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2017 DIGILAW 1945 (ALL)

Ram Chandra v. Kumesh Kumari

2017-08-23

MAHENDRA DAYAL

body2017
JUDGMENT : Mahendra Dayal, J. This writ petition is directed against the order dated 08.10.2007, passed by 4th Additional District Judge, Sultanpur in Regular Civil Appeal No. 57 of 2006, whereby the amendment application moved on behalf of the petitioner, has been rejected. 2. The facts in brief are that the respondent No. 1 filed a suit, being Regular Suit No. 11 of 1996, against the petitioner for specific performance of contract. It was inter-alia stated that the respondent No. 1 had paid a sum of Rs. 80,000/- as advance for the said contract. The petitioner filed written statement stating that the property had been purchased by his father and, therefore, it was part of ancestral property. The house was partitioned in 1977, in which, the house in question was allotted in the share of the petitioner and his four sons. Thus, the share of the petitioner in the house was only 1/5th. It was also pleaded in the written statement that it was specifically mentioned in the agreement that in case the sale-deed is not executed within the stipulated time, she shall repay the principal amount of Rs. 80,000/- together with a sum of Rs. 30,000/-. After the evidence of the parties was recorded before the trial court, the arguments were heard and the suit filed by the respondent No. 1 was decreed for payment of Rs. 1,10,000/- together with interest @ 5% per annum. The respondent No. 1 feeling aggrieved, filed appeal. During the pendency of the appeal, the petitioner sought amendment in the written statement to add Para-18C stating that during the last 17 years, the market value of the property was increased and since the agreement for sale in question was for only Rs. 2.40 lacs, the same was not en-forcible. The new Para-24A was also sought to be added taking the plea that the suit was barred by the provisions of Sections 14 & 20 of the Specific Relief Act. This application was opposed by the respondent. The main ground for objection was that the suit was pending since 1996 and there was no need of any amendment in the pleadings. The new facts sought to be introduced by way of amendment were already there in the written statement. 3. This application was opposed by the respondent. The main ground for objection was that the suit was pending since 1996 and there was no need of any amendment in the pleadings. The new facts sought to be introduced by way of amendment were already there in the written statement. 3. It appears from the perusal of the impugned order that the learned Appellate Court rejected the application mainly on the ground that the facts sought to be introduced in the written statement by way of amendment, were already there in the written statement. Moreover, the amendment could not be allowed at the appellate stage when there was no need to permit such amendment. The appellate Court was also of the view that for proper adjudication of appeal, the amendment was not necessary. 4. I have heard learned counsel for the parties and perused the record. 5. The contention of the learned counsel for the petitioner is that by way of amendment, the petitioner wanted to take a legal plea that the suit was barred by provisions of Sections 14 & 20 of the Specific Relief Act. This amendment being purely legal did not require any evidence and as such the amendment ought to have been allowed by the learned appellate Court. It has also been submitted that it is a settled law that the legal plea can be raised at any stage of the proceedings. The appeal is a continuation of the suit and the proposed amendment neither change the nature of pleadings nor in any way prejudice the case of the respondent. So far as the addition of new Para-18A, B & C are concerned, the submission of the learned counsel is that by way of adding these paras, the petitioner wanted to further explain the pleadings already existed in the written statement. The amendments sought by the petitioner were only explanatory and ought not have been rejected by the appellate Court. 6. In support of his contention, learned counsel for the petitioner has placed reliance upon a decision of the Hon'ble Apex Court, reported in 2012 (30) LCD Page 739 (SC), in which, it has been held by the Hon'ble Apex Court that liberal approach in allowing amendment of pleadings should be the general rule particularly, in cases, where the other side can be compensated with costs. The amendments should also be allowed in the pleadings to avoid multiplicity of litigation. 7. Another case law relied upon by the petitioner is reported in 2007 (25) LCD Page 1483 (SC). In this case, the Hon'ble Apex Court has held that it is well settled, that the delay is no ground for refusal of prayer for amendment. While allowing an application for amendment of the pleadings, the Court cannot go into the question of merit of such amendment. The only question at the time of consideration at this stage would be, whether such amendment would be necessary for decision of the real controversy between the parties in the suit. 8. In 2009 (27) LCD Page 1096 (SC), the Hon'ble Apex Court has again examined the scope of amendment and has held that the amendment in the pleading in order to clarifying the earlier pleading, should be allowed. It has also been held that the amendment of plaint and amendment of written statement, are not governed by the same principle. Adding a new ground of defence or substituting a defence does not raise the same problem as adding or substituting a new cause of action. Thus, the law relating to amendment of written statement is more flexible than the law with regard to amendment in plaint. 