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2013 DIGILAW 289 (ALL)

Beti Devi v. Ist A. D. J. Hardoi

2013-01-23

ANIL KUMAR

body2013
JUDGMENT Anil Kumar,J.: - Heard Sri Anurag Narain, learned counsel for petitioner, Sri R.N. Tilhari, learned Counsel for respondent, learned State counsel and perused the record. 2. By means of the present writ petition, the petitioner has challenged the impugned order dated 23.04.1990 passed by First Additional District Judge, Hardoi. 3. Facts in brief of the present case are that O.P. No. 2/Smt. Vinod Kumari/plaintiff initially filed a suit (Regular Suit No. 30 of 1981) for permanent injunction in the Court of Munsif (West), Hardoi. In the said matter written statement has been filed on behalf of petitioner (Annexure No. 2). 4. After completing the pleadings and as per the procedure provided in the statute which governs the filed, the suit was decreed by judgment and decree dated 10.08.1989. Thereafter, petitioner/defendant filed an appeal (Appeal No. 58 of 1989) in which on 16.04.1990 an application for amendment (Annexure No. 3) under order 6 Rule 17 CPChas been moved. On 20.04.1990, O.P.No. 3/plaintiff filed her objection (Annexure No. 4). After hearing the parties concerned on the point in issue by means of the order dated 23.04.1990, the appellate court/first Additional District Judge, Hardoi dismissed the amendment application, the relevant finding given by the appellate court while dismissing the application is quoted hereinunder: - "Considering the pleadings, evidence and the material on record, I am of the view that amendments sought are not necessary or bonafide, inordinate delay is indicative of malfide. Further, it was never asserted before 17 Ka was moved on 19/04/1990 that there was 'Jubani Apsi Parivarik Samjhauta' (oral mutual family settlement) in respect of the property in suit. Clearly, this is a new plea sought to be raised by the defendant appellant and it is likely to cause prejudice to the plaintiff respondent. The application (17 Ka) is therefore rejected. 5. Aggrieved by the said facts, the present writ petition has been filed before this Court . 6. Clearly, this is a new plea sought to be raised by the defendant appellant and it is likely to cause prejudice to the plaintiff respondent. The application (17 Ka) is therefore rejected. 5. Aggrieved by the said facts, the present writ petition has been filed before this Court . 6. I have heard learned counsel for parties and gone through the record, in order to decide the controversy involved in the present case, it is appropriate to go through the relevant provisions of amendment as provided under Order 6 Rule 17 C.P.C., quoted as hereinunder: - "Order VI Rule 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." 7. In view of the definition as given under Order 6 Rule 17 CPC and after hearing the parties concerned the relevant and material word which exists in Order 6 Rule 17 CPC in order to allow the amendment is "at any stage". 8. Thus, in a proceedings if necessary for the purpose of determination real fact sought to be brought by way of amendment in the controversy are important to its adjudication and decision can be allowed. 9. Amendment of the pleadings could be made at any stage or the proceedings. Instances are not wanting that pleadings are permitted to be amended even when second appeal is pending. Equally, it can be refused. But each case depends upon its own facts. The essential requisites are that the delay in making the application, the reason therefore should be given and considered, and there should be no prejudice caused to the other side. 10. Further, the whole object and purpose of Order VI Rule 17 CPC in the Code of Civil Procedure is to avoid multiplicity of the proceedings or to shorten the litigation and to settle the entire disputes at rest, though, however, any amendment should not or must not jeopardize the case of the other side in such a manner which goes to non suit the other side. 11. 11. Hon'ble the Apex Court while interprating the provision of Order VI Rule 17 time and again held that the amendment to written statement cannot be considered to the same principle as an amendment in the plaint. The pleas in the written statement may be alternative or on additional ground or to substitute the original plea. 12. In the case of Heerala Vs. Kalyan Mal, AIR 1998 SC 618 and in the case of Modi Spinning & Weaving Mills Co. Ltd. Vs. Ladha Ram & Co. AIR 1977 SC 680 , Hon'ble Supreme Court held that defendant can be allowed to amend his written statement by taking an inconsistent plea as compared to the earlier plea. It has been also held that such an inconsistent plea which would displace the plaintiff completely from the admissions made by the defendants in the written statement cannot be allowed. If such amendments are allowed in the written statement the plaintiff would be irretrievably prejudiced by being denied the opportunity of extracting the admissions from defendants. 13. Applying the abovesaid principle of law in the present case and taking into consideration reasoning given by O.P. No. 1 while dismissing the amendment application moved by the petitioner/defendant at an appellate stage, I do not find any illegality or infirmity in the impugned order under challenge in the present writ petition, hence, the same lacks merit. 14. In the result, the writ petition is dismissed. 15. No order as to costs.