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2018 DIGILAW 146 (CAL)

Sarala Devi Derasaria v. Manik Lal Sharma

2018-01-18

SABYASACHI BHATTACHARYYA, SANJIB BANERJEE

body2018
JUDGMENT : 1. The appeal arises out of an order rejecting an application for amending the plaint. 2. Certain unnecessary, tasteless and objectionable allegations were made both in the memorandum of appeal and in the stay petition. However, by way of GA No.151 of 2018 and GA No.152 of 2018 the appellant has expressed the deepest regret and sought leave to withdraw the needless allegations levelled in course of the memorandum of appeal and the stay petition being prepared. 3. The memorandum of appeal and the stay petition will stand amended as indicated in red ink in the proposed copies thereof appended to GA No.151 of 2018 and GA No.152 of 2018. The apology tendered by the appellant is accepted. 4. The suit is one for recovery of money. The plaint case is that a loan was advanced to the defendants in certain tranches by cheques. The suit was instituted in 2011 and a written statement was filed within reasonable time indicating that no loan that was obtained by the defendants from the plaintiff and the payments made by the plaintiff were on account of certain iron goods sold and delivered by the defendants to the plaintiff. 5. Despite the written statement being filed some time in 2011 or early 2012, no steps were taken by the plaintiff to seek leave to amend the plaint to deal with such defence or to file additional pleadings in the form of a replication. In due course, the issues were framed some time in 2017 and one of the issues pertained to whether the payments were on account of price of goods sold and delivered by the defendants to the plaintiff. It was at such time that it dawned on the plaintiff to apply for amending the plaint, inter alia, to indicate that the plaintiff had no truck with any iron or iron goods business and there could have been no occasion for the plaintiff to purchase such goods. The nature of the proposed amendment was such that it may be relevant in the context of the defence indicated in the written statement. 6. The nature of the proposed amendment was such that it may be relevant in the context of the defence indicated in the written statement. 6. The application was rejected, not on the ground that the trial had commenced and the application was filed at such stage where it would be hit by the proviso to Order VI Rule 17 of the Code, but on the ground that the plaintiff was seeking to alter her stand and the very nature and character of the suit would be changed if the amendment were to be allowed. 7. Several judgments were cited on behalf of the defendants in the trial court and one of them, reported at (2009)10 SCC 84 , has also been placed at the hearing of the appeal. The defendants seek to support the order impugned, primarily, on the ground that the amendment was not necessary in the context of the suit. 8. A claim for recovery of money was made and an answer came in the written statement that the money said to have been paid by the plaintiff to the defendants was in discharge of the plaintiff’s debt on account of price of goods sold and delivered. If the plaintiff sought, thereafter, to indicate that the plaintiff had no interest to purchase the kind of goods suggested to have been sold to her by the defendants – whether or not such allegation was of any merit – it could not be said that the amendment was unnecessary or had no nexus with the subject-matter of the suit or that it was unnecessary to be incorporated to decide the real controversies between the parties. Indeed, the authority cited by the defendants indicates that Courts are generous in allowing pleadings to be amended as long as they do not cause gross injustice or prejudice to the adversary. As to matters which are seen to be necessary in the context of the action or to decide the real controversies between the parties, the Courts make every attempt to incorporate the same by, at times, allowing costs to be paid to the adversary if the amendment is filed at a belated stage. 9. As to matters which are seen to be necessary in the context of the action or to decide the real controversies between the parties, the Courts make every attempt to incorporate the same by, at times, allowing costs to be paid to the adversary if the amendment is filed at a belated stage. 9. It may also be of some significance that the proviso to Order VI Rule 17 of the Code does not altogether debar a belated application for amendment; it only requires the party seeking the amendment to demonstrate that despite exercise of best diligence such amendment could not have been sought to be incorporated earlier. 10. Since it is evident that the amendment that was sought to be introduced was to deal with the defence indicated in the written statement, it cannot be said that such amendment was unnecessary. Again, in the context of the claim in the suit and the defence, the amendment ought to have been allowed to adjudicate on the real controversies between the parties. 11. As a consequence, the order impugned dated November 13, 2017 cannot be sustained and the same is set aside. The appellant’s amendment application, GA No.2277 of 2017, filed before the trial Court is allowed. The amendment should be incorporated within a period of three weeks from date and the parties will be at liberty to request the trial Court to take up the matter as expeditiously as possible after the additional written statement is filed by the defendants within four weeks of the receipt of the copies of the amended plaint. 11. For the delay on the part of the appellant between 2012 and 2017 for seeking the amendment, the appellant will pay costs assessed at 500 GM to the defendants. Such payment of costs would a condition precedent to the order of amendment being carried out. 12. APO No.574 of 2017, GA No.4049 of 2017, GA No.151 of 2108 and GA No.152 of 2018 are disposed of as above. 13. Urgent certified website copies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.