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2009 DIGILAW 66 (DEL)

Pramod Kumar Aggarwal v. P. S. Dhingra

2009-01-19

MANMOHAN SINGH

body2009
MANMOHAN SINGH, J. 1. By this order, I shall dispose of I.A. No. 6539/2008 filed by the defendant under Order 6 Rule 17 read with Section 151 of the CPC, 1908 seeking amendment of the written statement filed by the defendant. 2. The case of the defendant in this application is that the plaintiffs/non-applicants filed the suit for specific performance of a receipt cum agreement dated 10th December, 2005. In the plaint, it is stated that they are the joint purchaser of the property bearing no. C-43, Soami Nagar, New Delhi which is claimed by them to be the joint absolute property of the defendants and the suit is based upon a receipt cum agreement dated 10th December, 2005. 3. The defendant on 25th August, 2006 filed an application under Order 7 Rule 11(d) of the CPC being I.A. No. 10014/2006. The said application came up for hearing on 13th May, 2008 where the court observed that the plea raised by the defendant being a legal issue can be raised as preliminary issue in the written statement. .4. By virtue of the present application under Order 6 Rule 17 of the CPC, the defendant has introduced the preliminary objections and sought to amend the written statement by adding para 1 and 10A in the written statement just above the brief facts. The said paras are reproduced hereinbelow:- ``PRELIMINARY OBJECTIONS/SUBMISSIONS As per the own admission of the plaintiffs the present suit of specific performance is based on the alleged receipt cum agreement dated 10.12.2005. The alleged receipt cum agreement dated 10.12.2005 is no agreement in the eyes of law and thus, cannot be relied upon as a valid and enforceable agreement for the purposes of the present suit. Therefore, the plaintiffs claiming specific performance is also not maintainable in view of the under-mentioned preliminary objections. The alleged receipt cum agreement dated 10.12.2005 relied upon by the plaintiffs is not an agreement in law but is only a receipt. The said receipt is not signed by both the parties. It does not bear any date. It does mention other details and the modalities for execution of the sale deed etc. The alleged receipt cum agreement cannot be taken to be an agreement in absence of clear and specific details of the transaction and intention of the parties and the absence of details of the ownership of the property between the defendants. It does mention other details and the modalities for execution of the sale deed etc. The alleged receipt cum agreement cannot be taken to be an agreement in absence of clear and specific details of the transaction and intention of the parties and the absence of details of the ownership of the property between the defendants. As such the suit based on the said receipt is misconceived in law and not maintainable as such. The same is liable to be dismissed at the threshold on this ground itself. 10A. That in the light of the foregoing submissions it is submitted that no cause of action has arisen whatsoever against the defendant as alleged by the plaintiff on the basis of the alleged receipt cum agreement dated 10.12.2005 as the said agreement is not valid/enforceable in law as for any agreement to be valid and enforceable has to be signed by both the parties.` 5. The application is duly opposed by the plaintiff on the plea that earlier the defendants application under Order 7 Rule 11 of the CPC was dismissed as withdrawn and in fact, the defendants/applicants are now misinterpreting the said order in total disregard of the liberty granted by the court and in view of that, the present application is not maintainable. 6. Having heard the rival submissions of the learned counsel for the parties and in order to consider the present application, I am of the view that it would be appropriate that the order passed by this court on 13th May, 2008 be considered in extenso and the same reads as under:- ``IA No.10014/2006 (u/O 7 R 11 (d) r/w S 151 CPC) by D-1 to 3 Counsel for the applicants/defendants seeks liberty to withdraw the present application while reserving the right of the defendants to raise objections as to the maintainability of the suit in terms of Order 7 Rule 11 CPC. Counsel for the plaintiff has no objection to the said right being reserved by the defendants as to the maintainability of the suit in view of the provisions of Order 7 Rule 11 CPC. The same is in any case a legal plea that can be raised by a party at any stage. Counsel for the plaintiff has no objection to the said right being reserved by the defendants as to the maintainability of the suit in view of the provisions of Order 7 Rule 11 CPC. The same is in any case a legal plea that can be raised by a party at any stage. In these circumstances, the present application is dismissed as withdrawn, while reserving the rights of the defendants to raise the issue as to the maintainability of the suit, under the provisions of Order 7 Rule 11 CPC. IA No.5814/2006 (u/O 39 R 1 and 2 CPC) Pleadings are complete. List on 02.09.2008. CS (OS) No.843/2006 List for framing of issues on 02.9.2008.