Bombay High Court

The General Manager vs Rakshak Industrial Security on 3 December, 2013

Bench: S.S. Shinde

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD
                                    




                                          
                  WRIT PETITION NO. 1769 OF 2013

     The General Manager,
     Bharat Sanchar Nigam Ltd.,
     D.T.O. Compound, Telephone Bhavan,




                                         
     Ahmednagar 414 001, Through
     Shri. A.S. Sonawane, Age: 49 years,
     Occ: S.D.E. (Legal), BSNL,
     Ahmednagar.                               ...PETITIONER




                                  
          VERSUS   
     1.   Rakshak Industrial Security
          Agency Pvt. Ltd.,
                  
          Through its Managing Director, 
          Lt. Col. Selvan Adik Thiruwarul (Rtd.),
          Age: 56 years, Occ: Contractor,
          R/o. Rakshak Industrial Security
          Agency Pvt. Ltd. B-108,
      

          Juinagar Station Complex,
          Navi Mumbai - 400 705.
   



     2.   The Chairman & Managing Director,
          Bharat Sanchar Nigam Ltd.,
          5th Floor Sanchar Bhavan,
          20, Ashoka Road, 





          New Delhi - 100 001.

     3.   The Chief General Manager,
          Bharat Sanchar Nigam Ltd.,
          Juhu Dauda, Santa Cruz (W),
          Mumbai 400 054.                     ...RESPONDENTS





                                                
                               .....
     Mrs.   Manjusha   A.   Deshpande,   Advocate   for   the 
     petitioner.
     Mr. M.D. Joshi, Advocate for respondent No.1. 
                            .....


                          CORAM : S. S. SHINDE, J. 
                                                
                            DATED :  3RD DECEMBER, 2013
                                    


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     JUDGMENT :

. Rule. Rule made returnable forthwith. With

consent of the parties, heard finally.

2. This writ petition takes exception to the

judgment and order dated 15/02/2013 below

Exhibit-56 in Regular Civil Suit No. 251 of 2012

passed by 3rd Joint Civil Judge, Senior Division,

Ahmednagar thereby refusing permission to amend

written statement.

3. Brief facts, leading to file present writ

petition, as disclosed in this petition, are as

under :-

. It is the case of the petitioner that, the

petitioner herein, entered into contract with the

respondent wherein, the respondent agreed to

provide Security Guards to the petitioner on the

terms and conditions mentioned in the contract. The

period of contract was extended from time to time

upto 31-01-2010. It is further case of the

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petitioner that, as per the terms of contract, the

petitioner was to deduct 10% of the amount raised

by the petitioner towards the bill raised for

payment of wages to the Security Guards as security

deposit. Accordingly, the petitioner had deducted

10% each month. On completion of tender period, the

respondent demanded the security amount.

It is further case of the petitioner that,

the petitioner informed the respondent that, unless

the accounts are settled Security Deposit cannot be

refunded. Aggrieved thereby, respondent filed a

suit bearing R.C.S. No. 251 of 2012 for recovery of

Rs. 3,97,640/-. It is the case of the petitioner

that, since there was a stipulation in the contract

that, the contractor shall make good the losses

occurred on account of theft committed in the

premises of petitioner and 2 to 3 times thefts had

occurred in the premises of petitioner. Therefore,

unless the loss occurred could be accounted for the

petitioner, they could not refund the said amount.

. It is further case of the petitioner that,

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the petitioner herein filed written statement in

the suit as aforesaid. After filing of the written

statement when the petitioner solicited certain

information from one of its department, it

transpired that, there was another litigation

pending between the petitioner and the respondent

and the said documents were not available with the

petitioner at the time of filing written statement.

Those documents revealed that, the respondent

failed to make payment of minimum wages to the

security guards, therefore, the Labour Enforcement

Officer directed the petitioner to make the payment

of the differential amount. The petitioner in

compliance of the said order made payment to the

Labour which amounted to Rs. 1,92,554/-. The said

amount was to be recovered from the respondent by

making adjustment from the security deposit,

however, this fact could not be brought on record

while filing the written statement as the documents

were not available with the department instructing

the petitioner at the time of filing the written

statement. Hence, in spite of due diligence it was

not possible for the petitioner to bring the said

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fact on record which was very much relevant and

decisive for deciding the suit, learned Judge of

the Court below has been pleased to dismiss the

application Exhibit-56 seeking amendment of written

statement on the ground that, the application does

not consist the words due diligence, therefore, the

said application has been rejected. Hence, this

writ petition.

4. Learned Counsel appearing for the

petitioner submits that, the Court below has taken

a hyper technical approach while rejecting the

application seeking amendment in written statement.

It is further submitted that, rejection of

permission to amend would entail in multiplying the

litigation, in stead of minimizing the same. The

said amendment is necessary to be incorporated for

effective adjudication of point of controversy

between parties to the suit. It is further

submitted that, petitioner is trying to bring on

record earlier facts which are well within the

knowledge of the respondent, therefore, in no way

it would cause any prejudice to the plaintiff. It

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is further submitted that, portion to be added in

written statement is consistent with the written

statement on record, it does not set up a new case.

