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2014 DIGILAW 455 (CAL)

Suman Bakshi v. Arandhana Investment Ltd.

2014-05-15

DEBANGSU BASAK

body2014
Judgment Debangsu Basak, J. In a suit of 1995 the sole defendant applied for amendment of its written statement. It was contended on behalf of the defendant that, Courts must be liberal in allowing amendment more so when amendment to written statement was sought. The proposed amendments to the written statement did not alter the nature and character of the written statement. The proposed amendments merely explained the case of the defendant in greater detail. According to the defendant, the trial of the suit did not commence. The first witness of the plaintiffs was examined in chief. The defendant could not apply for amendment earlier as the previous Advocate-on-record died. The defendant applied for amendment of the written statement immediately after the present Advocate-on-record was engaged by the defendant. The defendant relied upon the provisions of Order VI Rule 17 of the Code of Civil Procedure, 1908 and on 2012 AIR Supreme Court Weekly page 5419 (Abdul Rehman & Anr. v. Mohd. Ruldu & Ors.), 2007 Volume 6 Supreme Court Cases page 167 (Andhra Bank v. ABN Amro Bank N.V. & Ors.), 2006 Volume 6 Supreme Court Cases page 498 (Baldev Singh & Ors. v. Manohar Singh & Anr.) and 2005 Volume 13 Supreme Court Cases page 89 (Sajjan Kumar v. Ram Kishan) on the point of amendment. It was also contended by the defendant that, no prejudice would be caused to the plaintiffs in the event the amendments as prayed for were allowed. On behalf of the plaintiffs the amendment application was opposed. The proposed amendments were commented upon. It was submitted that, the proposed amendments narrated facts which were known to the defendant at the point when they filed the written statement. In the application of the defendant there was no explanation as to the facts which were not known to the defendant at the time of filing of its written statement and the facts which they subsequently discovered. It was contended that since the trial of the suit had commenced the defendant’s right to obtain an order for amendment was restricted only by the proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908. The defendant was required to make out a case coming within the proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908 for the proposed amendments to be allowed. The defendant was required to make out a case coming within the proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908 for the proposed amendments to be allowed. Such case was not made out by the defendant in the application. It was also contended on behalf of the plaintiffs that, by the proposed amendments the defendant was seeking to introduce a new case which was inconsistent with the existing written statement. Paragraph 7 of the written statement which was one of the amendments proposed was commented upon by the plaintiffs. It was submitted that, the basis of the defence of the defendant was sought to be changed by the proposed amendment. The nature and character of the written statement was sought to be changed by the proposed amendment. According to the plaintiffs, the death of the erstwhile Advocate-on-record of the defendant was no ground at all. The trial of the suit had commenced in July, 2004 in presence of the defendant. The witness of the plaintiffs was examined. Subsequent thereto several orders were passed which recorded that the defendant was not appearing in the suit and was avoiding the hearing of the suit. It was also contended on behalf of the plaintiffs that, two previous attempts to amend the written statement were made. The amendments proposed now were sought to be incorporated then without success. I have considered the rival contentions of the parties and the materials on record. The suit was for specific performance and other relief. Written statement in the suit was filed in February, 1998. The trial of the instant suit commenced in July, 2004 and the examination-in-chief of the first witness of the plaintiffs was concluded on August 13, 2004. Subsequent thereto the defendant did not appear in the suit for a considerable period of time as noted in various orders of the Court. The present application was the third attempt by the defendant to amend the written statement. Initially the defendant sought to introduce new pleas in the written statement already on record. The plaintiffs applied for expunging such additional written statement. By an order dated March 17, 2004 the Court was pleased to direct the additional written statement filed by the defendant to be stuck off. The original plaintiffs died on October 5, 2013. The plaintiffs applied for substitution and amendment consequent to such death. The plaintiffs applied for expunging such additional written statement. By an order dated March 17, 2004 the Court was pleased to direct the additional written statement filed by the defendant to be stuck off. The original plaintiffs died on October 5, 2013. The plaintiffs applied for substitution and amendment consequent to such death. The substitution application was allowed on November 29, 2013. The defendant was allowed to file additional written statement consequent to the