Smt. Bala vs Raj Kumar
2018 Latest Caselaw 664 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										A.F.R.
 
Court No. - 19
 
Case :- MATTERS UNDER ARTICLE 227 No. - 8679 of 2017
 
Petitioner :- Smt. Bala
 
Respondent :- Raj Kumar
 
Counsel for Petitioner :- Vinayak Mithal
 
Counsel for Respondent :- Shodan Singh
 

 
Hon'ble Manoj Kumar Gupta,J.

The instant petition under Article 227 of the Constitution invoking supervisory jurisdiction of this Court has been filed challenging the order dated 22.7.2016, whereby the Additional District Judge, Meerut has refused to take additional written statement filed by the petitioner in the appeal. The petitioner has also challenged the order dated 2.11.2017 passed on the application, whereby the pleas which the petitioner wanted to bring on record by additional written statement but were declined, were sought to be introduced by amendment of the written statement. The Additional District Judge has rejected the said application as well.

The petitioner was defendant in Original Suit No.38 of 2011 filed by the plaintiff-respondent for cancellation of a sale deed and for permanent injunction. She filed a written statement on 20.5.2011. During the pendency of the suit, the plaintiff-respondent filed an application under Order 6 Rule 17 on 25.8.2011 seeking amendment of the plaint. The petitioner filed objections against the same. However, the trial court allowed the amendment application by order dated 30.8.2011 on payment of a cost of Rs.100/- and granted time to the petitioner to file additional written statement. The court also fixed 2.9.2011 as the next date for disposal of the application for temporary injunction. On 2.9.2011, the plaintiff brought on record the receipt Paper No.44 Ga evidencing payment of cost of Rs.100/- to the petitioner and by means of another application, requested for further time being granted to incorporate the amendments. The application was allowed on the same date after hearing the parties and the plaintiff-respondent was permitted to incorporate the amendment within two days and 5.9.2011 was fixed for disposal of the application for temporary injunction.

It is not in dispute that in pursuance of the order of the trial court dated 2.9.2011, the plaintiff-respondent carried out the amendment in the plaint. The petitioner however did not file any additional written statement as permitted by order dated 30.8.2011, while allowing the amendment. The parties led oral and documentary evidence and the suit was ultimately decreed by judgement dated 31.1.2012. The petitioner being aggrieved thereby filed Civil Appeal No.29 of 2012. After four years of pendency of the civil appeal, the petitioner filed application 41-C seeking permission to file additional written statement in response to the pleadings which were introduced by amendment in the plaint while the suit was pending before the trial court. The application was rejected by the appellate court by order dated 22.7.2016. The petitioner thereafter filed another application Paper No.45-C by which she sought permission to amend the original written statement and thereby the same plea which she sought to bring on record by means of additional written statement, were sought to be introduced. The said application has also been rejected by the appellate court by order dated 2.11.2017.

Learned counsel for the petitioner submitted that the petitioner was never made aware of the fact that the plaintiff had carried out amendment of the plaint in pursuance of order dated 2.9.2011 nor the trial court, after the amendment was actually carried out, granted time to the petitioner to file additional written statement. It is urged that since proper opportunity to file additional written statement was not granted at the trial stage, therefore, the petitioner rightly filed the applications before the appellate court, but which have been rejected erroneously. He has placed reliance on the judgements of the Supreme Court in Ramnik Vallabhdas Madhvani and others Vs. Taraben Pravinlal Madhvani, (2004) 1 SCC 497 and Gurdial Singh and others Vs. Raj Kumar Aneja and others, AIR 2002 SC 1003 and on judgement of Punjab and Haryana High Court in Jai Singh and another Vs. N.A. Subramaniam and another, AIR 1982 Punjab & Haryana 407 and that of High Court of Delhi in Anant Construction (P) Ltd. Vs. Ram Niwas, (1995) ILR 2 Delhi 76.

On the other hand learned counsel for the respondent submitted that the applications filed by the petitioner in appeal were wholly frivolous. The petitioner was given time to file additional written statement, but she did not avail of the said opportunity. She led oral and documentary evidence knowing fully well that the amendment has been duly incorporated in the plaint. The appeal was filed in the year 2012 and in which she did not take any plea that she was not given proper opportunity to file additional written statement or that the carrying out of the amendment in the plaint was not in her knowledge. It is urged that the appellate court has recorded a categorical finding that the applications were filed with oblique intention of delaying the disposal of the appeal, which was being listed for final hearing since a long time, but the proceedings whereof could not be concluded as the petitioner has been getting the matter adjourned on one ground or the other.

