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2011 DIGILAW 1858 (ALL)

Bhagwan Swaroop Tripathi and another v. Gaushala Committee Shikohabad and another

2011-08-03

S.K.GUPTA

body2011
Shashi Kant Gupta, J.;- 1. The present writ petition is directed against the order dated 21.9.2002 passed by Respondent No. 2, Additional District Judge/Special Judge (NDPS Act), Firozabad, in Civil Revision No. 6 of 2002 setting aside the order dated 16.2.2002 whereby the amendment sought by the petitioner in its written statement was allowed. 2. Brief facts of the case are as follows; 3. A suit for arrears of rent and ejectment was filed by the Respondent No. 1 against the petitioners. It was stated in paragraph 1 of the plaint that the plaintiff is a registered society under UP Gaushala Adhiniyam, 1964 and the certificate to the effect has been issued by the Gaushala Registrar and Animal Husbandry Department. Thereafter, written statement was filed. During the pendency of the suit, an amendment applicant under Order 6 Rule 17 CPC was filed by the petitioner for amendment in paragraph 1 of the written statement. The trial Court, after hearing the learned counsel for the parties, by order dated 16.2.2002 allowed the said amendment application. Being aggrieved and dissatisfied with the order dated 16.2.2002, the Respondent No. 2 filed a revision which was registered as Civil Revision No. 6 of 2002. The Revisional Court by order dated 21.9.2002 allowed the revision. Hence the present writ petition. 4. Heard the learned counsel for the parties and perused the record. 5. In Rakesh Kumar Agarwal and others Vs. K.K. Modi reported in (2006) 4 SCC 385 ; it was laid down that the rule of amendment is essentially a rule of justice, equity and good conscious; and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. 6. In this connection, it is also apt to extract Rule 17 of Order VI CPC, which is as under: "17. 6. In this connection, it is also apt to extract Rule 17 of Order VI CPC, which is 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: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." 7. The first limb of the Rule 17 of Order VI CPC viz. "the Court may at any stage of the proceedings allow either party to alter or amend their pleadings in such manner" is discretionary in view of the word "may" used therein; The second limb of the Rule 17 of Order VI CPC i.e. "all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties" is imperative in view of the word "shall" used. However, the proviso to Rule 17 of Order VI CPC expressly bars such amendments after the commencement of the trial of suit. But still, the bar imposed under the proviso to the Rule 17 of Order VI CPC is not absolute, because, even after the commencement of the trial, the Court may allow either of the parties to amend or alter their pleadings, if the court comes to the conclusion that despite due diligence, the parties could not raise the matter before the commencement of the trial. It is in this sense, the power to amend the pleadings, is wide, and such power of the court should not be mere hypertechnical. It should be exercised liberally. With this background, now let us consider the submissions made by either side. 8. It has been submitted by the learned counsel for the petitioners that due to typographical error the word "Nahi" could not be incorporated, as such, "Yah Ki Vaad Patra Ki Dhara 1 Swikar Hai" was wrongly mentioned in paragraph 1 of the written statement instead of "Yah Ki Vaad Patra Ki Dhara 1 Nahi Swikar Hai". 8. It has been submitted by the learned counsel for the petitioners that due to typographical error the word "Nahi" could not be incorporated, as such, "Yah Ki Vaad Patra Ki Dhara 1 Swikar Hai" was wrongly mentioned in paragraph 1 of the written statement instead of "Yah Ki Vaad Patra Ki Dhara 1 Nahi Swikar Hai". Learned counsel for the petitioner further drew attention of this Court towards paragraph 20 of the written statement wherein it was mentioned that although the petitioner was registered under the Society Act, 1860 but till date its registration has not been renewed and its registration has already been cancelled, as such, the suit itself was not maintainable. 9. Learned counsel for the petitioners, in support of his contention, has referred paragraph 6 and 7 of the Apex Court decision in the case of Prem Bakshi and others Vs. Dharm Dev and ors, JT 2002 (1) SC 34 "6. Now the question is whether the order in question has caused failure of justice or irreparable injury to respondent No.1. It is almost inconceivable how mere amendments of pleadings could possibly cause failure of justice or irreparable injury to any party. Perhaps the converse is possible i.e. refusal to permit the amendment sought for could in certain situations result in miscarriage of justice. After all amendments of the pleadings would not amount to decisions on the issue involved. They only would serve advance notice to the other side as to the plea, which a party might take up. Hence we cannot envisage a situation where amendment of pleadings, whatever be the nature of such amendment, would even remotely cause failure of justice or irreparable injury to any party. 7. From the facts extracted above it would show that appellants only wanted to bring to the notice of the court the subsequent facts and after amendment of the plaint, respondent No.1 would get opportunity to file written statement and he would be able to raise all his defence. Ultimately if the suit is decided against the respondent No.1, he would have a chance to take up these points before the appellate court. It cannot be conceived of a situation that the proposed amendment if allowed would cause irreparable injury or failure of justice as the remedy of the respondent No.1, as stated above, is by way of an appeal. It cannot be conceived of a situation that the proposed amendment if allowed would cause irreparable injury or failure of justice as the remedy of the respondent No.1, as stated above, is by way of an appeal. We are, therefore, of the view that the order allowing the amendment would not come under clause (b)." 