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Himachal Pradesh High Court · body

2015 DIGILAW 1851 (HP)

Champa Mahajan v. Manju Mamik

2015-12-11

RAJIV SHARMA

body2015
JUDGMENT : RAJIV SHARMA, J. 1. This petition is instituted against the order dated 29.6.2015, rendered by the learned Civil Judge (Junior Division), Dalhousie, District Chamba in CMA No. 57 of 2009. 2. Key facts necessary for the adjudication of this petition are that the petitioner-plaintiff (hereinafter referred to as the plaintiff), has filed suit for specific performance of contract dated 14.9.1998 and permanent prohibitory injunction against the respondents-defendants (hereinafter referred to as the defendants). During the pendency of Civil Suit, the sole defendant expired on 23.2.2004. The ex-parte decree was passed by the trial Court on 23.7.2005. The plaintiff filed an application for setting aside the abatement and bringing on record the legal representatives of deceased defendant. The defendants challenged the order of setting aside the abatement before this Court by filing Civil Miscellaneous Petition No. 4233 of 2013. The same was dismissed vide order dated 26.8.2014. The defendants moved an application under Order 6 Rule 17 CPC for amendment of the written statement. The reply was filed by the plaintiff. The application was allowed by the learned trial Court on 29.6.2015. Hence, this petition. 3. It is evident from the contents of the application filed under Order 6 Rule 17 CPC vide Annexure P-1 that real sisters and brother of late Sh. Ranjeet Singh filed Civil Suit No. 80 of 2003 against him in the Court of learned Civil Judge (Junior Division), Dalhousie, claiming themselves to be owners in possession of the property comprised in Kh. No. 808, 810, 811, 813 to 819 and 821, as per will dated 16.4.1992 executed by late Smt. Kuldeep Kaur in favour of late Sh. Ranjeet Singh. The lease deed dated 7.4.1994 executed in favour of late Sh. Ranjeet Singh was also challenged. 4. The suit was contested by the defendants, being legal heirs of late Sh. Ranjeet Singh. Late Sh. Ranjeet Singh died during the pendency of the suit. His legal heirs were brought on record. The suit was contested by them. The suit was dismissed on 31.3.2009 by the learned trial Court. The revenue entries existing in favour of late Sh. Ranjeet Singh as well as lease deed were held to be valid. Two separate appeals No. 7 and 8 of 2009 were filed by the sisters and brother of late Sh. Ranjeet Singh before the Court of learned District Judge, Chamba, Himachal Pradesh. The revenue entries existing in favour of late Sh. Ranjeet Singh as well as lease deed were held to be valid. Two separate appeals No. 7 and 8 of 2009 were filed by the sisters and brother of late Sh. Ranjeet Singh before the Court of learned District Judge, Chamba, Himachal Pradesh. The learned District Judge, Chamba, allowed the same on 16.9.2010, whereby the will dated 16.4.1992 was held to be the last and valid Will of late Smt. Kuldeep Kaur. The entries in favour of late Sh. Ranjeet Singh regarding lease and ownership were set aside vide judgment and decree dated 16.9.2010. 5. The defendants filed RSA Nos. 460 and 461 of 2010 before this Court assailing the judgment and decree dated 16.9.2010. These appeals were dismissed on 25.4.2013. The Review Petitions bearing Nos. 4001 and 4002 of 2013 were also dismissed by this Court on 17.6.2014. The SLP preferred against the judgments of this Court were also dismissed on 13.10.2014. It is, in these circumstances, defendants moved an application under Order 6 Rule 17 CPC to bring on record the factum of the litigation arising out of the Civil Suit No. 80 of 2003, which has culminated in the dismissal of SLP on 13.10.2014. 6. This Court is of the considered view that the amendment would not alter the nature of the Written Statement rather it would help to adjudicate the matter finally between the parties. It will also avoid further litigation. The endeavour of the defendants is only to place on record the subsequent developments which have taken place after the filing of the suit preferred by the plaintiff. The judgment rendered by the learned District Judge Chamba, in appeals No. 7 and 8 of 2009 decided on 16.9.2010 and the two RSA decided by this Court bearing Nos. 460 and 461 of 2010 have bearing on the outcome of the present lis between the parties. Moreover, the plaintiff will be given an opportunity to lead evidence. It is settled law that the Courts have to be liberal in allowing the amendments in Written Statement vis-à-vis the plaint. 7. 460 and 461 of 2010 have bearing on the outcome of the present lis between the parties. Moreover, the plaintiff will be given an opportunity to lead evidence. It is settled law that the Courts have to be liberal in allowing the amendments in Written Statement vis-à-vis the plaint. 7. Their lordships of the Hon’ble Supreme Court in the case of Rajesh Kumar Aggarwal and Others vs. K.K. Modi and Others, (2006) 4 SCC 385 , have held that the object of Order 6 Rule 17 CPC is that the Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. The Court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting mala-fide. Their lordships have also held that the Court should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. It has been held as follows:- “15. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 16. Order VI Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. 18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. 18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. 19. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case.” 8. Their lordships of the Hon’ble Supreme Court in the case of Baldev Singh and Others vs. Manohar Singh and Another, (2006) 6 SCC 498 , have held that the Courts should be extremely liberal in granting the prayer for of pleadings unless serious injustice or irreparable loss is caused to the other side. Their lordships again reiterated that amendment of plaint and amendment of written statement are not necessarily governed by exactly the same principle. It has been held as follows:- “8. It is well settled by various decisions of this Court as well as the High Courts in India that Courts should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. It has been held as follows:- “8. It is well settled by various decisions of this Court as well as the High Courts in India that Courts should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. In this connection, reference can be made to a decision of the Privy Council in Ma Shwe Mya vs. Maung Mo Hnaung, AIR 1922 P.C. 249 in which the Privy Council observed:- “All rules of courts are nothing but provisions intended to secure the proper administration of justice and it is, 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. Let us now take up the last ground on which the application for amendment of the written statement was rejected by the High Court as well as the Trial Court. The rejection was made on the ground that inconsistent plea cannot be allowed to be taken. We are unable to appreciate the ground of rejection made by the High Court as well as the Trial Court. After going through the pleadings and also the statements made in the application for amendment of the written statement, we fail to understand how inconsistent plea could be said to have been taken by the appellants in their application for amendment of the written statement, excepting the plea taken by the appellants in the application for amendment of written statement regarding the joint ownership of the suit property. Accordingly, on facts, we are not satisfied that the application for amendment of the written statement could be rejected also on this ground. 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. Accordingly, on facts, we are not satisfied that the application for amendment of the written statement could be rejected also on this ground. 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. This being the position, we are therefore of the view that inconsistent pleas can be raised by defendants in the written statement although the same may not be permissible in the case of plaint. In the case of M/s. Modi Spinning and Weaving Mills Co. Ltd. and Another vs. M/s. Ladha Ram and Co. (1976) 4 SCC 320 , this principle has been enunciated by this Court in which it has been clearly laid down that inconsistent or alternative pleas can be made in the written statement. Accordingly, the High Court and the Trial Court had gone wrong in holding that defendants/appellants are not allowed to take inconsistent pleas in their defence.” 8. Their lordships of the Hon’ble Supreme Court in the case of Usha Balashaheb Swami and Others vs. Kiran Appaso Swami and Others, (2007) 5 SCC 602 , have held that addition of new ground of defence or substituting or altering a defence or taking inconsistent pleas in written statement can be allowed as long as the amended pleadings do not result in causing grave injustice and irretrievable prejudice to plaintiff or displacing him completely. Their lordships have also reiterated general principles of amendment of pleadings as under:- “16. Their lordships have also reiterated general principles of amendment of pleadings as under:- “16. Before dealing with the question whether the amendment sought for was rightly rejected by the High Court or not, we may first consider the principles under which amendments of pleadings can be allowed or rejected. The principle allowing or rejecting an amendment of the pleadings has emanated from Order 6 Rule 17 of the Code of Civil Procedure, which runs as under:- “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.” 17. From a bare perusal of Order 6 Rule 17 of the Code of Civil Procedure, it is clear that the court is conferred with power, at any stage of the proceedings, to allow alteration and amendments of the pleadings if it is of the view that such amendments may be necessary for determining the real question in controversy between the parties. The proviso to Order 6 Rule 17 of the Code, however, provides that no application for amendment shall be allowed after the trial has commenced unless the court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. However, proviso to Order 6 Rule 17 of the Code would not be applicable in the present case, as the trial of the suit has not yet commenced. 18. 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 bona-fide one. In this connection, the observation of the Privy Council in the case of Ma Shwe Mya vs. Maung Mo Hnaung, AIR 1922 P.C. 249 may be taken note of. In this connection, the observation of the Privy Council in the case of Ma Shwe Mya vs. 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 is, 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.” 19. 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. 20. 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 B.K. Narayana Pillai vs. Parameswaran Pillai, 2000 (1) SCC 712 and Baldev Singh and Others vs. Manohar Singh, 2006 (6) SCC 498 . 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 vs. 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. In this context, we may also refer to the decision of this Court in Basavan Jaggu Dhobi vs. 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 Dhobi's case (supra) as follows:- “3. 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.” 21. 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. vs. Jardine Skinner and Co. AIR 1957 SC 357 , 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.” 22. Keeping these principles in mind, namely, that in a case of amendment of a written statement the Courts would be more liberal in allowing than that of a plaint as the question of prejudice would be far less in the former than in the latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed, we may now proceed to consider whether the High Court was justified in rejecting the application for amendment of the written statement.” 9. In the instant case, the trial Court has exercised the jurisdiction in allowing the amendment of Written Statement considering all principles of law and the material on record. 10. Consequently, there is no merit in this petition, the same is dismissed, so also the pending applications, if any.