He further submitted that, though the trial has

commenced it is not at a belated stage, only

affidavit in support of examination-in-chief by the

plaintiff witness has been filed, therefore, no

prejudice would be caused to the plaintiff. It is

further submitted that, the Court below has wrongly

interpreted the proviso to Order VI Rule 17, which

grants discretionary powers to the Court to allow

amendment even after the commencement of trial, if

the Judge is satisfied that in spite of due

diligence party could not have raised the matter

before the commencement of trial. The said proviso

does not contemplate a statement to be made to that

effect in the application. It is further submitted

that, the ground on which the application is

rejected being contrary to the provisions of law,

is unsustainable.

5. In support of his contention that, prayer

for amendment of the written statement is required

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to be entertained liberally and further prayer for

amendment of the written statement stand on

different footing, learned Counsel appearing for

the petitioner pressed into service exposition of

Supreme Court in the case of Usha Balasaheb Swami

and others vs. Kiran Appaso Swami and others

[2007(5) AIR SCC 602. Learned Counsel for the

petitioner also invited my attention to the

judgment of the Supreme Court in the case of Abdul

Rehman and another vs. Mohd. Ruldu and others [2012

DGLS (Soft.) 462] and submitted that, power of

amendment should be exercised in the larger

interests of doing full and complete justice

between the parties. Relying upon the pleadings in

the petition, grounds taken therein, annexures

thereto, contentions raised in the application for

amendment of written statement and judgments cited

supra, the Counsel appearing for the petitioner

submits that, the writ petition deserves to be

allowed.

6. On the other hand, learned Counsel

appearing for respondent No. 1 vehemently opposed

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the prayer for amendment in written statement. He

invited my attention to the reasons recorded by the

trial Court and submits that, no due diligence has

been disclosed in the application for amendment of

the written statement. It is submitted that,

provisions of Order 6 Rule 17 proviso, of Code of

Civil Procedure mandates that, the application

filed for amendment of the plaint/written statement

can be considered only in case due diligence is

disclosed in such application. It is submitted

that, unless mandate of proviso to Rule 17 Order 6

of Code of Civil Procedure is complied, the Court

has no discretion to allow the amendment. It is

submitted that, the trial Court has rightly

observed that, no due diligence was disclosed in

the application praying for amendment in the

written statement and therefore, the trial Court

has declined to entertain the prayer for amendment.

Therefore, this Court may not interfere in the

impugned judgment and order.

7. Learned Counsel appearing for respondent

No.1 pressed into service exposition of this Couirt

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in the case of Sai Shradha Developers, Sangamner

and others vs. Ravindra Ganpatrao Bharitkar and

others [2012(6) Mh.L.J. 348] and submitted that,

while considering the prayer for amendment of the

plaint/written statement, Court must come to the

conclusion that, in spite of due diligence the

parties could not have raised the matter before the

commencement of the trial. Unless such conclusion

is recorded, Court has no discretion to allow the

prayer for amendment. Learned Counsel further

pressed into service exposition of the Supreme

Court in the case of J. Samuel and others vs. Gattu

Mahesh and others [2012(4) Mh.L.J. 40] and

submitted that, unless Court satisfies itself that

there is a reasonable cause for allowing the

amendment, normally the Court has to reject such a

request. Therefore, the Counsel appearing for

respondent No.1 submits that, the writ petition may

be rejected.

8. I have given careful consideration to the

submissions of the Counsel appearing for the

petitioner and the Counsel for the respondent No.1.

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With their able assistance perused the pleadings,

grounds taken therein, annexures thereto, impugned

order passed by the trial Court, other documents

placed on record and the judgments of this Court

and the Supreme Court cited supra and provisions of

Order 6 Rule 17 proviso of Code of Civil Procedure.

9. Upon careful perusal of the contents of

the application which was filed for amendment in

the written statement, it is stated that, the

defendant is Union Govt. Public Enterprises company

registered under Companies Act which is wholly and

solely controlled by the Union Ministry

communication New Delhi. That the defendant is

having certain divisions under the control of

General Manager, B.S.N.L. i.e. account division,

administration, legal, tender etc. At the time of

drafting the W.S. to the suit the necessary

documents were not available in the custody of

legal Section. The floating tender and billing

Section are separate and do the work separately.

After filing of W.S. to the said suit the Legal

Section inquired about account Section and

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administration Section regarding plaintiff's dues.

