Bombay High Court

Amitabh S/O Ramesh Nagmoti vs Shri Rakesh S/O Vilasbhai Patel on 28 November, 2016

Bench: Prasanna B. Varale

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         : NAGPUR BENCH : NAGPUR.




                                                                  
                           WRIT PETITION NO. 4506 OF 2015

    Amitabh S/o Ramesh Nagmoti 




                                                                 
    Aged about 44 yrs., Occ. - Business, 
    R/o. Dhumankheda Ward, 
    Brahmapuri, Dist. Chandrapur.                                                     ... Petitioner

           // VERSUS //




                                                  
    Shri Rakesh S/o Vilasbhai Patel, 
                              
    Aged about 39 yrs., Occ.-Driving, 
    R/o Bazar Chowk, Brahmapuri, 
    Dist. Chandrapur.                                                             ... Respondent
                             
    -------------------------------------------------------------------------------------------------
    Shri N. R. Bhishikar, Advocate for the petitioner
    None for the respondent 
    -------------------------------------------------------------------------------------------------
      


                                                 CORAM :  PRASANNA B. VARALE, J.

                                                  DATE    : 28-11-2016.

    ORAL JUDGMENT





                     Rule.  Rule made returnable forthwith.

2. Heard Shri Bhishikar, learned counsel for the petitioner.

3. None appears for the respondent.

4. The petitioner challenges the order passed by learned

Civil Judge Junior Division, Brahmapuri thereby rejecting the

application filed by the petitioner seeking amendment in the written

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statement and the order dated 9-3-2015 rejecting the application

seeking review of the order dated 30-12-2014. The respondent

(original plaintiff) instituted suit against the petitioner (defendant) for

eviction of the premises. It seems that the premises was let out for

commercial purpose, namely, running the printing press. The grounds

raised for seeking eviction of the premises were that the defendant

was in arrears of rent and the premises was in dilapidated condition,

as such, repairs and new construction of the premises was needed.

The petitioner by filing written statement contested the suit. On

13-11-2014, an application is filed at the instance of the petitioner -

defendant for amendment of the written statement. It is stated in the

application that the petitioner - defendant filed his written statement

on 17-10-2013 and when the defendant was preparing for contesting

the suit by leading evidence, certain relevant and important

information was revealed and, as such, the petitioner - defendant is

approaching the Court for amendment in the written statement. It is

stated that defendant intends to add paragraph no. 11(A) as the

special/additional pleadings i.e. the demand of arrears of rent is time

barred as it is raised after 10 years. It is further stated that the

premises is in good condition and the plaintiff started construction of

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second floor, as such, the submission of the plaintiff that the premises

is in dilapidated condition is untrue. The application was opposed by

filing reply. Learned Civil Judge Junior Division on the ground that

contrary pleas are raised by the defendant rejected the application and

also rejected the review application.

5. Shri Bhishikar, learned counsel for the petitioner

submitted that learned Civil Judge Junior Division erred in

appreciating the application seeking amendment in written statement.

It was submitted by Shri Bhishikar, learned counsel that the petitioner

raised additional ground firstly of the claim of arrears of rent being

time barred and this was a new ground which was not earlier raised in

the written statement. He further submitted that this being the legal

ground, the petitioner could have raised it in the application seeking

amendment in the written statement. Shri Bhishikar, learned counsel

further submitted that even the ground of property being in good

condition may be a subsequent ground raised could not have rejected

by the Court below treating the same as inconsistent and contrary

ground. Shri Bhishikar, learned counsel submitted that even though,

it was submitted in the written statement that the premises is old

structure, subsequently, at the time of filing the application, it was

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found by the petitioner - defendant that the plaintiff was in process of

construction of second floor of the said premises and, as such, the

petitioner submitted in the application that the premises was in good

condition. Shri Bhishikar then submitted that though not admitting

but assuming the petitioner - defendant raises inconsistent pleas,

there was no such prohibition for the petitioner to raise these

inconsistent pleas and the learned Court below ought not to have

rejected the application on that ground. Shri Bhishikar, learned

counsel placed heavy reliance on the judgment of the Apex Court in

the case of Usha Balashaheb Swami and ors. Vs. Kiran Appasao

Swami and ors. reported in 2007(5) Mh.L.J. 593. Shri Bhishikar,

learned counsel submitted that though the petitioner relied on the

judgment of the Apex Court, at the time of seeking review of the order

dated 30-12-2014, learned Court below on erroneous appreciation

rejected the application.

6. I have gone through the material placed on record. In

spite of the opportunities granted to the respondent, the respondent

failed to appear before this Court. On 17-10-2016, this Court granted

one more opportunity to the respondent and adjourned the petition

today. None appears for the respondent. It seems that the respondent

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is not interested in contesting the petition.

7. The application filed by the petitioner for seeking

amendment as stated above on two grounds, firstly, the time barred

claim of arrears of rent, Shri Bhishikar, learned counsel justified in

submitting that the learned Court below ought not to have rejected

the application as it was the legal ground raised by the petitioner.

Insofar as second ground, namely, inconsistencies raised by the

petitioner is concerned, though it was stated in the written statement

that the premises is old one and in the application, the petitioner

comes with a submission that the premises is in good condition on the

ground that the plaintiff is erecting the structure with construction of

second floor over the said premises, as such, the premises is in good

condition, as reliance is placed on the judgment of the Apex Court by

the learned counsel for the petitioner in support of his submissions. It

would be useful to refer to the observations of the Apex Court. The

Apex Court observed that :

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

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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 [see B.K. Narayana Pillai vs. Parameswaran Pillai, 2000(1) SCC 712 and Baldev Singh

& Ors. 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. 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, Civil Procedure Code 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."

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The Apex Court further observed that :

"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."

The Apex Court further observed that 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.

(emphasis supplied).

8. In view of the above referred facts, in my opinion, the

orders passed by the learned Civil Judge Junior Division, Brahmapuri

dated 30-12-2014 and 9-3-2015 are unsustainable. In the result, the

writ petition is allowed. The orders impugned in the petition are