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2004 DIGILAW 659 (RAJ)

Hussain Khan v. Allanoor Khan

2004-04-23

SUNIL KUMAR GARG

body2004
Honble GARG, J.–The petitioners - defendants filed the present writ petition under Article 226/227 of the Constitution of India on 29.10.2003 against the respondents with a prayer that by an appropriate writ, order or direction, the order dtd. 6.10.2003 (Annex.7) passed by the learned Additional Distt. Judge, Nagaur (respondent No. 3) by which the learned Additional Dist. Judge allowed the application (Annex.5) filed by the respondent No. 1 - plaintiff under Order 6 Rule 17 C.P.C. at the cost of Rs. 5000/- and the amendments were made in the plaint (Annex.1) be quashed and set aside. (2). The facts of the case as put forward by the petitioners - defendants are as under: i) That the respondent No. 1 (plaintiff) filed a civil suit for declaration, partition and perpetual injunction in the court of learned Additional Distt. Judge, Nagaur (respondent No. 3) against the defendants - petitioners. A copy of the plaint is marked as Annex.1. ii) That the written statement (Annex.2) was filed by the petitioners - defendants. iii) That the respondent No. 1 filed rejoinder (Annex.3) to the written statement filed by petitioners - defendants. iv) Further case of the petitioners - defendants is that after pleadings were completed by the parties, the issues were framed and the plaintiff (respondent No. 1) was examined in the court as P.W.1 on 1.5.2003 and his statement is marked as Annex.4. v) Further case of the petitioners - defendants is that on 8.7.2003 when the case was posted for the remaining evidence of respondent No. 1 - plaintiff, an application (Annex.5) under Section 6 Rule 17 was filed by the respondent No. 1 (plaintiff) seeking amendment in his plaint. vi) Further case of the petitioners - defendants is that reply (Annex.6) to that application (Annex.5) was filed by the petitioners - defendants. vii) The learned additional Distt. Judge through impugned order dtd. 6.10.2003 (Annex.7) allowed the application filed by the respondent No. 1 (Plaintiff) inter alia holding : i) That amendments which have been sought by the respondent No. 1 - plaintiff are too lengthy and if the amendments are allowed, the admission made by the respondent No. 1 - plaintiff would be controverted into non-admission. ii) That the admissions made by the respondent No. 1 (plaintiff) were made by him by bonafide mistake. ii) That the admissions made by the respondent No. 1 (plaintiff) were made by him by bonafide mistake. iii) That by the amendments sought by the respondent No. 1 (plaintiff), the nature of the suit does not change. iv) That a party can amend his own mistake which had occurred in his pleadings either in the plaint or in the written statement. v) That the mistake committed by the respondent No. 1 - plaintiff in making admissions in his plaint (Annex.1) or in his rejoinder (Annex.3) had come to his knowledge, when he was cross- examined as P.W.1 by the defendants - petitioners. vi) That no doubt rejoinder (Annex.3) was filed by respondent No. 1 (plaintiff) on 25.1.1997 and the application (Annex.5) for amendment of the plaint (Annex.1) was filed on 8.7.2003 and this shows gross negligence on the part of respondent No. 1 - plaintiff, but merely on the ground of negligence and bonafide mistake, amendments should not be refused, but said amendments should be allowed with heavy cost. vii) Aggrieved from the order dtd. 6.10.2003 (Annex.7) passed by the learned Additional Distt. Judge (respondent No. 3), this writ petition has been filed by the petitioners - defendants. (3). In this writ petition, the main submission of the learned counsel for the petitioner is that the amendments can be permitted in the pleadings, but it cannot be permitted to withdraw crucial admissions made by the parties in their pleadings and since in the present case, the respondent No. 1 - plaintiff through the amendment application (Annex.5) wanted to amend his plaint (Annex.1) and rejoinder (Annex.3) in which he has made certain admissions and, therefore, such type of amendments should not have been allowed. (4). On the other hand, the learned counsel for the respondents has submitted that the order dtd. 6.10.2003 (Annex.7) passed by the learned Additional Dist. Judge (respondent No. 3) is just and proper and does not require any interference by this Court. (5). Heard and perused the record. (6). In my opinion, the order dtd. 6.10.2003 (Annex.7) passed by the learned additional Distt. Judge (respondent No. 3) appears to be arbitrary illegal and erroneous and the same cannot be sustained. (7). 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. (6). In my opinion, the order dtd. 6.10.2003 (Annex.7) passed by the learned additional Distt. Judge (respondent No. 3) appears to be arbitrary illegal and erroneous and the same cannot be sustained. (7). 