At that time the defendant knows about certain

proceeding was initiated by the Labour Commissioner

against the plaintiff and the plaintiff has not

paid minimum wages to the guard. Hence, the labour

Commissioner directed to the defendants to pay the

minimum wages to the guard which was appointed by

the plaintiff to the security of the defendants

property in Ahmednagar SSA. At that time the labour

Commissioner also sent the letter to the plaintiff

and directed plaintiff to pay differential amount

to the guard as per the Minimum Wages Act but the

plaintiff did not pay any heed and not obeyed the

order of the Labour Commissioner. That the

plaintiff has demanded the amount of claim from the

defendant as 10% of billing amount of security

deposit from each monthly bill i.e. April 2008 to

December, 2009. That the defendant has already paid

the minimum wages as per the Minimum Wages Act and

as per the direction of the Labour Commissioner,

Pune. It is necessary to bring this fact before the

Court that the plaintiff has suppressed the fact

from the Court. If the amendment of the defendant

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was allowed the plaintiff will not cause any

hardship. That the plaintiff has received the said

information recently from the concerned Department.

That the plaintiff is having knowledge about the

proceedings initiated by the Labour Commissioner

against him and in that proceeding plaintiff

intentionally did not appeared before Labour

Commissioner. That the Labour Commissioner, Pune

has time to time sent letters and intimated each

and every proceeding and orders to the plaintiff

but the plaintiff intentionally suppressed the

facts from the Court. That the defendants have

specifically contended in the W.S. that the

plaintiffs have suppressed fact about complaints to

police station and same was under enquiry. Yet the

enquiry was not finalized in so many cases which is

subjudice before the respective authority. That the

plaintiff's claim is exorbitant and excessive. The

proposed amendment sought by the defendant is

specific and to bring clear position before the

Court is necessary. The defendants have narrated

the facts relating to the amendment application

indirectly and not specifically. Therefore, it is

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necessary to amend the W.S. of the defendants for

full and final settlement of dispute in between the

plaintiff and defendants.

10. Upon careful perusal of the above

mentioned contents of the application which was

filed for amendment of the written statement, by

way of amendment the petitioner wish to bring on

record the fact that, minimum wages are paid by the

petitioner to the guards who are appointed by the

plaintiff to the security of the defendants. It

appears that, Labour Commissioner sent letter to

the plaintiff and directed the plaintiff to pay

differential amount to the guards as per Minimum

Wages Act. However, the plaintiff did not pay any

heed and not obeyed the order of the Labour

Commissioner. It appears that, it is the case of

the original defendant i.e., petitioner herein

that, the defendant has already paid minimum wages

as per Minimum Wages Act and as per directions of

the Labour Commissioner, Pune. However, the

plaintiff has suppressed this fact from the Court.

These are the relevant and important facts which

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would assist the Court in reaching to the proper

conclusion and also would set at rest the

controversy involved in the suit. If the defendants

are allowed to amend written statement, certainly

plaintiff will have opportunity to reply amended

portion in the written statement and no prejudice

would be caused to the plaintiff.

11.

The Supreme Court in the case of Usha

Balasaheb Swami and others (supra), while

considering the scope of provisions of Order 6 Rule

17 proviso, of Code of Civil Procedure in relation

to prayer for amendment in the written statement,

in paragraphs-18 to 22 held thus :

"18. 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

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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.

19. 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 bonafide one. In this

connection, the observation of the Privy Council in the case of Ma Shwe Mya v. 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."

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(Underlining is ours)

20. 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.

21. 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

[see B.K. Narayana Pillai v. Parameswaran Pillai (2000(1) SCC 712) and Baldev Singh & Ors. v. Manohar Singh (2006 (6) SCC 498)]. Even the decision relied on by the plaintiff in Modi Spinning (supra) clearly recognizes that inconsistent pleas can be taken in the pleadings. In this context, we may also refer to the decision of this Court in Basavan

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Jaggu Dhobi v. 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:-

"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."

22. As we have already noted herein earlier that in allowing the amendment of the written statement a liberal approach is a general

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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. v. 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."

12. Therefore, upon careful perusal of the

discussion in above mentioned paragraphs-18 to 22

in the case of Usha Balasaheb Swami and others

(supra), it will have be held 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

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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.

Therefore, the Supreme Court held that, Courts

should be more liberal in allowing the amendment in

written statement than that of plaint as the

question of prejudice would be far less in the

former than in the latter case.

13. The Supreme Court in the case of Abdul

Rehman and another (supra), in paragraphs-14 and 15

held thus :

"14) In Pankaja & Anr. vs. Yellapa (Dead) By Lrs. & Ors. AIR 2004 SC 4102 = (2004) 6 SCC 415, this Court held that if the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation, the same should be allowed. In the same decision, it was further held that an amendment seeking declaration of title shall not introduce a

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different relief when the necessary factual

basis had already been laid down in the plaint in regard to the title.

15) We reiterate that all amendments which are necessary for the purpose of determining the

real questions in controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the

nature of relief claimed shall not be considered as a change in the nature of suit

and the power of amendment should be exercised in the larger interests of doing full and

complete justice between the parties."

14. It follows from the authoritative pronouncement

of the Supreme Court in the case of Abdul Rehman and

another (supra), that all amendments which are

necessary for the purpose of determining real

question in controversy between the parties should

be allowed if it does not change basic nature of

the suit. The power of amendment should be

exercised in the larger interests of doing full

and complete justice between the parties.

15. As already observed, by way of proposed

amendment in the written statement, the defendant

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