proposed amendment is trying to wriggle out of his admission. He further opined that the defendant hats been changing the stand to suit his convenience. The learned Additional District Judge further took the view that by the admission in the written statement a valuable right has been created in favour of the plaintiff regarding the rate of rent and the defendant cannot be permitted to take away that right from the plaintiff. Thus, having taken the view to the above effect the trial court has rejected the amendment application as mentioned above. Feeling aggrieved from the judgment and order dated 5-4-91 the defendant has filed the revision application under section 25 of the Provincial Small Cause Courts Act. Along with the revision the revisionist has filed the copies of plaint, written statement., amendment application and other documents as annexures and sworn them to be true copies of the documents in the affidavit attached to the application for interim relief. Notice of the revision having been issued to the opposite-party after the same having been admitted an interim order of stay having been granted the plaintiff-opposite party has put in appearance and filed the application supported by an affidavit for dismissal of the revision as well as For vacation or modification of the order dated 8-7-1992. It was also prayed that necessary orders may be passed after hearing the parties. It was also prayed that necessary orders may be passed after hearing the parties. Appearance having been put in by the counsel on both the sides and the counsel having agreed that the revision can be heard end disposed of on the basis of the copies of the plaint, written statement and application for amendment which have been annexed as annexures-8, 9 and 10 to the revision application and affidavit to the stay application as well as other annexures in order to avoid any delay in the disposal of revision. With the consent of the counsel for the parties I have taken up the revision for hearing immediately. I have heard Sri R.C. Gupta learned counsel for the revisionist as well as Sri A.P. Singh, holding brief for Sri R.C. Singh, Advocate as well as Sri R.C. Singh, counsel for the opposite-party also who appeared a bit later. The learned counsel for the parties have been kind enough to supply the photostat copies of the judgments on which they sought to rely in support of their respective contentions. 2. A preliminary objection has been raised by the counsel on behalf of the opposite-party that order impugned dated 5-4-91 is not a case decided and so revision under section 25 of the Provincial Small Cause Courts Act has not been maintainable. The learned counsel for the opposite-party Sri Singh submitted that this is an interlocutory order made in course of the proceedings of the suit and it does not decide the suit and so revision is not maintainable. 3. Shri R.C. Gupta, learned counsel for the revisionist contended that an order allowing or disallowing i.e. rejecting the application for amendment of the written-statement, particularly, in order to clearly raise a plea, is tantamount to a case decided as the decision or order rejecting the application for amendment decides the rights of a party to seek amendment and to amend his pleadings and it deprives the applicant seeking amendment the right or opportunity to amend his pleadings under Order 6 Rule 17 of the Code of Civil Procedure and so the order amounts to be a case decided. I have given my anxious consideration to this preliminary objection of the learned counsel for the opposite-party and I do not find any substance in it. I have given my anxious consideration to this preliminary objection of the learned counsel for the opposite-party and I do not find any substance in it. No doubt, section 25 of the Provincial Small Cause Courts Act provides that the High Court in order to examine, if the court below has acted according to law in passing an order deciding a case may call for the record of the case and pass suitable orders in the matter if it thinks fit. 4. The expression "case decided" has been subject matter of great controversy in the context of section 115 of the Code as well and in the cast Major S.S. Khanna v. Brig. F.J. Dillon (AIR 1964 SC 427), their Lordships of the Supreme Court have been pleased to observe as under : - "The expression "case" is a word of comprehensive import; it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceedings in a civil court. To interpret the expression "case" as an entire proceeding only and not a part of proceeding would be to impose a restriction upon the exercise of powers of superintendence to which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice................. The expression "case" includes a suit, but in ascertaining the limits of the jurisdiction of the High Court, there 'would be no warrant for equating it with a suit alone." 5. In the case of Rama Shanker Tewari v. Makadeo reported in (1968 ALJ 109) it has been held by a Full Bench of this Court that an order allowing or rejecting an application for amendment amounts to a case decided in terms of section 115 and same view has been taken in other case: namely, Sri Ram Narayan Jaiswal v. St. Rajeshwari Devi (AIR 1978 Alld 214) and also in the case of Satish Chandra Saxena v. Krishna Prasad Saxena reported in (AIR 1989 Alld 34). 6. When a party is refused to amend his pleadings it in effect not only stops the trial of a case which he wants to set up but its precludes him from leading evidence. Rajeshwari Devi (AIR 1978 Alld 214) and also in the case of Satish Chandra Saxena v. Krishna Prasad Saxena reported in (AIR 1989 Alld 34). 