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2007 DIGILAW 415 (DEL)

Unichem Laboratories Ltd. v. Medi Treat Drugs

2007-02-27

G.S.SISTANI

body2007
JUDGMENT : G.S. Sistani, J. I.A. No. 7517/2006 1. This is an application filed by the Defendant under Order 6 Rule 17 Code of Civil Procedure. Learned Counsel for the Plaintiff/non-applications submits that she has no objection to the amendments sought by the Defendant in paragraph 10 (C) & (D). However, she opposes the amendment sought in paragraph 10(A) at page 3 of the application. It is further submitted that the remaining amendments flow out of the para 10(A) of this application. It would be useful to reproduce the amendment sought in paragraph 10 (A) : (A) In Para-D following lines are to added: ...situated at New Ashok Nagar, Basti Shaku Road, Jalandhar. The firm's address of service at B-45A, New Gupta Colony, New Delhi has already been closed since December 2004 that is why the Defendant No. 1 filed their Written Statement based on service effected on the Defendant No. 2. 2. It is submitted by Learned Counsel for the Defendant that as far as Defendant No. 1 is concerned it had left the address B-45A New Gupta Colony, New Delhi since December, 2004 and this fact could not be brought out in the written statement inadvertently .He wishes to take this ground subsequently in view of the averments made by the Plaintiff in paragraph 18 of the plaint that this Court has territorial jurisdiction in view of the fact that the Defendant No. 1 has its office at Delhi. 3. According to the applicant, this amendment goes to the root of the matter and would help in resolving the controversy between the parties. It is submitted by Learned Counsel for the applicant/Defendant that the suit is at the initial stage of admission/denial of the documents and the Courts have been liberal in allowing the amendments as long as they do not change the character of the written statement. 4. Learned Counsel for the applicant/Defendant relied upon Basavan Jaggu Dhobi v. Sukhnandan Ramdas Choudhary to canvass the point that it is open to the Defendant even to take a contrary stand or contradictory stand whereby the cause of action is not in any manner effected. Learned Counsel also relies on the decision of this Court in Vishwa Nath and Another Vs. Chaman Lal Khanna and Another, AIR 1975 Delhi 117, where it has been held that "The Courts do not punish the litigants for the mistakes they make". 5. Learned Counsel also relies on the decision of this Court in Vishwa Nath and Another Vs. Chaman Lal Khanna and Another, AIR 1975 Delhi 117, where it has been held that "The Courts do not punish the litigants for the mistakes they make". 5. Learned Counsel for the Plaintiff/non-applicant submits that in fact by seeking amendments, Defendant No. 1 is trying to wriggle out of an admission which has been previously made. Learned Counsel for the Plaintiff/non-application, in support of her contention, has relied upon a judgment of the Supreme Court in Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., (1976) 4 SCC 320 and more particularly on para 10, which reads as under: 10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the Plaintiff completely from the admissions made by the Defendants in the written statement. If such amendments are allowed the Plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the Defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court. 6. After hearing Learned Counsel for the parties and going through the Judgments cited in the Court today, it is crystal clear that the amendments sought by the applicant would go to the root of the matter and would help in resolving the controversy between the parties. Merely because the Defendant No. 1 did not object to the address given by the Plaintiff, does not imply that Defendant No. 1 cannot take such an objection at a later stage. 7. The judgment of M/s. Modi Spinning (supra) is not applicable to the facts of the present case inasmuch as Defendant No. 1 was not even served at the given address, as the resort was 'no firm exists at the given address'. Defendant No. 1 entered appearance only after it was informed by Defendant No. 2. Consequently the application (IA. No. 7517/2006) is allowed, subject to payment of costs of Rs. 2,500. CS (OS) No. 350/2005 1. Let the amended written statement be filed within four weeks from today. Replication, if any, be filed within four weeks thereafter. 2. List the matter before Joint Registrar on 7.5.2007.