I have considered the rival submissions and perused the impugned orders and the material placed on record.

The amendment to the pleadings is in the realm of procedural law. Order 6 Rule 17 is the enabling provision which permits the party to seek amendment in the pleadings and invests the court with the power to allow an application made in that regard. Order 6 Rule 17 was amended by Act No.22 of 2002 and a proviso was inserted, whereby the power of the court to permit amendment has been curtailed to certain extent. While the main substantive provision confers unfettered power in the courts to allow all amendments which are necessary for determining the real question in controversy between the parties, the proviso added by Act No.22 of 2002 is with intent to foil attempt by an unscrupulous litigant to employ the provision as a tool to procrastinate litigation. Now, a party seeking amendment after commencement of the trial has to satisfy the court that despite exercise of due diligence, it was not possible for him to raise the matter before the commencement of the trial. Undoubtedly, appeal being continuation of the proceedings of the suit, the appellate court is also invested with full power to permit amendments in the pleadings, but the restrictions introduced by proviso to Order 6 Rule 17 would be applicable with much greater rigour at the appellate stage.

Before considering whether the appellate court was justified in refusing to take on record additional written statement and permit amendment in the written statement at the appellate stage, I would like to make a brief reference to the judgments cited by learned counsel for the petitioner in support of his contentions.

Ramnik Vallabhdas Madhvani (supra), the Supreme Court was considering the case whether the court was justified in deciding the appeal against a preliminary decree on the date it allowed amendment of the plaint enhancing claim of interest from 6% per annum as originally pleaded to 16% per annum. In the aforesaid background, the Supreme Court, while considering whether there was any error of procedure on part of the High Court in deciding the appeal on the same date on which amendment was allowed without granting the other side opportunity to contest the plea introduced by amendment, observed as under:-

"The procedural aspect demands that on the amendment being allowed, the opposite party has to be given a chance to respond to the amended pleading and if the plea is contested, the Court has to give its decision thereon. Not affording an opportunity to the contesting party to contest a plea, which has been allowed to be amended, is negation of justice. In the present case the fact remains that amendment application of the plaintiff was allowed vide order dated 16-12-1985 when on the same date the appeal against the preliminary decree was disposed of and rate of interest going even beyond what was permitted by way of amendment, was awarded. The decree which was passed was for much more than what the amendment allowed. The plaintiff had only sought leave to amend the rate of interest as originally pleaded as 6% per annum to 13% per annum. This amendment was allowed. But in the decree the Court allowed interest to be charged at the prevailing bank rate of interest charged by nationalised banks from time to time on commercial transactions during the relevant period. Thus the High Court while allowing the prayer for amendment simultaneously passed a decree not only based on the amended plea, but for exceeding it. No amended pleadings were filed. No opportunity was given to defendants to contest the plea. A bare reading or Order 6 Rule 17 of the Code of Civil Procedure shows that amendment is of a plea contained in the pleadings and the object of allowing amendment of pleadings is to determine the real questions in controversy between the parties. This means the parties have to be given a chance to contest the questions in controversy and the court has to give its decision ultimately on such contested issues. This procedure was not followed in the present case. The procedure followed is wholly illegal."

In Gurdial Singh and others (supra), the Supreme Court again held that where a party is permitted to amend his pleadings, an opportunity has to be given to the opposite party to amend his pleadings as well. The amendments which are made by the other party are known as consequential amendment as they are necessitated because of amendment made in the pleadings by the other side. Thus, while the other side can seek consequential amendment as of right but such consequential amendments are to be limited as a traverse to the plea introduced by amendment, but under the garb thereof, new amendment cannot be sought. The observations made in this regard in paragraph 20 of the law report are as under:-

"When one of the parties has been permitted to amend his pleading, an opportunity has to be given to the opposite party to amend his pleading. The opposite party shall also have to make an application under Order 6 Rule 17 of the CPC which, of course, would ordinarily and liberally be allowed. Such amendments are known as a consequential amendments. The phrase "consequential amendment" finds mention in the decision of this Court in Bikram Singh & Ors. Vs. Ram Baboo & Ors. AIR 1981 SC 2036. The expression is judicially recognized. While granting leave to amend a pleading by way of consequential amendment the Court shall see that the plea sought to be introduced is by way of an answer to the plea previously permitted to be incorporated by way of amendment by the opposite party. A new plea cannot be permitted to be added in the garb of a consequential amendment, though it can be applied by way of an independent or primary amendment. "