6. When a party is refused to amend his pleadings it in effect not only stops the trial of a case which he wants to set up but its precludes him from leading evidence. In this view of the matter it can definitely be said that such an order has got the tendency of affecting the right of a person in course of the trial by putting a ride on his light to produce evidence in respect of that plea which he Wants to raise. In this view of the matter I find that the order rejecting the application for amendment of pleadings amounts to a case decided for the purposes of section 25 of the Provincial Small Cause Courts Act as well as for the purposes of section 115 of the Code and, as such, the objection regarding maintainability of the revision on the ground that the order impugned does not amount to be a case decided is without substance. 7. As regards the merits of the case, the learned counsel for the revisionist submitted that expression "not" had been omitted from being typed in paragraph 1 of the written statement and instead of being written that the rate of rent is not admitted in paragraph 1 of the written statement it was typed as that the rate of rent is admitted. Learned counsel further submitted that it was a typing error as according to the defendant's counsel the rate of rent has been Rs. 225/- and not Rs. 400/- as claimed by the plaintiff, Shri Gupta, learned counsel for the revisionist contended that the amendment had been simple one to remove the typing mistake. 8. Shri Singh, the learned counsel for the opposite-party submitted that revision under section 25 of the Provincial Small Cause Courts, in the present case is not maintainable as the order impugned has been passed in accordance with law and that the amendment sought to be made in the written statement has got the tendency of allowing the defendant to change his stand and to completely displace the admission made by him in the written statement vide paragraph 1 of the written statement as regards the rate of rent and that the amendment application had not been bona fide. He submitted that as the amendment had the effect of permitting the defendant to change the nature of his defence and withdraw his admission the trial court was quite justified and it did act in accordance with law in rejecting the amendment application and so the revision on merits is liable to be dismissed. The learned counsel for the opposite-party made reference to the decision of the Supreme Court reported in M/s Modi Spinning and Weaving Mills Co. Ltd. v. M/s Ladha Ram & Co. ( AIR 1977 SC 680 ). Before I proceed to examine the respective contentions I think it just and proper to refer to the provisions of Order 6 Rule 17 of the Code. Order 6 Rule 17 CPC reads as under :- "17. Amendment of pleadings.-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings 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." 9. A perusal of Order 6 Rule 17 of the Code per se shows that all amendments that are necessary or that may be necessary for the purposes of determining the real question in controversy between the parties, have to be allowed at any stage of the proceedings subject to the terms as the Court deems lit and proper. It is well settled that the court should be extremely liberal in granting the prayer of amendment of pleading unless serious injury or irreparable loss is caused to the other side, and there is absolutely no question oi any injustice being done or caused to other side if can be compensated by awarding the cost. 10. It is well settled that the court should be extremely liberal in granting the prayer of amendment of pleading unless serious injury or irreparable loss is caused to the other side, and there is absolutely no question oi any injustice being done or caused to other side if can be compensated by awarding the cost. 10. In the case of P.H. Patel v. K.S. Patel ( AIR 1957 SC 363 ) Hon'ble Supreme Court has laid it down as under "All amendments ought to be allowed which satisfy 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 that amendment should be refused where other party cannot be placed in same position as if pleading had been originally correct ; but amendment would cause him any injury which could not be compensated in cost The ultimate test therefore still remains, can amendment be allowed without injustice to the other side." Reference in this regard can also be made to the decision of Supreme Court in Haridas Aildas v. Godraj Rustom ( AIR 1983 SC 319 ). 11. Before proceeding a bit further it is just and proper to make a reference to paragraph 1 of the plaint which reads as under :- "That the plaintiff is the owner and landlady of House No. W/4, Sector 'A', Old Mahanagar, Lucknow and the defendant was tenant of an outershop on the ground floor and bounded at the plaint on a monthly rent of Rs. 400/-. Paragraph 1 of the written statement reads as under :- "The tenancy of the defendant is admitted. The husband of the plaintiff, Shri Munna Lal as landlord ha." let out the premises in suit to the defendant. The rate of rent is admitted.' Paragraph 3 of the amendment application indicates the amendment which is being sought, to be introduced in the written statement, reads as under:- "That the following consequential amendments arise in the written statement : (a) That in para 1 last line the word 'not" may kindly be added between the words "is" and "admitted" and thereafter the following words may kindly be added : "The rate of rent as settled has been Rs. 225/- per month which the answering defendant has always been paying in respect of the premises in suit and duly acknowledged by the applicant and her family members." 