Delhi High Court

Sumarti Devi & Ors vs Keswati & Anr on 2 August, 2011

Author: G. S. Sistani

13
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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(OS) 983/2010

%                              Judgment Delivered on: 02.08.2011

SUMARTI DEVI & ORS                               ..... Plaintiff
               Through:        Mr.C. B. Rai, Advocate

                   versus

KESWATI & ANR                                   ..... Defendant
                   Through:    Mr.R. M.Sinha, advocate for defendant no.1
                               Mr.Rajesh Gupta and Mr.Harpreet Singh,
                               Advocates for defendants No.2 & 3
       CORAM:
       HON'BLE MR. JUSTICE G.S.SISTANI

          1. Whether the Reporters of local papers may be allowed to see
             the judgment?
          2. To be referred to Reporter or not?
          3. Whether the judgment should be reported in the Digest?

G.S.SISTANI, J. (ORAL)

I.A. No.6635/2010

1. In view of the order passed on 23.09.2010, present application

stands disposed of.

I.A. No.6636/2010

2. This is an application for appointment of the Local Commissioner.

The Local Commissioner has been appointed and he has filed his

report. Accordingly the application is disposed of.

I.A. No.12272/2010

3. Dismissed as not pressed.

I.A. No.14736/2010

4. This is an application filed by defendant no.1 seeking amendment

in the written statement.

5. Counsel for the applicant submits that the necessity of filing of this

application for amendment of the written statement has arisen on

account of the fact that some developments have taken place after

filing of the written statement. He further seeks leave from this

court to make certain additions in the written statement, with a

view to elaborate the defence which has already been raised, which

are necessary for the complete and proper adjudication of the case

and which could not be incorporated in the written statement in

spite of due diligence. Counsel for the applicant also submits that

defendant no.1 also seeks leave to add one paragraph containing

various events and the dates in a chronological order, for the sake

of convenience and proper adjudication of the dispute between the

parties.

6. Counsel also wishes to make additions to paragraph 1 to the

preliminary objections, necessity of which has arisen on account of

the fact that in para 1 of the preliminary objections, the defendant

had stated that the defendant no.1 had sold the property to

Smt.Satyami vide agreement to sell dated 24.05.2010, however, by

the present amendment the defendant no.1 seeks to incorporate

that this agreement to sell stands cancelled on 12.10.2010 on a

date subsequent to the filing of the written statement. The

defendant also wishes to incorporate additional paragraphs 3 and 9

in the written statement by elaborating the defence already raised

by the applicant. It is submitted that the proposed amendment are

necessary for proper adjudication of the case.

7. Learned counsel has also submitted that the suit is at the initial

stage and issues are yet to be framed in the matter and admission

denial of the documents has not been taken place, besides, there is

no delay in moving the present application for amendment.

8. Counsel for the plaintiff, non-applicant submits that the

amendments sought to be incorporated are without any merit.

Mr.Rai also submits that the purpose of filing the present

application is to cover up the lapses and with a view to incorporate

false events which have not been taken place. It is further

submitted that the sole purpose of the applicant is to delay the

matter under the garb of elaborating the defence which has

already been taken in the written statement.

9. I have heard counsel for the parties. It will be useful to reproduce

the observations of the Supreme Court made in paragraphs 19 to

22 of Usha Balashaheb Swami & Ors. v. Kiran Appaso Swami

& Ors. 2007 V AD(S.C) 97.

14. 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.

(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 : AIR 2000(1) SCC 712) and Baldev Singh and Ors. v. 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 v. Sukhanandan 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 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."

10. Applying the settled principles of law to the facts of this case, it

may be noticed that the amendment sought to be carried out in

paragraph (1) of the preliminary objections, is to bring subsequent

events on record that the agreement to sell entered into with one

Smt.Satyami, has been cancelled. This amendment is opposed by

counsel for the plaintiff, non-applicant on the ground that the same

is without any merit. While considering an application for

amendment, it is not necessary for the court to render a decision

whether amendment is to be accepted or rejected on merits. By

the amendment sought, the defendant is not withdrawing an

admission nor is the plea totally inconsistent. As held by the Apex

Court that while considering an application for amendment, the