ASHOK K. GHOSH v. ROTARY INTERNATIONAL — 1992 DIGILAW 509 (DEL)

V. B. Bansal ( 1 ) THIS order will dispose of four I. As. , viz. IAs. 9743. 9744, 11193 and 11194/92. moved by the defendants 1 and 2 under Order6, Rule 17, read with Section 151 CPC. ( 2 ) BY way of IA 9743/92 a prayer has been made for amendmentof the written statement while IA 9744/92 is for amendment of the replyto the application under Order 39, Rules 1 and 2 and Section 151 of the CPC. By way of IA 111 93/92 defendants 1and2 have prayed for amendment ofia 9744/92 while IA 11194/92 seeks amendment of IA 9743/92. ( 3 ) MR. Ashok K. Ghosh, plaintiff filed a suit for declaration andpermanent injunction against three defendants Defendent No. 1 is Rotaryinternational District 3010 while Defendant No. 2 is Mr. J. R. Jindal,district Governor, Rotary International. Defendant No. 3 is Mr. Deepakkapoor who is stated to have been elected to the post of District Governorof District 3010 on 9. 2. 1992, which election has been challenged in this Suit. The plaintiff has claimed the following reliefs in the Suit :- 1sl 1. To declare the election of defendent No. 3 to the office/postof District Governor of District 301 Oof defendant No. 1 heldon 9. 2. 92 as void, illegal and inoperative ; and 2. To pass a decree of permanent injunction restraining defendantno. 3 from acting as District Governor of Rotary District 3010of Rotary International for the Rotary year 1993-94 in pursuance of election held on 9. 2. 1992. ( 4 ) THIS Suit came up for hearing on 25. 5. 1992 when summons inthe suit and notice of the application for injunction, viz. IA 8718/92 wereissued for 8. 7. 1992. The case came up for hearing on 8. 7. 92 and wasadjourned to 24. 7. 92 to enable the plaintiff to file replication and rejoinder. It may be noted that the written statement and reply were filed by defendants 1 and 2 on 7. 7. 92. Before the case could be taken up on 24. 7. 92 IAs. 9743 and 9744/92 were filed by defendants 1 and 2 on 20. 7. 92. 7. 92 to enable the plaintiff to file replication and rejoinder. It may be noted that the written statement and reply were filed by defendants 1 and 2 on 7. 7. 92. Before the case could be taken up on 24. 7. 92 IAs. 9743 and 9744/92 were filed by defendants 1 and 2 on 20. 7. 92. These applications have been opposed by the learned Counsel for the plaintiff, who hasinter alia pleaded that the applications for amendment have been movedwith an ulterior motive to cause prejudice to the plaintiff and to prolongthe determination of the matter, which is of utmost urgency. It has furtherbeen pleaded that the application seeking amendment contained evasivedenial, which is barred by Order 8, Rule 4 Civil Procedure Code and that the defendantshave chosen to incorporate evidence in contravention of the provisionsunder Order 6, Rule 2 and on this ground alone the applications are liableto be dismissed. ( 5 ) THE plea taken up by the defendants 1 and 2 had been that theamendments sought are by way of further elucidation of pleas already taken,besides taking a new plea with regard to the Suit being barred by principlesof acquisence. waiver and estoppel. It has also been pleaded that no newfacts are being pleaded by way of amendment and the application has beenmoved at the earliest. ( 6 ) I have heard the learned Counsel for the plaintiff and defendants1 and 2. I have also carefully gone through the pleadings as also the documents. As already referred to, the defendants 1 and 2 have filed theirwritten statement as also the reply to the application for injunction beforethe date fixed in the Suit. Replication and rejoinder have not been filedas vet by the plaintiff and, thus, there has not been any delay in movingthe application. ( 7 ) IT would at this stage be appropriate to refer to various factswhich have to be kept in view while deciding applications for amendmentof the pleadings. They may conveniently be formulated as under ;- 1. Has there been a delay in moving the application for a mendment? 2. Whether the proposed amendment would be barred by limitation ? 3. Whether the proposed amendment would be necessary forjust decision of the case ? 4. Whether the application for amendment has been moved witha view to delay the proceedings ? 5. Whether the opposite party has been taken by surprise ? 2. Whether the proposed amendment would be barred by limitation ? 3. Whether the proposed amendment would be necessary forjust decision of the case ? 4. Whether the application for amendment has been moved witha view to delay the proceedings ? 5. Whether the opposite party has been taken by surprise ? 6. Whether the proposed amendment would set up a new case 7 7. Whether the amendments could be allowed without injusticeto the opposite party ? 8. Procedural law is intended to facilitate and not to obstruct thecourse of substantive justice. 