12. It is, no doubt, well settled principle of law that an admission is a piece of evidence on which a party can rely against the person making the admission unless and until the same has been successfully withdrawn or shown or proved to be erroneous or incorrect. Rule 5 of Order 8 of the Code provides that every allegation of fact made in plaint if not denied specifically or by necessary implication or stated to be not admitted in plea-dings by defendant it shall be taken to be admitted except against the person under disability. Proviso to sub rule (1) of Rule 5 of Order 8 of the Code provides that the Court may in its discretion require any factso admitted to be proved otherwise than by such admission. A reading of this proviso shows that plaintiff may be required to prove otherwise than by such admission the allegation of fact in the plaint which are taken to be admitted on account of want of specific denial or on account of want of denial by necessary implication or on account of want of statement in the pleadings of defendant to be not admitted. In regard to such allegation of fact made in the plaint which are deemed to be admitted or which are taken to have been admitted under proviso to this rule the court may put the party i.e. the plaintiff to prove this fact otherwise than by an admission. That as per the allegations of paragraph 1 of the plaint the plaintiff has clearly stated that the defendant was the tenant of a outer shop on the ground floor and bounded at the foot of the plaint on a monthly rent of Rs. 400/-. That as per the allegations of paragraph 1 of the plaint the plaintiff has clearly stated that the defendant was the tenant of a outer shop on the ground floor and bounded at the foot of the plaint on a monthly rent of Rs. 400/-. The defendant in his written statement after admitting the relationship of landlord and tenant in between plaintiff and himself and stating the shop in dispute was let out to him by plaintiff's husband in paragraph 1 of the written statement appears to have stated that "the rate of rent is admitted." The question is whether the defendant can be allowed to amend this portion or this part of his pleading by adding the expression "not" after the expression "is" and before the expression "admitted" because if he can be allowed to add expression "not" before the expression "admitted" then it can be said there will be no difficulty in allowing him to state his specific case regarding the rate of rent us stated in paragraph 3 of the application for amendment. The defendant-revisionist has filed a copy of his reply to the notice of the plaintiff's counsel to show that from before the filing of the suit or written statement the defendant's case has been that the agreed rent between the parties had all along been Rs. 225/- per month and not Rs. 400/-. Learned counsel for the defendant-revisionist has invited my attention to that notice in order to show that rate of rent has been Rs. 400/- and it has been the ease of defendant's that agreed rent between the parties has all along been Rs. 225/- per month and that there is typographical & accidental omission or error in the typing in paragraph 1 of the written statement and due to that error expression "not" had been omitted in paragraph 1 of the written statement with reference to rate of rent. A perusal of the copy of the notice, no doubt, shows that the stand of the defendant was that the rate of rent was Rs. 225/- and not Rs. A perusal of the copy of the notice, no doubt, shows that the stand of the defendant was that the rate of rent was Rs. 225/- and not Rs. 400/- per month as alleged by the plaintiff and in the circumstances this notice leads one to think that omission of expression "not" in paragraph 1 with reference to rate of rent may be accidental omission and really there had been dispute between the parties regarding the rate of monthly rent and same was known to opposite-party-plaintiff. 13. The learned trial court has approached this question in the following manner and observed as under :- "The defendant had moved an amendment application earlier also which is A-41. In this application the defendant proposed the amendment that the defendant has always been paying rent of Rs. 225/- per month which was duly acknowledged by the plaintiff and her family members in accepting the money orders sent by the defendant. When during arguments of this application, the plaintiff confronted that the defendant should ; how the receipts or the money order coupon acknowledging monthly rent of Rs. 225/- the defendant did not press this application and moved the fresh application B-43, Now the defendant stated that the money orders sent by the defendant were refused illegally by the plaintiff and her husband. This clearly shows that the proposed amendment is not bona-fide and he continues to improve his case according to his own convenience." 