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Rajasthan High Court · body

2012 DIGILAW 1570 (RAJ)

Kamla v. Nagar Mal

2012-07-17

R.S.CHAUHAN

body2012
JUDGMENT 1. - The petitioners are aggrieved by the order dated 28.04.2011 passed by Addl. District Judge, Churu, whereby he has dismissed the application filed by the petitioners under Order 6 Rule 17 CPC for amending their written statement. The brief facts of the case are that the respondent, Nagar Mal, filed a suit for recovery of money against the petitioner, inter-alia, on the ground that on 01.11.2007 the husband of petitioner No. 1 and father of petitioner No. 2 had taken a loan from him. In order to repay the said loan amount, he had issued a Cheque bearing No. 570565 drawn on SBBJ Bank. However, when the cheque was presented for encashment, the cheque bounced. Therefore, he tried to contact Surendra Kumar, the debtor. However, he was informed that Surendra Kumar had expired. Therefore, he sent the notices for recovery of the said amount to the petitioner. In reply to the said notice, the petitioner informed the plaintiff that in fact certain cheques had been lost for which a FIR had been lodged at Police Station, Sardarsahar. Subsequently, the plaintiff filed the Suit. 2. The petitioners filed the written statement, wherein they clearly denied giving of a loan by the plaintiff to Surendra Kumar. They also denied the fact that Surendra Kumar had given any cheque to the plaintiff. However, according to the petitioner, later on, while they were going through the documents left by Surendra Kumar, they discovered a receipt signed by the plaintiff clearly showing the fact that the loan amount of Rs. 1 lakh, in fact, had been paid by Surendra Kumar to the plaintiff. Relying on this receipt, the petitioners filed an application under Order 6 Rule 17 CPC. They pleaded that they should be permitted to make the necessary amendment in the written statement and the receipt should be taken on record. However, by order dated 28.04.2011, the learned Judge dismissed the application. Hence, this petition before this Court. 3. Mr. Rajesh Choudhary, the learned counsel for the petitioner, has vehemently contended that the scope for amendment of pleading is clearly laid down by Order 6 Rule 17 CPC. However, by order dated 28.04.2011, the learned Judge dismissed the application. Hence, this petition before this Court. 3. Mr. Rajesh Choudhary, the learned counsel for the petitioner, has vehemently contended that the scope for amendment of pleading is clearly laid down by Order 6 Rule 17 CPC. According to the said rule, an amendment may be permitted at any stage of proceeding on such terms as may be just, and if such an amendment is necessary for the purpose of determining the real questions in controversy between the parties even after the trial has commenced, the Court is empowered to permit the amendment of pleadings provided the Court is convinced that after due diligence the party could not have raised the matter before the commencement of the trial. According to the learned counsel, the suit was filed after the death of Surendra Kumar. Since the petitioner did not go through the documents left by Surendra Kumar, they were not even aware of the fact that the receipt existed. Thus, they made the plea of total denial in the written statement. However, subsequently, when they went through the papers left by the deceased, they discovered to their dismay the existence of the particular receipt. Since the existence of the receipt would have a great impact on the stand taken by the plaintiff, since it would permit the petitioners to substantially establish their defence, in order to be just to the defendants, the learned Judge infact should have permitted the amendment. By denying them the right to amend their written statement, a grave injustice has been caused. Therefore, the learned Judge has failed to exercise the power vested in him under Order 6 Rule 17 CPC. 4. On the other hand, Dr. Sachin Acharya, learned counsel for the respondent, has vehemently contended that the right to amend the pleadings is not an absolute right. The said right can be exercised only by a leave granted by the Court. In case the very nature of the cause of action is to be changed, then the right to amend the pleading should be denied by the Court. In order to buttress his contention, the learned counsel has relied on the case of Heeralal v. Kalyan Mal, AIR 1998 SC 618 , and on the case of Bollepanda P. Poonacha and Anr. v. K.M. Madapa, (2008) 13 SCC 179 . In order to buttress his contention, the learned counsel has relied on the case of Heeralal v. Kalyan Mal, AIR 1998 SC 618 , and on the case of Bollepanda P. Poonacha and Anr. v. K.M. Madapa, (2008) 13 SCC 179 . Therefore, the learned counsel has supported the impugned order. 5. Heard the learned counsel for the parties, perused the impugned order and considered the case law cited at the Bar. ORDER 6 Rule 17 CPC 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. 6. It is, indeed, trite to state that the very raison d'etre for the Court is to do justice to the parties. But justice can be done only if the truth were to be discovered by the Court. Therefore, the foremost endeavor of the Court should be to discover the truth. For, the truth may lie between the stand taken by the plaintiff and the stand taken by the defendant. Another principle that need not be over emphasised but is implicit in the every existence of the Court is that justice should not only be done, but must appear to be done to the litigant and to the public at large. After all, the entire structure of the judiciary is founded on the faith of the people. 7. It is while keeping these principles in mind, that Order 6, Rule 17 CPC was duly enacted. A bare perusal of Rule 17 brings out the following salient features. Firstly, that the Court may allow an amendment of the pleading of either parties at any stage of the proceeding. Secondly, that the amendment should be done in such a manner and on such terms, as may be just to the parties. Thirdly, the amendment shall be such, which is necessary for determining the real questions in controversy between the parties. Secondly, that the amendment should be done in such a manner and on such terms, as may be just to the parties. Thirdly, the amendment shall be such, which is necessary for determining the real questions in controversy between the parties. Fourthly, in order to ensure that the parties are diligent, the proviso further provides that an amendment can be allowed even after the trial has commenced, provided that the Court comes to the conclusion that despite due diligence the party could not have raised the matter before commencement of the trial. 