Cmi Limited vs Arun Bhandari
1997 Latest Caselaw 159 Del

JUDGMENT

R.C. Lahoti, J.

(1) This is a revision filed by the defendant-petitioner feeling aggrieved by an order of the Trial Court whereby its application under Order 6 Rule 17 of the Civil Procedure Code seeking an amendment in the written statement has been directed to be rejected.

(2) It is a landlord-tenant suit. The tenancy is not governed by the provisions of the Rent Control Act. On 11.3.89, the plaintiff served a notice under Section 106 of the Transfer of Property Act terminating the tenancy of .the defendant. In the month of August, 1989 the suit for ejectment was filed. The written statement was filed in October, 1990. In August, 1996, i.e. after a lapse of about six years from the date of filing of the original written statement, the application for amendment has been moved. The plaintiff is in the witness box and has been examined in chief.

(3) By the application under Order 6 Rule 17 of the Civil Procedure Code the defendant- petitioner proposes to add several paragraphs in the written statement, the sum and substance whereof is that the plaintiff having accepted rent for the period subsequent to the date of the notice and before the filing of the suit, the notice for ejectment stands waived and therefore the plaintiff cannot seek any decree for ejectment.

(4) The opposition offered by the plaintiff-respondent No.1 has found favour with the learned trial Judge. The learned Counsel for the plaintiff-respondent has supported the impugned order placing reliance on Gauri Shankar v. M/s. Hindustan Trust (Pvt.) Ltd., which finds referred to in the impugned order also.

(5) The learned Counsel for the defendant-petitioner has forcefully argued that the impugned order is illegal and contrary to law, results in failure of justice and must therefore be set aside. The hard work which the learned Counsel for the defendant- petitioner has put in while arguing the revision petition deserves to be appreciated. He has cited a good number of decisions laying down the well settled principles. The basic and fundamentals of the law relating to amendment of pleadings have been emphasised by reading out the facts and law in extenso from the decided cases. Decisions of High Courts have been cited laying down such principles as are already well settled by the law laid down by the Supreme Court.

(6) To be fair to the learned Counsel for the defendant-petitioner I would catalogue the decisions relied on and cited by him at the Bar. They are as under : (1)Haridas Aildas Thadani & Ors. v. Godrej Rustom Kermani, ; Suraj Prakash Bhasin v. Smt. Raj Rani Bhasin & Ors., . Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, . A.K. Gupta & Sons Ltd. v. Damodar Valley Corporation, . Piragonda Hongonda Patil v. Kalgonda Shidgonda Patil 6" Ors., . Mohd. Shamim Farooqi b Am. v. Delhi Wakf Board, Air 1985 Delhi (7) Amarjeet Singh v. Municipal Corporation of Delhi, . Hari Kishan v. Prem Narain, 1985 Rlr 488 (9) Jai Narayan v. Mangat Ram, 1978 Rlr 394 (10) M/s. J.S. Tins Fabricators & Ors. v. Uco Bank, .

(7) It is not necessary to individually deal with each of the decisions cited. The principles are too well settled to be restated. All rules of procedure are intended to subserve the ends of justice. All such amendments as may be necessary for the purpose of determining the real questions in controversy between the parties shall have to be allowed. The approach of the Court has to be liberal. Amendment in written statement are viewed more liberally than those sought for in the plaint. Mere delay would not be a ground for refusing an amendment. However, there are a few riders on the wide jurisdiction of the Court. Amendments not necessary, or working injustice to the other side or which are intended to over-reach the Court or which place the opposite party in a situation which cannot be compensated by award of costs, cannot be allowed. This has been the under current throughout of the decided cases.

(8) I may refer to a few cases cited by the learned Counsel for the defendant- petitioner himself. In Jai Jai Ram ManoharLal's case (supra) the Supreme Court has held that amendment causing injury to an opponent which may not be compensated for by an order of costs would be an exception to the exercise of liberal power to amend. So is with an amendment causing or likely to cause serious injustice or irreparable loss to the other side, as held in Haridas Aildas Thadani's case (supra).

