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2009 DIGILAW 578 (BOM)

Twist Spin Industries v. KMH Enterprises

2009-04-28

C.L.PANGARKAR

body2009
Judgment : 1. Rule. Rule is made returnable forthwith. Heard finally with consent of the parties. 2. The plaintiff by this writ petition challenges the order passed by the Civil Judge (Jr.Dn.), Nagpur allowing an amendment application filed by the defendant. 3. A few facts may be narrated as follows - The petitioner/plaintiff filed suit a for declaration and injunction. The petitioner sought relief that defendant had no right to carry out the demolition work at the site and it should be permanently restrained from doing so. The plaintiff had filed an application for temporary injunction and that was contested. The written statement was not filed within ninety days by the defendant. The defendant's application to accept the written statement on record after lapse of ninety days was rejected. A writ petition was preferred by the defendant and High Court allowed the writ petition and directed the written statement to be accepted on record. In the meanwhile, the evidence of the plaintiff was recorded and defendant's evidence was yet to begin when the defendant filed an application for amendment. This was allowed, hence the writ petition. 4. I have heard Shri A.C.Dharmadhikar, learned counsel for the petitioner and Mrs.Shinde, learned counsel for the respondent. 5. The defendant had contended in the application that the defendant is seeking amendment because some facts, which were important, vital and necessary were not incorporated in the written statement and hence there was a need to amend it. This is the only ground given in the application to seek an amendment. Learned counsel for the petitioner submits that there is no reason in the application why such amendment is necessary. The delay is not explained and the defendant by now denying certain facts, wants to withdraw those admissions. 6. The application is no doubt filed after the evidence of the plaintiff is concluded. The proviso to Rule 17 says that no amendment application should be allowed after the trial has commenced unless it is shown that such plea could not have been raised early in spite of due diligence. Shri Dharmadhikari, learned counsel, submits that the application is filed after trial has commenced and there is no contention that in spite of due diligence such a plea could not have been raised. He submits that on this count alone the application is liable to be rejected. 7. Shri Dharmadhikari, learned counsel, submits that the application is filed after trial has commenced and there is no contention that in spite of due diligence such a plea could not have been raised. He submits that on this count alone the application is liable to be rejected. 7. There is no doubt that party seeking to file an application for amendment has to file the said application before the trial commences. The law is now well settled that the provision is not mandatory but is directory. Where cause is shown for not making an application early, such an application can certainly be considered. In the instant case,following dates would be very material. The suit was filed with temporary injunction application on 16/11/2006. Reply was filed by the defendant/respondent on 18/11/2006. Application was rejected and appeal was preferred. The appeal was allowed on 22/3/2007. On 5/6/2007 thereafter the plaintiff filed an affidavit of evidence in the court. On 24/3/2008, an application was filed for permission to file written statement and same was rejected by the court. The defendant had preferred writ petition. The writ petition was allowed. In the meanwhile, the plaintiff was examined and cross-examined by the defendant. As stated earlier, the writ petition was allowed on 26/6/2008 and written statement was taken on record. The amendment application was filed immediately within two months from the date written statement was admitted on record. It must be borne in mind that the evidence had commenced even before the writ petition allowing the written statement to be filed on record was allowed. It is, therefore, apparent that after the written statement was allowed to be placed on record, the amendment application was moved within period of two months. There does not appear to be much delay, therefore, in preferring an amendment application. Shri Dharmadhikari, learned counsel for the petitioner, had relied on the decision of the Supreme Court reported in (2006)12 SCC pg.1 (Rajendraprasadji N.Pandey and anr. ..vs.. Swami Keshav Prakeshdasi N. and ors.) in support of his contention that where no ground was raised in the amendment application which shows that in spite of due diligence the application could not be moved early, the application was liable to be rejected. The Supreme Court in the said decision makes following observations. 55. ..vs.. Swami Keshav Prakeshdasi N. and ors.) in support of his contention that where no ground was raised in the amendment application which shows that in spite of due diligence the application could not be moved early, the application was liable to be rejected. The Supreme Court in the said decision makes following observations. 55. We have carefully perused the pleadings and grounds which are raised in the amendment application preferred by the appellants at Ext.95. No facts are pleaded nor are any grounds raised in the amendment application to even remotely contend that despite exercise of due diligence these matters could not be raised by the appellants. Under these circumstances, the case is covered by provio to Rule 17 of Order 6 and, therefore, the relief deserves to be denied. The grant of amendment at this belated stage when deposition and evidence of three witnesses is already over as well as the documentary evidence is already tendered, coupled with the fact that the appellants' application at Ext.64 praying for recasting of the issues having been denied and the said order never having been challenged by the appellants, the grant of the present amendment as sought for at this stage of the proceedings would cause serious prejudice to the contesting respondent-original plaintiffs and hence it is in the interest of justice that the amendment sought for be denied and the petition be dismissed. 60. The above averment, in our opinion, does not satisfy the requirement of Order 6 Rule 17 without giving the particulars which would satisfy the requirement of law that the matters now sought to be introduced by the amendment could not have been raised earlier in spite of due diligence. As held by this Court in Kailash v. Nankhru the trial is deemed to commence within the issues are settled and the case is set down for recording of evidence. 