9. Whether the opposite party would be aware of the controversy so as to enable the Court to determine the real issuesbetween the parties. ( 8 ) KEEPING in view these facts it would now be appropriate to consider the proposed amendments. It is not disputed that the amendmentsproposed in the reply to the application under Order 39, Rules 1 and 2 andsection 151 Civil Procedure Code are similar to the amendments proposed in the writtenstatement of defendants 1 and 2. ( 9 ) BY way of the proposed amendments defendants 1 and 2 haveprayed for permission to add preliminary objection No. 12 to make addition in para 12 and to add para No. 13 as preliminary objection. Submissions of learned Counsel for the plaintiff had been that the proposed amendment would introduce a totally new case which is not permissible and thedefendants are estopped from pleading facts in contravention of the averments made earlier. I have gone through the earlier averments and ft cannotbe said that defendants 1 and 2 are taking absolutely new facts. The law iswell-settled that the principles governing the amendment of plaint and thatof written statement are not the same. The plaintiff cannot be permittedto substitute new cause of action. However, adding a new ground of defenceor substituting or altering another would stand on different footing. Courts are inclined to be more liberal in allowing amendment and questionsof prejudice are less likely to operate in case of amendment of the writtenstatement than in the case of amendment of the plaint. However, thereis always a legal prejudice when irrelevant matters are allowed to be introduced by way of amendments. In the instant case the defendants 1 and 2are only elaborating the facts and it cannot be said that they are setting upa new defence or taking up contradictory pleas. However, thereis always a legal prejudice when irrelevant matters are allowed to be introduced by way of amendments. In the instant case the defendants 1 and 2are only elaborating the facts and it cannot be said that they are setting upa new defence or taking up contradictory pleas. ( 10 ) WITH regard to the proposed amendments in parasl3 and 15a and B the objection taken by the plaintiff is that these amendments areof like nature and only require interpretation of the rules and bye-lawsof the Rotary International. It has also been pleaded that there was nocomplaint about Mr. Rajesh Kumar campaigning for the plaintiff and theanswering defendant is making attempts to perjure himself and so theamendment should not be allowed. It is, thus, clear that it cannot be saidthat the proposed amendment would not be necessary or relevant for justdecision of the case. There can, thus possibly be no valid objection tothe proposed amendment which is sought at the earliest opportunity. ( 11 ) THE question as to whether the plea taken up by the defendantsabout the complaint made to the effect that Mr. Rajesh Kumar was canvassing for the plaintiff also is to be believed or not is a question which willhave to be gone into during trial. ( 12 ) WITH regard to para 15 (B) of the written statement the pleataken up by the plaintiff has been that by way of this amendment the defendants are making improvement and setting up a new case and trying tomake wrong statements which is not permissible. A perusal of the proposed amendment indicates that instead of "that it is not customary to invitethe member" the words required to be substituted are "and it is customarynot to invite the number". I he other amendments required are with regardto the sending of the records of election, including ballots and credentialsto the District Governor and with regard to the taking up of the pleathat no person would be allowed to vote who is not on the electoral listor whose name did not appear on the certificate. It has also been pleadedthat the vote is of the club and not of any individual and that no rule orpractice prohibits any single representative of a club from casting all thevotes to which the club is entitled. It has also been pleadedthat the vote is of the club and not of any individual and that no rule orpractice prohibits any single representative of a club from casting all thevotes to which the club is entitled. It cannot be said that these are thepleas which do not arise out of the facts challenging the election of defendant Mo. 3 as the District Governor. ( 13 ) WITH regard to the proposed amendment in para 15 (C) theobjection taken by the plaintiff has been that the proposed amendment istotally irrelevant and argumentative and that this amendment is not warranted by the pleadings or the reply to the plaintiff s case and that the defendant cannot be permitted to contradict his previous stand and to make outa new case. The proposed amendment in fact is to the effect as to whethera single person can cast all the votes of the club or they were to be castedby individual members. It cannot be said that this is a plea which wouldchange the stand of the defendants 1 and 2, who are defending theelection of defendant No. 3, claiming that it has been conducted as per therules. ( 14 ) WITH regard to the proposed amendments from paras 15 (E) to15 (H) the objection taken up by the plaintiff is that these are matters ofevidence and the defendant can incorporate them by getting the evidencerecorded at the appropriate stage. It has further been pleaded that defendant Nos. 1 and 2 are introducing totally false story by seeking addition offalse facts in order to raise imaginary disputes and controversies which arebeyond the pate of adjudication by this Court. I am afraid this submissioncannot be accepted. The defendants are desirous of making the aforesaidamendments to make their stand clear. Merely because these facts canalso be brought on record by the defence during evidence would in myview be not sufficient to decline the prayer of defendants 1 and 2 to amendthe written statement and to plead these facts specifically. ( 15 ) WITH regard to proposed amendment in paras 15 (J) and 15 (1),defendants 1 and 2 want to substitute para 17 with a new para. By way ofthis amendment the defendants 1 and 2 have pleaded that the plaintiff acknowledged the election of defendant No. 3 and Ins own defeat at thesaid election on 9. 