amendment of the plaint. The defendant filed an additional written statement which was not limited to the amendment of the plaint allowed. The plaintiffs took out an application for expunging such additional written statement. At the hearing of such application the defendant withdrew the additional written statement and sought leave to file additional written statement dealing with the amended portion of the plaint only. The defendant did not file any additional written statement to the amendments to the plaint. Contrary to the contention of the defendant that, the trial of the suit did not commence I found from the record that the examination-in-chief of the witness of the plaintiffs commenced in July 2004 and concluded in August 2004. Since, thereafter, the defendant was not appearing in the suit. Therefore, since the witness action had commenced it could not be said that the trial of the suit did not commence. In the present application the defendant did not adequately explain its conduct of not applying for amendments to the written statement earlier. The plea of death of the earlier Advocate-on-record did not explain the entirety of the period of delay. In Abdul Rehman (supra) the Supreme Court was of the view that the parties to the suit were permitted to bring forward amendment of their pleadings at any state of the proceeding for the purpose of determining the real controversy between them. The Courts have to be liberal in accepting the same. In Andhra Bank (supra) the amendment to the written statement was allowed. Their Lordships were of the view that the only question at the time of considering the amendment of pleadings would be whether such amendment necessary for decision of the real controversy between the parties in the suit or not. In Andhra Bank (supra) the amendment to the written statement was allowed. Their Lordships were of the view that the only question at the time of considering the amendment of pleadings would be whether such amendment necessary for decision of the real controversy between the parties in the suit or not. In Baldev Singh (supra) the Supreme Court was of the view that Courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss was caused to the other side. So far as amendment to written statement was concerned, it was held that, the Courts were inclined to be more liberal in allowing written statement than of plaint as the question of prejudice was less likely to operate with the same rigor in the former than in the later. Therefore, inconsistency could be raised by the defendants in the written statement although the same may not be permissible in the case of plaint. In Sajjan Kumar (supra) it was held that, when the proposed amendment was necessary to bring the real question in controversy between the parties to the fore it ought to be allowed. Courts were required to be liberal in allowing amendments. In the case of amendment to written statement, a defendant may be allowed to raise inconsistent pleas. With all due respect, it could not be accepted that by the proposed amendments the defendant was seeking to change the nature and character of the written statement. The defendant was seeking to explain events with regard to the transactions in question by the proposed amendments. The amendments proposed were required for adjudicating the real controversy between the parties. Order VI Rule 17 was amended by the Code of Civil Procedure (Amendment) Act, 2002. Section 16(2)(b) of the Act of 2002 provided that the provisions of Rule 17 of Order VI of the First Schedule as omitted, or as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of the Act of 2002 shall not apply to any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of the Act of 2002. The suit was filed in 1995. The defendant was, therefore, not within the rigors of Order VI Rule 17 as it stood today. The suit was filed in 1995. The defendant was, therefore, not within the rigors of Order VI Rule 17 as it stood today. Considering that the defendant was not changing the nature and character of the written statement by the proposed amendments and that the amendments were required to adjudicate upon the real controversy between the parties and that the Courts were required to be liberal with amendment and more liberal while considering an amendment to the written statement I allow the defendant to amend the written statement in the manner proposed. However, since the trial of the suit has commenced and since the defendant could not explain the delay adequately I am of the view that the plaintiffs should be compensated by costs. The defendant will pay the plaintiffs costs assessed at Rs. 25,000/-as a condition precedent to the proposed amendments being incorporated in the written statement. The defendant will pay such costs to the plaintiffs within June 10, 2014. The department will carry out the amendments proposed in the written statement within two weeks after the communication the payment of costs by the defendant to the plaintiffs being made to the department by the Advocate for the defendant along with the communication of this order. So far as the issues settled for trial were concerned, I am of the view that, new issues could be framed for trial. G. A. No. 1221 of 2014 is allowed accordingly.