In Anant Construction (P) Ltd. (supra), Hon'ble R.C. Lahoti, J (as he then was) reiterated the principle that where a pleading is allowed to be amended, an opportunity has to be afforded to the opposite party to meet the new case by filing an additional written statement, by observing as under:-

"(22) Whenever a pleading is allowed to be amended an opportunity has to be afforded to the opposite side to meet the new case by filing an additional statement ( see Note 14 below Order 6 Rule 17 Civil Procedure Code by Manohar & Chitley). If the plaint is amended, written statement has to be amended so as to incorporate a denial or defendant's plea, as the case may be, in view of Order 8 Rule 3 and 5 CPC. If the written statement is amended, the plaint need not necessarily be amended as the plaintiff may rely on the rule of assumed traverse. If a replication many become necessary, leave may be allowed to file the same but confined to the plea newly introduced in the written statement by way of amendment."

In Jai Singh and another (supra), the Punjab High Court reiterated the legal position that an opportunity has to be afforded to the opposite side to meet the new case introduced by amendment, by filing additional written statement.

There is absolutely no quarrel with the proposition that when a party is permitted to amend his pleadings, the other side has to be given an opportunity to rebut the same by seeking amendment in the pleadings already made or by filing additional written statement or replication, as the case may be. In the instant case, the trial court while allowing amendment of the plaint by order dated 30.8.2011 awarded cost of Rs.100/- to the petitioner and also granted her time to file additional written statement. In terms of the said order, the plaintiff-respondent paid the cost and the same was also duly accepted by the petitioner, as is evident from the receipt Paper No.41-C brought on record before the trial court on the very next date i.e. 2.9.2011. However, the petitioner despite being provided with the opportunity to file additional written statement, did not file the same. The contention of learned counsel for the petitioner is that additional written statement could not be filed as the pleadings were not amended by the next date. It is also the case of the petitioner that subsequently when the amendment was carried out, she was not informed about the said fact nor she was given further time to file additional written statement. In other words, the case of the petitioner is that the factum of carrying out of the amendment was not in the knowledge of the petitioner nor her counsel and consequently, she could not file additional written statement.

Order 6 Rule 18 reads as under:-

"18. Failure to amend after order.- If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is hereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court."

An amendment after being allowed has to be carried out in accordance with the requirements laid down under Rule 18 of Order 6. Admittedly, on 2.9.2011 the court granted two days further time to the plaintiff-respondent to carry out amendment in the plaint. It is not disputed that the said order was passed after hearing both the parties. Even before 2.9.2011, cost of Rs.100/- was duly accepted by the counsel for the petitioner. The amendment was actually carried out on 3.9.2011 and there is an endorsement of the concerned clerk to the said effect on the order sheet. The issues were framed on 24.11.2011 much after the amendment was duly incorporated in the plaint. It is evident from the judgment of the trial court that the petitioner led oral and documentary evidence in support of her case. It is also evident from the perusal of the judgment of the trial court that the trial court had duly taken notice of the amended pleadings while narrating the plaint case as well as while returning findings on various issues. It is further evident from the judgment that one of the material pleas which was introduced by amendment that the witnesses of the sale deed were relatives of the petitioner and that the petitioner did not had financial capacity to pay huge amount of Rs.12 lakhs in cash as sale consideration, were duly rebutted by leading evidence. Consequently, it is difficult to accept that the petitioner nor her counsel were aware of actual carrying out of the amendment in the plaint. Moreover, as noted above, once the petitioner had accepted cost awarded in her favour on account of amendment being allowed, it does not lie in her mouth to contend that she was under the impression that amendment was not carried out, consequently, she could not file the additional written statement.

It is apposite to note that against the judgment of the trial court decreeing the suit, the petitioner file appeal in the year 2012. In the memo of appeal, the petitioner did not take any ground to the effect that carrying out of the amendment in the plaint was not in her knowledge or any prejudice has been caused to her because of not filing the additional written statement. The appellate court has entered a specific finding that albeit fixation of several dates for hearing of the appeal, the petitioner had been deliberately delaying the disposal of the same and filed application for filing additional written statement and thereafter for amendment of the written statement in the year 2016 with the sole intent of keeping the proceedings alive. This Court concurs with the findings of the appellate court that the applications were not bonafide but a device to procrastinate the litigation.

Having regard to the above, this Court does not find any ground which may warrant interference with the impugned orders. The petition lacks merit and is dismissed.

(Manoj Kumar Gupta, J)

Order Date :- 18.5.2018

SL