(9) The learned Counsel for the plaintiff-respondent No.1 has submitted that the defendant-petitioner has by his own conduct rendered himself unworthy of the indigence being shown to him by the Court. The learned Counsel went on to submit that the amendment sought for belatedly is a part of design to frustrate the ejectment suit, harass the plaintiff and cause gross injustice to him. In his submission the application for amendment suffers from serious lacuna. Not a word has been stated in the application why the plea now sought to be raised by amendment could not have been raised in the written statement as originally filed. Not a whisper of explanation is to be found in the application why it is delayed by about 6 years from the date of filing of the written statement. Developing his argument further, the learned Counsel for the defendant-petitioner submitted that the suit was filed in the year 1989. If only a plea of defect in notice or of waiver of notice would have been promptly raised in the written statement then the plaintiff could have been told that in view of the notice being defective or having been waived, the plaintiff would be better advised to withdraw the suit and file a fresh one after serving a notice afresh. The defendant has allowed the suit to remain pending for about 7 years by not raising the plea of waiver at the appropriate stage when the written statement was filed. The trial has proceeded on the assumption that no plea of waiver was sought to be raised by the defendant. If such a plea is allowed to be raised by way of amendment belatedly now then no amount of costs is going to compensate the plaintiff for the period of 7 years already lost in litigation. In this background the law laid down by the Supreme Court in Gauri Shankar's case (supra) assumes significance and applies on all the fours to the case at hand.

(10) In Gauri Shankar's case (supra) also a suit was filed for ejectment of the tenant after serving a notice. Plea as to invalidity of the notice was not taken in the written statement. After about 8 years the plea was sought to be raised by moving an application for amendment in the written statement. Their Lordships held : "The respondent waited for eight years before seeking an amendment to include a plea on the absence of such a notice. The Trial Court did allow the amendment but in our opinion no such amendment should have been allowed on account of gross delay and laches on the part of the respondent in raising such a plea. In such matters it must be remembered that if a technical plea of the nature sought to be raised had been raised at an earlier stage the appellant could have withdrawn the petition for eviction with liberty to file another petition after serving the requisite notice. By not raising that plea for nearly eight years a great deal of prejudice was caused to the appellant."

(11) The learned Counsel for the petitioner submitted that the plea goes to the root of the case and hence should have been allowed to be raised. He read from the cases cited by him that the trend of judicial opinion was in favour of permitting such amendments. In my opinion a distinction has to be drawn between two types cases when a plea going to root of the matter is sought to be raised belatedly. First type of cases are those which have been referred to by the learned Counsel for the petitioner. A plea goes to the root of the matter and if allowed to be raised would persuade the Court in arriving at a conclusion that the claim preferred by the plaintiff was wholly devoid of any merit and did not deserve to be entertained, much less allowed, by a Court of Law. Once the plea is allowed to be raised, the claim of the plaintiff would fall to the ground once and for all times to come. The Court permits such plea being raised even belatedly because if not allowed to be raised would result in a meritless claim having the chance of being allowed for want of requisite plea in the written statement. The other type of cases is like the present one. The plea if allowed to be raised, would have the effect of knocking down the present claim but the plaintiff would not be debarred from filing the same claim once again. The plea of waiver is also capable of being waived. In such cases, the factor of delay assumes significance. The Court would not liberally entertain a belated attempt to raise the plea more so when the delay was not explained; no explanation was forth coming why the plea was not initially raised at the thresh hold. While one of the objects of permitting an amendment is to avoid multiplicity of litigation, in such a case permitting the amendment would itself be a cause of multiplying the litigation.

(12) In my opinion the law laid down by the Supreme Court in Gauri Shanker's case (supra) clinches the issue. The belated amendment sought for by the defendant without any whisper of explanation for the delay and the original omission could not have been allowed.

(13) The learned Trial Court has in its impugned order observed at one place that even without amendment the defendant could lead evidence of the facts sought to be introduced byway of amendment. I do not agree. Waiver is a mixed question of fact and law. Unless the plea is specifically raised, no evidence in support thereof can be permitted to be adduced. The Trial Court having noticed the law laid down by the Supreme Court in Gauri Shanker's case should have simply dismissed the prayer for amendment solely on the ground that it was not accompanied by any explanation for the undue delay and if allowed, would cause irreparable injustice to the other side. No other observation was called for.

(14) For the foregoing reasons, the revision is held devoid of any merit and liable to be dismissed. It is dismissed accordingly with costs quantified at Rs. l,000.00 .