9. In another case reported in (2001) 8 SCC Page 97, the Hon'ble Apex Court has held that an amendment for the purpose of elaborating the defence and taking additional pleas in support of the case, should be allowed. Where there is an indirect admission in the pleadings, it is open for the defendant to explain the same. 10. Learned counsel for the petitioner relying upon the aforesaid judgments and has submitted, that the impugned order rejecting the amendment application is against the settled principles of law and the same is liable to be set aside. 11. Learned counsel for the respondent has submitted that the amendment can be allowed at the appellate stage or at any stage of the proceedings only if it is established that the amendment is necessary for the purpose of deciding the controversy between the parties. In this case, it has not been shown as to how the proposed amendment would facilitate the Court in deciding the controversy. In this case, it has not been shown as to how the proposed amendment would facilitate the Court in deciding the controversy. Moreover, no reason has been shown as to why these amendments were not sought in the written statement before the trial court. Learned counsel has referred to the provision of Order 6, Rule 17 CPC after the amendment, in which, it is clearly mentioned 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 parties could not raise the matter before the commencement of the trial. According to the learned counsel for the respondent, in this case, the trial has not only commenced, but also concluded and the matter is at the appellate stage. Unless, the petitioner shows as to why the amendment could not be sought earlier, the same cannot be allowed. Learned counsel has relied upon an unreported judgment of this Court rendered in Writ Petition No. 7225 of 2015 (MS) - Kuldeep Saxena v. Additional District Judge & Ors., in which, a Coordinate Bench of this Court has held that after the amendment in Code of Civil Procedure, a new proviso has been added to Rule 17 of Order 6 CPC which curtails absolute discretion to allow amendment to any stage. Now, if the application is filed after commencement of trial, it has to be shown that in-spite of the due diligence, such amendment could not be sought earlier. The object of this proviso, is to prevent frivolous application which are filed to delay the trial. 12. In reply to the aforesaid arguments, the submission of the learned counsel for the petitioner is that the proviso added to Rule 17 of Order 6 CPC, is not applicable in the present case for the reason that the original suit was filed by the respondent No. 1 in the year 1996 i.e. much before the Code of Civil Procedure Amendment Act, 2002. The learned counsel has relied upon a decision of the Hon'ble Apex Court reported in (2007) 1 SCC Page 765 - State Bank of Hyderabad v. Town Municipal Council. The learned counsel has relied upon a decision of the Hon'ble Apex Court reported in (2007) 1 SCC Page 765 - State Bank of Hyderabad v. Town Municipal Council. In this case, the Hon'ble Apex Court while referring to section 16(2) of the CPC Amendment Act, 2002, has held that the Amending Act of 2002 will not apply in respect of any pleading filed before the commencement of section 16 of CPC Amendment Act, 1999 and Section 7 of this Act. 13. From a perusal of the aforesaid judgment of the Hon'ble Apex Court, it is clear that the proviso added to Rule 17 of Order 6 shall not apply in the present case for the reason that the pleadings were filed much before the commencement of the Amending Act. 14. Now coming to the merits of the case, it has been held by the Hon'ble Apex Court in several decisions that delay is no ground to refuse the amendment in pleadings. It is also a well settled law that the amendment of written statement stands on different footing than the amendment of plaint because the defendant is permitted to raise alternative pleas and take legal pleas at any stage of the proceedings. The amendment sought by the petitioner in the written statement will not in any way change the nature of defence or will prejudice the rights of the respondent. 15. In view of above, I find that the order impugned in this writ petition, has not been passed by the appellate Court keeping in view the settled principles of law and as such the same is liable to be quashed. Consequently, the amendment application moved on behalf of the petitioner for amendment of written statement, deserves to be allowed, but subject to payment of cost. 16. In the result, the writ petition is allowed and the impugned order dated 08.10.2007 passed by 4th Additional District Judge, Court No. 4, Sultanpur in Regular Civil Appeal No. 57 of 2006 is set aside. The amendment application filed by the petitioner for amendment of written statement is allowed subject to payment of Rs. 1,000/- as cost payable to the respondent No. 1. The petitioner shall be permitted to make amendment in the pleadings within three weeks after payment of cost to the respondent No. 1. The amendment application filed by the petitioner for amendment of written statement is allowed subject to payment of Rs. 1,000/- as cost payable to the respondent No. 1. The petitioner shall be permitted to make amendment in the pleadings within three weeks after payment of cost to the respondent No. 1. The respondent No. 1 shall also be permitted to file reply of the amended written statement within the time prescribed by the appellate Court and thereafter the appeal shall be heard on merit and shall be decided in accordance with law.