61. We can also usefully refer to the judgment of this Court in Baldev Singh v. Manohar Singh for the same proposition. A perusal of the proposed amendment would show that it contains numerous averments. 61. We can also usefully refer to the judgment of this Court in Baldev Singh v. Manohar Singh for the same proposition. A perusal of the proposed amendment would show that it contains numerous averments. So far as the averments in the proposed amendments are concerned, at p.12 of the order in para 22, the appellants admit that all the issues raised by way of proposed amendment in the written statement were taken before this court in the appeal from order filed by the present defendants in the civil appeal filed before this court and again in the special leave petition filed subsequently. As rightly pointed out by learned Senior Counsel, any section should not be so interpreted that part of it becomes otiose and meaningless and very often a proviso itself is read as a substantive provision it has to be given full effect.” 8. In the instant case at hand, however, to my mind, there appears to be a genuine reason why the application for amendment was necessary. Mrs. Shinde, learned counsel for the respondent submits that it is through inadvartance on the part of the learned counsel for the defendant/respondent that the entire allegations in the plaint were not separately dealt with and denied. She submits that this has happened because of the fact that the learned counsel appearing for the defendant/respondent in the trial court had copied down the reply to the application for temporary injunction for drafting a written statement. She submits that the reply to the injunction application and the written statement are word to word same. It is her contention that in the temporary injunction application filed by the plaintiff, there were only six paragraphs and therefore while filing a reply to the temporary injunction application, the defendant had dealt with only those six paragraphs. Since said reply was copied down, obviously, the rest of the contents of the plaint were not dealt with by the defendant at all. It appears from the contents of the application for temporary injunction that there were only six paragraphs in the said application and the reply filed by the defendant would also show that the defendant had dealt with those six paragraphs in the reply. It appears from the contents of the application for temporary injunction that there were only six paragraphs in the said application and the reply filed by the defendant would also show that the defendant had dealt with those six paragraphs in the reply. The original written statement would also show that while drafting the written statement, the defendant had in fact dealt with the plaint only up to paragraph six though the plaint contains as many as 22 paragraphs. It is, therefore, obvious that due to inadvartance on the part of the learned counsel appearing for the defendant in the trial court that the rest of the contents of the plaint were not at all dealt with while drafting the written statement. A party is ordinarily not to be punished for the fault on the part of the lawyer. In the instant case, it is due to the fault of the lawyer that all the paragraphs of the plaint were not dealt with and there was no specific denial of any of the facts after the paragraph no. 7 onwards in the plaint. It must be borne in mind that the defendant had contested an application for injunction and had even contested the appeal. The defendant, therefore, always very much intended to contest the claim of the plaintiff tooth and nail. In the circumstances, it could not be said that the defendant ever intended to admit anything contained in the plaint. In the circumstances, to my mind, there was certainly sufficient ground, particularly in this case, to move an application for amendment seeking to deal with those paragraphs, which were at all not dealt with. The defendant has definitely contended in the application that the vital and important facts, which were necessary for proper adjudication of the claim were not dealt with in the written statement. In the above background, I find no difficulty in accepting the contention of Mrs.Shinde that there was sufficient ground for allowing the amendment even though after the trial had begun. The trial had in fact begun even before the written statement was filed on record. The amendment application could not, therefore, be moved before the evidence had begun. 9. The learned counsel for the petitioner next contended before me that the amendment sought will amount to allowing the defendant to withdraw the admissions given. The trial had in fact begun even before the written statement was filed on record. The amendment application could not, therefore, be moved before the evidence had begun. 9. The learned counsel for the petitioner next contended before me that the amendment sought will amount to allowing the defendant to withdraw the admissions given. The learned counsel submits that if any particular fact is not specifically traversed, it is deemed to be admitted and therefore, by denying those facts the defendant wants to withdraw those admissions. The submission cannot be accepted. The argument would apply in a case where there is a specific admission and that is sought to be withdrawn. This is a case of deemed admission and not a specific admission given in the written statement. I have pointed out from the above discussion that the defendant has failed to deny the averements made in the plaint because of the fact that the written statement was copied down from the reply to the injunction application and did not deal with any paragraph after paragraph no.7 onwards. In the circumstances, it cannot be said that the defendant is withdrawing the admission as such. In the circumstances, a decision as cited by Shri Dharmadhikari reported in 2007(4) MH.L.J. 721 (Hanumandas Vallabhadas and Sons ..vs.. Pitambar Bhatu Chaudhary) has no bearing on the case at hand. I find that particularly in this case there was definitely sufficient ground and bonafide ground for the defendant to seek an amendment. There was no deliberate delay nor the amendment can be said to be malafide. It was only due to the inadvartance on the part of the lawyer that there was no proper denial of the contentions in the plaint for which fault certainly cannot be put at the door of the defendant. I, therefore, find that the learned judge did not commit any error in allowing the amendment application. There is, therefore, no substance in the writ petition. It is dismissed. No order as to cost.