10. He further referred to paragraph 12 of the this Court's decision in the case of Krishna Kumar Vs. Smt. Dulari Devi (Dead) Subs. By L. Rs., [2002 (49) ALR 90]". "12. The aforesaid admission of the plaintiff-respondent cannot be read in isolation and the whole of the evidence is to be read. A perusal of the evidence given by Dulari would show that she had sold the agricultural land of GUREHKA after the sale deed had been registered. Nobody had read the sale deed to her and she had been given money, which she took and came back." 11. Lastly, learned counsel for the petitioners referred to paragraph 10 of Kamal Regmi Sharma and others Vs. Neapal Bank Ltd and others, 1987 ALL. L. J. 349; "10. While exercising the revisional jurisdiction under S. 115, C.P.C. the revisional Court ought not to interfere with a discretion which has been exercised by the court below in allowing the amendment of the pleadings. Such an interference may be permissible with cogent reasons or compelling circumstances have been shown. In the instant case learned counsel for the applicants have failed to show any such reason or circumstance much less cogent or compelling one warranting interference. In the case of Haridas Alidas v. Godrej Rustom Kermani ( AIR 1983 SC 319 ) (supra) it has been held that the court should be extremely liberal in granting prayer for amendment of pleading unless serious injustice or irreparable loss is likely to be caused to the other side." 12. Learned counsel for the respondents submitted that the petitioners, after admitting in paragraph 1 of the written statement that "Yah Ki Vaad Patra Ki Dhara 1 Swikar Hai", are trying to wriggle out from their own admission which is impermissible in law and the revisional court was fully justified in setting aside the order of the trial court. 13. Learned counsel for the respondents submitted that the petitioners, after admitting in paragraph 1 of the written statement that "Yah Ki Vaad Patra Ki Dhara 1 Swikar Hai", are trying to wriggle out from their own admission which is impermissible in law and the revisional court was fully justified in setting aside the order of the trial court. 13. A perusal of the record reveals that it was admitted in the paragraph 1 of the written statement that "Yah Ki Vaad Patra Ki Dhara 1 Swikar Hai" and further by way of amendment application an amendment was sought and it was stated therein that due to typographical error the word "Nahi" could not be inserted in paragraph 1 of the written statement which ought to have been "Yah Ki Vaad Patra Ki Dhara 1 Swikar Nahi Hai". The petitioner further in paragraph-20 of the written statement has also taken the stand that plaintiff's registration under the Society Act has been cancelled since it has not been renewed, as such, the suit is not maintainable, therefore, in the light of the averments made in paragraph 20 of the written statement, it appears that there was a typographical error in paragraph 1 of the written statement on account of which the word "Nahi" could not be incorporated. 14. In my opinion, the document has to be read in whole and in case, the amended paragraph 1 of the written statement and paragraph 20 are read together it will be found that they are inconsistent and paragraph 20 clearly shows that the intention of the petitioner was never to admit the contention of the respondent that society was registered at the time of filing the present suit and the petitioner has never tried to wriggle out from own admission since in paragraph 20 of the written statement it was categorically stated that registration of the petitioner has already expired and the suit is not maintainable, as such, there was no occasion for him to admit the contents of the paragraph 1 of the written statement with regard to registration. The revisional court, while exercising the revisional jurisdiction under S. 115, C.P.C., ought not to interfere with a discretion which has been exercised by the court below in allowing the amendment of the pleadings. Such an interference may be permissible with cogent reasons or compelling circumstances have been shown. The revisional court, while exercising the revisional jurisdiction under S. 115, C.P.C., ought not to interfere with a discretion which has been exercised by the court below in allowing the amendment of the pleadings. Such an interference may be permissible with cogent reasons or compelling circumstances have been shown. In the instant case, learned counsel for the respondents have failed to show any such reason or circumstance much less cogent or compelling one warranting interference. 15. In the case of Steel Authority of India Limited Vs. State of West Bengal, AIR 2009 120, Supreme Court has held as follows; " That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case."" 16. The reasons given by the court below are superficial and has applied casual and superficial approach. The amendment sought by the petitioner does not cause any prejudice or loss to the respondents. It is well settled law that while considering the amendment in the pleadings, a lenient and liberal view ought to have been taken by the court in order to advance justice to the parties. 17. The trial court while allowing the amendment application was satisfied that amendment was necessary and the so-called admission of the petitioners in paragraph 1 of the written statement cannot be read in isolation and the entire contents of the written statement has to be taken into consideration while considering the amendment sought by the petitioner. 17. The trial court while allowing the amendment application was satisfied that amendment was necessary and the so-called admission of the petitioners in paragraph 1 of the written statement cannot be read in isolation and the entire contents of the written statement has to be taken into consideration while considering the amendment sought by the petitioner. The revisional court has taken a very technical view of the matter and did not examine the matter in proper perspective, as such, the writ petition deserves to be allowed. 18. In view of above, the writ petition stands allowed. The order dated 21.9.2002 passed by Respondent No. 2, Additional District Judge/Special Judge (NDPS Act), Firozabad in Civil Revision No. 6 of 2002 is set aside and the order dated 16.2.2002 passed by the trial court is upheld. The court below will make every endeavour for expeditious disposal of the suit without giving any undue adjournment to either of the side.