` 7. From perusal of the order dated 13th May, 2008, it is without any doubt that while dismissing the application under Order 7 Rule 11 of the CPC, liberty was granted to the defendant to raise the issue of maintainability of the suit as a preliminary issue in the written statement. The court has also observed that the said plea is a legal plea which can be raised by the party at any stage and the defendant has also reserved his right to raise the objections about the maintainability of the suit while withdrawing the said application. .8. Now, the question before this court is as to whether the said application for amendment of the written statement is to be allowed or not. In this regard, learned counsel for the defendant/applicant has cited the recent judgment of the Apex Court reported in AIR 2007 SC 1663 : Usha Balashaheb Swami and Ors. vs. Kiran Appaso Swami and Ors. wherein it was specifically observed that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. In allowing the amendment in the written statement, a liberal approach is a general view when admittedly in the event of allowing the amendment, the other party can be compensated in money. The relevant paras 14 to 17 of the judgment read as under:- ``14. In allowing the amendment in the written statement, a liberal approach is a general view when admittedly in the event of allowing the amendment, the other party can be compensated in money. The relevant paras 14 to 17 of the judgment read as under:- ``14. It is now well-settled by various decisions of this Court as well as those by High Courts that the courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bonafide one. In this connection, the observation of the Privy Council in the case of Ma Shwe Mya v. Maung Mo Hnaung AIR 1922 P.C. 249 may be taken note of. The Privy Council observed: All rules of courts are nothing but provisions intended to secure the proper administration of justice and it, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject matter of the suit. 15. It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable. 16. Such being the settled law, we must hold that in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case [see B.K. Narayana Pillai v. Parameswaran Pillai and Baldev Singh and Ors. v. Manohar Singh. v. Manohar Singh. Even the decision relied on by the plaintiff in Modi Spinning (supra) clearly recognises that inconsistent pleas can be taken in the pleadings. In this context, we may also refer to the decision of this Court in Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (Dead) 1995 Supp (3) SCC 179. In that case, the defendant had initially taken up the stand that he was a joint tenant along with others. Subsequently, he submitted that he was a licensee for monetary consideration who was deemed to be a tenant as per the provisions of Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This Court held that the defendant could have validly taken such an inconsistent defence. While allowing the amendment of the written statement, this Court observed in Basavan Jaggu Dhobis case (supra) as follows: As regards the first contention, we are afraid that the courts below have gone wrong in holding that it is not open to the defendant to amend his statement under Order 6 Rule 17 CPC by taking a contrary stand than was stated originally in the written statement. This is opposed to the settled law open to a defendant to take even .contrary stands or contradictory stands, the cause of action is not in any manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action. 17. As we have already noted herein earlier that in allowing the amendment of the written statement a liberal approach is a general view when admittedly in the event of allowing the amendment the other party can be compensated in money. Technicality of law should not be permitted to hamper the Courts in the administration of justice between the parties. In the case of L.J. Leach and Co. Ltd. v. Jardine Skinner and Co., this Court observed ``that the Courts are more generous in allowing amendment of the written statement as the question of prejudice is less likely to operate in that event`. In the case of L.J. Leach and Co. Ltd. v. Jardine Skinner and Co., this Court observed ``that the Courts are more generous in allowing amendment of the written statement as the question of prejudice is less likely to operate in that event`. In that case this Court also held ``that the defendant has right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to serious injustice.` While allowing this application, the Supreme Court has also observed that the merit of the case is not decided just by allowing the amendment in the written statement. 9. It is well settled law that while considering the issue of amendment in the written statement to be allowed or not, the court does not go into the merit of the matter nor it decides whether or not the claim made therein is bona fide or not. (Ref: 2003 (27) PTC 175 (SC) Lakha Ram Sharma vs. Balar Marketing Pvt. Ltd.) 10. Keeping these principles in mind and in view of the facts and circumstances of the case, I am of the view that the proposed plea of preliminary objection as to whether the suit is maintainable on the basis of receipt cum agreement dated 10th December, 2005 is to be examined as per the merits of the case at the appropriate stage. 11. This takes me to the discussion of law of amendment. There is no doubt that at the initial stage of the suit, where the pleadings are not complete, the court will not go into the merits of the controversy while adjudicating upon the amendment of the pleadings. If the plaintiff is seeking the amendment of the plaint, he ought to be given an opportunity to establish his case. 12. In view of the above, the present application is allowed subject to the costs of Rs. 5,000/- to be paid to the plaintiff by the defendant within two weeks from today. The amended written statement shall be filed by the defendant within four weeks from today. 13. List this matter before the Joint Registrar for completion of pleadings on 17th March, 2009.