8. Both the learned counsels are ad-idem that the application for amendment was filed prior to the framing of the issues by the trial Court. Therefore, the issues before this Court are whether it would have been just to permit the defendant to amend the written statement or not? Whether the amendment and the taking of the receipt on the record would be necessary for the purpose of determining "the real questions in controversy between the parties" or not? Lastly, whether the amendment would cause any injustice to the respondent-plaintiff or not? 9. It is rather common in India that after the death of the father, the family does not scramble through his belongings and more so the papers that he may have left behind. Instead, his papers are allowed to rest in peace. Many years may go-bye before his papers are ever searched by the family. It is even possible that the family may take the documents left by the deceased to be merely scraps of papers which deserve to be discarded and disposed off. Therefore, the stand taken by the petitioners that they have discovered the receipt only after going through the papers left by the deceased after two years, is not a fanciful stand. It is well within the realms of possibility, in a country where the papers of the deceased are left untouched. 10. Moreover, the receipt is a document which would throw a great light on the real questions in controversy between the parties. For, in case the receipt were proven to be a genuine one, it has the capacity to knock the bottom off the respondent-plaintiff's case. Therefore, the receipt is an essential document, which may tilt the scale of justice in favour of the petitioners. For, in case the receipt were proven to be a genuine one, it has the capacity to knock the bottom off the respondent-plaintiff's case. Therefore, the receipt is an essential document, which may tilt the scale of justice in favour of the petitioners. But obviously, the receipt cannot be brought on record until and unless written statement is permitted to be amended. 11. Further, such an amendment would permit the petitioner-defendants to take a valid defence in order to protect his interest and rights. In case, the petitioners were to be denied the amend of their written statement, they would be denied a substantial right to defend themselves. In case they were denied the right to defend themselves, the fundamental principles of natural justice would be violated. In fact, the entire trial will reduce itself into a farcikle one, where the defendant may be held liable without being given a fair opportunity of hearing. Thus, to deny them the right to amend the written statement is to cause a grave injustice to the petitioner-defendants. 12. In case the amendment were to be permitted, it would not be unjust to the respondent-plaintiff for he would still have an opportunity to submit his rejoinder to the written statement, to challenge the authenticity and veracity of the receipt, to rebut the defence taken by the petitioner-defendants. Therefore, the contention, raised by the learned counsel for the respondent that a fresh cause of action or a new cause of action would be created, is clearly untenable. Moreover, the contention raised by the learned counsel that in case the amendment were to be allowed, injustice would be caused to the plaintiff-respondent, is clearly unacceptable. 13. The learned counsel for the respondent has relied on the case of Heeralal (supra) in order to buttress his contention that an amendment in the written statement should not be allowed. In the case of Heeralal (supra) the Hon'ble Apex Court has relied upon the case of Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram and Co., AIR 1977 SC 680 and observed that "once the written statement contains an admission in favour of the plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing the case of the plaintiff and which would cause him irretrievable prejudice". Ltd. v. Ladha Ram and Co., AIR 1977 SC 680 and observed that "once the written statement contains an admission in favour of the plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing the case of the plaintiff and which would cause him irretrievable prejudice". Needless to say, there cannot be any doubt about the principle laid down by the Hon'ble Supreme Court. However, the said principle is inapplicable in the present case. For, firstly there is no admission made by the petitioners in their written statement which is in favour of the respondent-plaintiff. Secondly, there is no question of permitting the petitioner-defendants from withdrawing such an admission. Thirdly, no question of causing irretrievable prejudice to the plaintiff arises in the present case. As stated above, the respondent-plaintiff would have sufficient opportunity to file his rejoinder and to challenge the stand being taken by the petitioner-defendants. Therefore, the principle enunciated in the aforementioned case is clearly inapplicable to the present case. 14. The case of Bollepanda P. Poonacha and Anr. (supra) is distinguishable on the factual matrix of the case. The issue before the Apex Court in the aforementioned case was whether a counter-claim filed belatedly by the defendant should be allowed or not? However, in the present case, the question of filing of a counter-claim does not even arise. Therefore, the opinion of the Hon'ble Supreme Court that a counter-claim filed after an inordinate delay cannot be allowed, the said observation would not be applicable to the present case. For the reasons stated above, this petition is hereby allowed and the order dated 28.04.2011 is quashed and set aside. The application filed under Order 6 Rule 17 CPC is hereby allowed. The petitioners shall be granted two weeks' time to amend the written statement and to bring the receipt on record. No order as to cost.Petition allowed. *******