14. It appears that the trial court while dealing with the amendment application and the question whether it should be allowed or not travelled the sphere of evidence in opining that as the defendant could not produce receipts or money order coupons acknowledging monthly rent of Rs. 225/-at the time when he was asserting on both the occasions that agreed rate of rent was Rs. 225/- he should not be allowed to amend the pleadings because in the opinion of the trial court in such circumstances, the amendment sought was not bona fide. 225/-at the time when he was asserting on both the occasions that agreed rate of rent was Rs. 225/- he should not be allowed to amend the pleadings because in the opinion of the trial court in such circumstances, the amendment sought was not bona fide. This approach of the trial court With reference to amendment implication to reject the same on ore of the grounds that the person failed to produce the evidence in proof of the allegations or averments to be added in the pleadings by way of amendment should be taken to be not acting bona fide and the application for amendment should be rejected is that it in law did not act in accordance with law because it forgot the real dispute and the real dispute is about the rate of rent between the parties apart from other things as well as appears from the other allegations, the notice and the reply of the notice. This basic material issue it means had, been between the parties about the rate of rent and it required to be decided & finally determined. So far as the question of evidence and its sufficiency is concerned, it is not the stage when this question principally or material point in dispute is to be taken cote of while dealing with the amendment application and while considering the question if a party should be allowed to amend his pleadings. Sufficiency or otherwise of the evidence is a question relating to the stage of trial. The basic question to be considered while dealing with the amendment application is if the record indicates the matter or point in issue or dispute and in order to determine it, if it is necessary to allow a party to amend his pleadings and to remove accidental emissions which are necessary in order to enable the court to decide the dispute finally between the parties, the amendment has to be allowed irrespective of the question of sufficiency or otherwise of evidence in respect of the plea sought to be added until and unless it is shown by the other side that the other party is not going to suffer irreparable loss which cannot be compensated in terms of money. 15. 15. Section 58 of Indian Evidence Act along with proviso thereto reads as under :- "No fact need be proved in any proceeding which parties thereto or their agents agree to admit at hearing, or which, before the hearing, they agree to admit by a writing under their hands or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings. Provided the court may in its discretion require the facts admitted to be proved otherwise than by such admission." 16. If the case of Panchdeo Narain Srivastava v. Km. Joyti Sahay reported in ( AIR 1983 SC 462 ), while dealing with similar arguments as those of the respondent that by a device of amendment a very important admission is being withdrawn, their Lordships of the Supreme Court observed and laid down as under - "An admission 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." 17. This being the position of law that an admission made by a party can be withdrawn or to be proved to be incorrect, or may be explained away in the course of trial there does not appear any justification to say that by allowing the amendment and by correcting the accidental omission of expression "not" in paragraph 1 of the written statement any irreparable loss or injury is going to be caused or would have been caused to the plaintiff, instead the real dispute between the parties would come before the court for the purpose of determination of the real issue. The procedural law is intended to facilitate the trial and the course of substantive justice or substantial justice and is not intended to obstruct the course of substantive justice. A rule of procedure as has been observed by the Supreme Court in Manohar Lal v. N.B.M. Supply ( AIR 1969 SC 1267 ) are meant to be hand maid to the administration of justice. A rule of procedure as has been observed by the Supreme Court in Manohar Lal v. N.B.M. Supply ( AIR 1969 SC 1267 ) are meant to be hand maid to the administration of justice. Howsoever negligent and careless an omission may have been the proposed amendment if it is necessary for the proper decision of the case and determination of real issues involved therein between the parties the amendments ought to be allowed subject to condition that the omission by the party applying for amendment had not caused injury to his opponent which cannot be compensated in terms of money. Thus 1 find that the order rejecting the amendment application has beer, passed not in accordance with the well settled principles of law as regards amendment and the application for amendment has been rejected on the basis of the question of sufficiency or insufficiency of evidence of the defendant in proof of his case, sought to placed before the court by way of amendment. The ease relied upon by the opposite-party's learned counsel Shri Singh i.e. Modi Spinning & Weaving Mills Co. Ltd. v. M/s Ladha Ram & Co. ( AIR 1977 SC 680 ) does not apply to the facts of the present case as well as it does not appear to declare the law to be that it is not open to a party to withdraw the alleged admission or to show the said admission to be wrong or erroneous nor does it lay down that a party who opponent had made an admission in a case before hearing of case, in writing, cannot be required to prove, the allegation of fact made by him in his pleading, and alleged to be admitted or admitted, otherwise than by admission of his opponent irrespective of proviso to section 58 of Evidence Act and proviso to Or. VIII Rule 5 of the, Code and if is required to prove the fact as under proviso the party relying on alleged admission will be put to such loss which cannot be compensated by cost. There is no discussion of or reference