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 and circumspection on the part of the Court. (8). Whenever there are subsequent developments or changes, it is open to the parties to seek moulding of the reliefs appropriately. (9). It is settled principle of law that subsequent events to the institution of suit, so far they are in consonance with the original cause of action, should be permitted to be brought on record by way of amendment. (10). Amendment can be refused in the following circumstances: i) Where it is not necessary for the purpose of determining the real question in controversy between the parties. ii) where the plaintiffs suit would be wholly displaced by the proposed amendments. iii) Where the effect of amendment would take away from the defendant a legal right which has accrued to him by lapse of time. iv) Where the amendment would introduce totally different, new and inconsistent case and the application is made at a late stage to the proceedings. v) where the application for amendment is not made in good faith. (11). There is no dispute on the point that the respondent No. 1 (plaintiff) filed an application (Annex.5) for amendment of his plaint (Annex.1) and respondent No. 1 (plaintiff) sought amendment because he wrongly admitted certain facts in his plaint (Annex.1) and rejoinder (Annex.3) and when after he was cross- examined as witness as P.W.1 by the defendants - petitioners, respondent No. 1 - plaintiff came to know that he had wrongly admitted certain facts in his plaint and therefore, by the proposed amendment, he wanted to deny those facts which are on record. (12). (12). In my considered opinion, the so called amendments cannot be said to be based on subsequent events to the institution of the suit, but it is a case where party has admitted some facts in his plaint or rejoinder, but when he was cross-examined by the defendants - petitioners, he came to know that he has wrongly admitted those facts. (13). The objects of cross-examination are to impeach the accuracy, credibility and general value of the evidence given in chief, to sift the facts already stated by the witness, to detect and expose discrepancies or to elicit suppressed facts which will support the case of the cross-examining party. (14). In the present case if the amendments as sought by the respondent No. 1 - plaintiff are allowed, the very purpose of cross-examination would be defeated and the proposed amendments sought by the respondent No. 1 cannot be said to be the amendments based on the event that has taken place after institution of the suit. (15). Order 6 Rule 17 C.P.C. permits only the amendment of the pleadings, but not substitution of the pleadings. If the present amendments as sought by the respondent No. 1 - plaintiff are allowed, it would amount to substitution of pleadings by respondent No. 1 on the ground that certain facts were wrongly admitted by him in the plaint (Annex.1) or in his rejoinder (Annex.3) and from this point of view also, proposed amendments should not have been allowed. (16). The other ground for refusing the amendments is that the amendments sought by the plaintiff - respondent No. 1 are not bonafide one and the finding of the learned Additional Distt. Judge (respondent No. 3) that admissions made by the plaintiff - respondent No. 1 in his plaint (Annex.1) and rejoinder (Annex.3) are bonafide mistake cannot be sustained. If the amendments sought by the plaintiff - respondent No. 1 are allowed, the facts as put forward by the respondent No. 1 (plaintiff) in the plaint (Annex.1) as well as in his rejoinder (Annex.3) would be replaced by new facts and such type of amendments should not be allowed. (17). If the amendments sought by the plaintiff - respondent No. 1 are allowed, the facts as put forward by the respondent No. 1 (plaintiff) in the plaint (Annex.1) as well as in his rejoinder (Annex.3) would be replaced by new facts and such type of amendments should not be allowed. (17). The discretion exercised by the learned Judge in allowing the application (Annex.5) filed by the respondent No. 1 - plaintiff is erroneous one and the same requires interference by this Court under Article 226/227 of the Constitution of India as a legal right which has accrued in favour of the petitioners - defendants on the basis of admissions made by the respondent No. 1 - plaintiff in the plaint or rejoinder would be defeated if such amendments are allowed. (18). Thus, the impugned order dtd. 6.10.2003 (Annex.7) passed by the learned Additional Distt. Judge (respondent No. 3) cannot be sustained as the same suffers from the basic infirmity and illegality and hence this writ petition deserves to be allowed. For the reasons mentioned above, the present writ petition is allowed and the order dtd. 6.10.2003 (Annex.7) passed by the learned Additional Distt. Judge, Nagaur (respondent No. 3) is quashed and set aside. No order as to costs.