2. ( 15 ) WITH regard to proposed amendment in paras 15 (J) and 15 (1),defendants 1 and 2 want to substitute para 17 with a new para. By way ofthis amendment the defendants 1 and 2 have pleaded that the plaintiff acknowledged the election of defendant No. 3 and Ins own defeat at thesaid election on 9. 2. 1992 at a meeting of the seven clubs, including his ownand felicitated and congratulated defendant No. 3 on his election as District Governor. These are the facts which can certainly be pleaded andit cannot be said that the defendants are setting up any new or contradictory case. There could, thus, be no valid objection to these amendments. ( 16 ) BY way of amendment in para 15 (K) defendants 1 and 2 haveprayed lor permission to make additions at the end of para 18 to the effectthat it was wrong and denied that there was any right of the plaintiff todemand inspection or that the denial of inspection of records in any mannerhas any bearing on the validity of the election. The plaintiff has ampleopportunity to dispute the position which will have to be proved by theparties during trial. It cannot be said that the proposed amendment iscontradictory to the pleas already taken or that the plaintiff is takenby surprise by this amendment which has been proposed at the earliest. ( 17 ) BY way of amendment in paras 15 (L) and l5 (M) defendantsi and 2 have prayed for making additions in paras 19 and 22 of the writtenstatement. The only objection taken to this amendment is that these aretotally redundant and such additions cannot be made by setting up a contradictory case. It is also pleaded that these. additions are irrelevant indeciding the matter incontroversy. By way of the proposed amendmentsthe defendants 1 and 2 have pleaded that the result of the election was communicated to all the clubs, firstly by announcement at the District Conference as well as through the February 1992 issue of the Governor s Monthlyletter which was sent to all the clubs as well as others, including theplaintiff. It has also been pleaded that there was no violation of any bye-laws and that the election could be recalled by the District Governor inaccordance with the bye-laws of the Rotary International and that theplaintiff failed to avail of the remedies provided in the bye-laws. It has also been pleaded that there was no violation of any bye-laws and that the election could be recalled by the District Governor inaccordance with the bye-laws of the Rotary International and that theplaintiff failed to avail of the remedies provided in the bye-laws. I amafraid there can possibly be no valid objection to the said amendments beingallowed. ( 18 ) BY way of admendment in para 15 (N) the defendants 1 and 2have prayed for correction of the typographical errors appearing in differentparas of the written statement. There can possibly be no objection to thecorection of the typographical errors. ( 19 ) BY way of IAs. 11193 and 11194/92 it has been pleaded by defendants 1 and 2 that in the proposed amendments they want to amend theapplications for amendment of the written statement and reply to theapplication under Order 39, Rules 1and2 and Section 151 Civil Procedure Code so as toindicate that the plaintiff was not present in the meeting held on 9. 2. 1992,which has wrongly been mentioned therein on account of erroneous understanding of the instructions by the Counsel for the defendants 1 and 2 withregard to the sequence of events. These applications have been movedimmediately so as to make correction in the earlier applications, bringingon record the correct facts. There can possibly be no serious objection tothese applications being allowed. ( 20 ) AS already discussed, the case is at the initial stage when pleadings are not complete as yet. The plaintiff can certainly be compensatedby way of costs and it would be open to the plaintiff to file replication andrejoinder so as to controvert the pleas taken up by the defendants. Itcannot be said that the intention of defendants 1 and 2 had been to delaythe proceedings and that applications for amendments have been moved atthe earliest without loss of any time and even prior to the date fixed forfiling of the replication and rejoinder. The ends of justice, in my view,would be met if the amendments are allowed, subject to payment of Rs. 2,000. 00 as costs. ( 21 ) AS a result, all the four applications, viz. IAs. 9743, 9744, 11193and 11194/92, are allowed and the defendants 1 and 2 are permitted to amendthe written statement and reply to the application under Order 39, Rules1 and2 read with Section 151 CPC, subject to payment of Rs. 2,000. 2,000. 00 as costs. ( 21 ) AS a result, all the four applications, viz. IAs. 9743, 9744, 11193and 11194/92, are allowed and the defendants 1 and 2 are permitted to amendthe written statement and reply to the application under Order 39, Rules1 and2 read with Section 151 CPC, subject to payment of Rs. 2,000. 00 ascosts to the plaintiff. The payment of cost is conditional and the amendedwritten statement and reply to the application for injunction would be takenon record only on payment of cost.