to section 58 or to proviso of section 58 of Evidence Act nor to proviso to Order VIII Rule 5 CPC. There is no discussion of or reference to section 58 or to proviso of section 58 of Evidence Act nor to proviso to Order VIII Rule 5 CPC. The decision in the case of Modi Spinning & Weaving Mills ( AIR 1977 SC 680 ) does not appear to declare law on the subject if a party can be allowed to amend his pleading so as to withdraw an admission and it comes within frame work of Latin expression "per incuriam" or rule of 'sub Selantio' as explained by the Supreme Court in the case of U.P. State v. Synthetics & Chemicals Limited ( 1991 (4) SCC 139 ) and in the case of Punjab Land Development & Reclamation Corporation Ltd. v. Presiding Officer Labour Court ( 1990 (3) SCC 682 ) in Which Hon'ble Supreme Court has laid it down that "As regards judgments of Supreme Court tendered in ignorance of relevant constitutional or statutory provisions on subjects controlled by them, it is true that Supreme Court may not be said to declare the law on those subjects if relevant provisions were really present to its mind and that a conclusion without reference to relevant provisions of law is weaker than such observation." 18. In view of the principle of law laid down in the case of Ganesh Trading Co. v. M/s Moji Ram ( AIR 1978 SC 484 ) which has been followed with the approval in the case of Panchdeo Narain Srivastava ( AIR 1983 SC 462 ) and also in Narayan v. Gopal reported in ( AIR 1960 SC 100 ) and Kishori Lal v. Chatti Bai ( AIR 1959 SC 504 ) it is well setted that an admission made by a party may be withdrawn or may be explained away or may be shown to be incorrect. 19. When this is the position of law as regards admission it may be said that during the course of trial defendant can well even without amendment allege and prove that the agreed rate of rent had not been Rs. 400/- per month and could produce the evidence which could show his admission to be wrong. 19. When this is the position of law as regards admission it may be said that during the course of trial defendant can well even without amendment allege and prove that the agreed rate of rent had not been Rs. 400/- per month and could produce the evidence which could show his admission to be wrong. Even a bare perusal of section 58 of Evidence Act along with proviso to that section as well as that Order VIII Rule 5 particularly the proviso thereto indicates and shows a court can in its judicious discretion put a party to prove the allegation of fact made by him in his pleading by material evidence otherwise than by admission thereof by the other party i.e. his opponent either on or before hearing as held by Division Bench of this Court i.e. Chief Court of Oudh in Bhagwandin v. Sheoraj (AIR 1931 Oudh 321). So the admission cannot be said to be conclusive of facts alleged and admitted before hearing and so admission does not appear to confer an absolute right or a right to a party in respect of facts admitted or alleged to have been admitted. Thus considered, amendment in pleading allowing one to withdraw his admission erroneously made cannot be said to cause irreparable loss or injury. It will only require the other party to prove the facts alleged or stated in pleading by leading material evidence other than alleged admission. So loss or injury can be said to be nothing but one which can be compensated in terms of money or costs. 20. The amendment sought in the present case is for the benefit of the plaintiff also to meet ease and the real dispute and has tendency to put him in guards to produce evidence in support of his ease about the rate of rent. In such circumstance if amendment would have been allowed the proceedings of the case would not have been delayed in the present case, and no injury would have been caused to the plaintiff which could be said to have been caused due to delay. As instead amendment sought gives plaintiff an opportunity to be vigilant to produce all material admissible evidence to prove the rate of rent alleged by the plaintiff in the plaint so the loss, if any, cannot be said to be irreparable or one which cannot be compensated by costs. As instead amendment sought gives plaintiff an opportunity to be vigilant to produce all material admissible evidence to prove the rate of rent alleged by the plaintiff in the plaint so the loss, if any, cannot be said to be irreparable or one which cannot be compensated by costs. Really, the loss on account of some delay in making application for amendment can be compensated in terms of money. In this view of the matter and in order to enable an affective trial of the suit and for proper determination of issues involved the amendment application deserves to be allowed and the order of the trial court dated 5-4-1991 needs to beset aside as the approach of the court below, in dealing with the application for amendment has not been in accordance with law and letter and spirit of the provisions of Order 6 Rule 17 of the Code. 21. In the result, the revision is allowed with costs and the trial court is directed to allow the defendant to amend and incorporate the amendments in the written statement in the light of allegations made in paragraph 3 of the application for amendment subject to the conditions of payment of the costs amounting to Rs. 550/- as costs of amendment or delay in proceedings which may be payable to the plaintiff Cost shall be paid directly to the plaintiff's counsel or the plaintiff but amendment shall be incorporated only after the costs have been paid. The revision is thus allowed and the cost of this revision is made easy.