Research › Search › Judgment

Rajasthan High Court · body

2000 DIGILAW 227 (RAJ)

Panjumal Sindhi v. Ram Narain

2000-02-21

ARUN MADAN

body2000
Honble MADAN, J.–This revision petition has been preferred by the petitioner who was defendant/appellant in the suit against the order dated 12.11.1999 passed by learned Additional District Judge No. 3, Kota, whereby, application seeking amendment in written statement filed u/O. 6, R. 17 CPC by the defendant has been dismissed. (2). The facts which are relevant for deciding the controversy between the parties briefly stated are that plaintiff-respondent filed a suit against the defendant seeking eviction on the ground of his personal bona fide necessity so as to establish tea restaurant & hotel. After trial, the suit was decreed by judgment & decree dated 30.8.1989 by the Munsif (North) Kota, against which the defendant preferred first appeal during the pendency of which, he also moved an application seeking amendment for adding following averment in his written statement as special objection No.3.:- ``In last week of February, 1998, plaintiff had got constructed a big hall in the shape of two shops measuring 20 x 16 which were presently in his possession and the plaintiff with Jamnalal had already set up a hotel of tea there and started running it and, therefore, the plaintiff had ceased to have any bona fide personal necessity of the shop in dispute and was not entitled to get the defendant evicted. (3). The plaintiff contested the amendment application denying to have constructed the shop but contending that the shop was not in his ownership but belonged to one Basantilal Sharma, inasmuch it was incomplete without any pipe or light fitting and, therefore, according to him, the personal bona fide necessity still subsisted. After hearing the arguments on the amendment application, the appellate Court rejected the application moved u/O. 6, R. 17 r/w Sec. 151, CPC by impugned order dt. 12.11.1999. Hence this revision petition. (4). I have heard the learned counsel for the petitioner at length. Mr. After hearing the arguments on the amendment application, the appellate Court rejected the application moved u/O. 6, R. 17 r/w Sec. 151, CPC by impugned order dt. 12.11.1999. Hence this revision petition. (4). I have heard the learned counsel for the petitioner at length. Mr. M. Rafiq the learned counsel appearing on behalf of the petitioner stated that the learned appellate Court has committed not only illegality but also material irregularity in refusing to exercise its jurisdiction u/O.6, R. 17 CPC because amount sought is a significant subsequent development of fact which could not have been pleaded in written statement earlier before grant of the decree but it has developed after the decree was granted and during the pendency of the appeal against it, Shri Rafiq has placed reliance on the decision of the Apex Court in B.K.N. Pillai vs. Pillai & Ors., (1). (5). I have carefully assessed the findings recorded by the Courts below as well as the contentions advanced by the learned counsel for the petitioner. Prima facie, I am of the considered opinion that before a request for amendment in the pleadings can be entertained by a Court, no such amendment should be permitted which amounts to or results in defeating the valuable legal right which has accrued to a particular party to the proceedings. There may be cases in which it may not be possible to compensate a party by way of cost if there has been delay in seeking amendment. Undoubtedly, the Court should be liberal and more generous in allowing amendment to the written statement but at the same time, the Court should not be oblivious to the reality of the situation and should also take into consideration the intentions of the parties, which are really genuine and bona fide or the intention is purported to forestall and delay the proceedings. Prima facie, no amendment to the pleadings should be allowed which may result in defeating the legal rights which have accrued to a party notwithstanding the delay in seeking amendment which may be compensated by way of cost. At the outset, I would like to refer to the provisions of O.6, R.17 CPC which stipulates, as under:- 17. Prima facie, no amendment to the pleadings should be allowed which may result in defeating the legal rights which have accrued to a party notwithstanding the delay in seeking amendment which may be compensated by way of cost. At the outset, I would like to refer to the provisions of O.6, R.17 CPC which stipulates, 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. (6). In B.K.N. Pillai vs. P. Pillai & Ors. (supra) the controversy which had arisen before the Apex Court was that the respondent-plaintiff filed a suit against the appellant-respondent praying for grant of mandatory and prohibitory injunction seeking eviction allegedly on the ground of his being a licensee. In the written statement filed, the appellant therein pleaded that he was not a licensee but a lessee. During the trial of the suit the appellant filed an application for amendment of the written statement to incorporate an alternative plea that in case the Court found that the defendant was a licensee, he was not liable to be evicted as according to him the licence was irrevocable. He further wanted to add a plea that first and second prayers in the plaint were barred by limitation and that as acting upon the licence he has executed works of permanent nature and incurred expenses in execution of the same, his licence cannot be revoked by the grantor u/s. 60(b) of the Indian Easements Act, 1882. The prayer was rejected by the trial Court as also by the High Court on the ground that the proposed amendment was mutually destructive which, if allowed, would amount to permitting the defendant to withdraw the admission allegedly made by him in the main written statement. (7). The prayer was rejected by the trial Court as also by the High Court on the ground that the proposed amendment was mutually destructive which, if allowed, would amount to permitting the defendant to withdraw the admission allegedly made by him in the main written statement. (7). The Apex Court also discussed of its earlier decision in the matter of A.K. Gupta & Sons vs. Damodar Valley Corporation, (2) wherein, it observed, as under:- ``The general rule, no doubt, is that party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit or new cases or cause of action is barred : Weldon vs. Neale, (1887) 19 QBD 394. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation. (8). The Apex Court also took into consideration the ratio of its decision in the matter of Smt. Ganga Bai vs. Vijay Kumar & Ors., (3) as under:- ``The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care the circumspection on the part of the Court. (9). As a matter of principle, there is no doubt as to the proposition laid down by the Apex Court in its several decisions on the aspect that the Court should be generous in allowing the amendment to the pleadings provided the prejudice caused can be compensated by way of cost to the aggrieved party. There may be cases where amendment if allowed may bring altogether different facts which may not be germane to controversy or may cause greate prejudice to the aggrieved party. There may be cases where amendment if allowed may bring altogether different facts which may not be germane to controversy or may cause greate prejudice to the aggrieved party. There may be cases where party has made an admission and if an admission has been made, the said party cannot be permitted to alter its stand and position subsequently by seeking an amendment to the pleadings since if an admission has been made on a particular point and if the said party is permitted to retract from the said admission, it will definitely prejudice the cause of aggrieved party. In B.K.N. Pillai vs. P. Pillai & Ors. (supra) the facts and circumstances of the case were such that party having made an admission in the written statement, wanted to retract and withdraw from the same by seeking amendment to his written statement by way of an application u/O. 6, R. 17 CPC. The defendant-appellant wanted to amend the written statement by taking a plea that in case he is not held lessee of the premises in question, he was entitled to the benefit of Sec. 60(b) of the Indian Easements Act, 1882. Since the plea sought to be raised was neither inconsistent nor repugnant to the pleadings already raised in the defence, the alternative plea which was sought to be incorporated in the written statement was infact an extension of plea of the respondent-plaintiff and in rebuttal to issue framed regarding liability of defendant of being dispossessed on proof of fact that defendant was licensee who is liable to be evicted in accordance with the provisions of law, the mere fact that the appellant had filed an application for amendment after a prolong delay, the Apex Court held that there should be no ground for rejecting his prayer particularly when, the respondent-plaintiff could be compensated by way of cost. (10). The Apex Court in B.K.N. Pillai vs. P. Pillai & Ors. (supra) has made an observation that the defendant has a right to take alternative plea provided same does not cause prejudice to the plaintiff and does not amount to withdrawal of admission already made by the defendant and further that no amendment should be permitted which amounts or results in defeating the legal rights which have accrued to the plaintiff. (supra) has made an observation that the defendant has a right to take alternative plea provided same does not cause prejudice to the plaintiff and does not amount to withdrawal of admission already made by the defendant and further that no amendment should be permitted which amounts or results in defeating the legal rights which have accrued to the plaintiff. Hence, I am of the view that ratio of the aforesaid decision of the Apex Court is fully attracted to the instant case and if the amendment is permitted, it is bound to cause not only the great hardship to the plaintiff in view of the defence already taken by the defendant in original written statement by virtue of which legal rights have got vested in him which cannot be divested in the manner as so desired by the petitioner. (11). Though, I am in respectful agreement with the ratio of the judgment of the Apex Court as aforesaid but, the basic question which is involved in the instant case is as to whether the learned appellate Court has rightly dismissed application u/O. 6, R. 17 CPC, for amendment in written statement in the facts and circumstances of the case? The facts sought to be amended in written statement; according to the findings of the appellate Court are not such which necessitate to amend written statement and which are necessary for proper adjudication of the controversy in the suit. The facts sought to added in written statement, quoted above, in my considered view, if allowed, would certainly amount to and relate to defeating a legal right accruing to the plaintiff on account of lapse of time and further would cause prejudice to the plaintiff which cannot be compensated by costs as merely because decree of eviction has been challenged in first appeal and the same is pending adjudication, the plaintiff would have no legal right to earn his livelihood by running a tea hotel may be for the time being in an incomplete constructed premises of others ownership. The facts alleged are of subsequent event which do not go to the root of real controversy involved in the suit or the appeal between the parties, inasmuch as these facts do not prima facie establish for determination of the controversy at issue and challenge to the decree of eviction pending adjudication in the first appeal. The facts alleged are of subsequent event which do not go to the root of real controversy involved in the suit or the appeal between the parties, inasmuch as these facts do not prima facie establish for determination of the controversy at issue and challenge to the decree of eviction pending adjudication in the first appeal. Furthermore, the proposed amendment would alter and substitute a new cause of action on the basis of which the defence was taken in original written statement; causing irretrievable prejudice to legal right of decree of eviction and to earn livelihood temporarily in any premises other than suit premises, till suit premises are evicted under decree. (12). The alternative plea of the defendant on the aspect of comparative hardship that notwithstanding original defence taken by him, yet it would not cause any prejudice to the plaintiff in my view, does not stand to reason at all and cannot be sustained. I am of the opinion that no amendment to the pleading should be permitted which amounts to or results in defeating the valuable legal rights in favour of a party. Moreso, this is not a case where amendment can be compensated by way of cost. (13). As a result of above discussion, no interference is called for because there is no material irregularity, illegality, excess or error of jurisdiction on the part of the appellate Court which calls for any interference by this Court in exercise of revisional powers u/s. 115 CPC. The revision petition being devoid of any merit is hereby dismissed at admission stage itself. However, the observations made under this order are restricted to the decision on the amendment application itself and the same will not influence the appellate Court deciding appeal pending adjudication against the decree passed by the trial Court on all the questions.