Praduman Kumar Jain vs M/S Global Exports & Anr.
2013 Latest Caselaw 4379 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Order decided on: September 24, 2013

+                         CM(M) No.1568/2010

      PRADUMAN KUMAR JAIN                      ..... Petitioner
                 Through  Mr.Sanjay Aggarwal, Adv. with
                          Mr.Vipin Verma, Adv.

                          versus

      M/S GLOBAL EXPORTS & ANR                  ..... Respondents
                   Through  Mr.Ashish Pratap Singh, Adv.
      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. By way of the present petition under Article 227 of the Constitution of India read with Sections 115 and 151 CPC, the petitioner/plaintiff has assailed order dated 16th August 2010 passed by the learned Addl. District Judge, Tis Hazari, Delhi whereby the application of the respondents (defendants in the suit) under Order VI Rule 17 read with section 151CPC (hereinafter referred to as "the said application") was allowed.

2. Brief facts for adjudication of the present petition are that the petitioner had filed a suit for recovery against the respondents wherein the said application was filed for amendment of the written statement by the respondents. The said application was moved for amendment of the written statement for the second time. The first application was filed after filing of the replication for inserting M/s Anil Enterprises as a party in its counter- claim and also to withdraw the plea of limitation, taken earlier in the written statement. The same was allowed.

3. After framing of issues, when the matter was fixed for petitioner's evidence, the respondents moved an application under Order VII Rule 11 CPC seeking rejection of the plaint on the ground of limitation which was dismissed and the civil revision filed against the dismissal order was also withdrawn.

4. After the tendering of evidence by the petitioner, when the matter was posted for cross-examination by the respondents, the said application was moved for amendment of the written statement to reintroduce the plea of limitation.

5. During the course of hearing on the application, it was stated by the respondents that the suit is barred by time which fact had been pleaded in the written statement but this fact has not come in the manner in which the respondents actually wanted to have and so they may be permitted to elaborate the same through a fresh paragraph by adding para 2(a) in the written statement.

6. The petitioner contended that the said application was submitted by the respondents only to delay the disposal of the suit and one after the other application is being moved without any basis. It was averred that the issue of limitation stood decided and had attained finality once the application in that regard was dismissed and the appeal thereof was withdrawn.

7. While deciding the said application by the impugned order, the learned trial Court observed as under:

"Admittedly, this is the second application under Order 6 Rule 17 CPC moved on behalf of the defendants. There is no answer with the defendants as to why at the very outset in the first application this plea was not taken whereas in the initial written statement the plea that the

suit of the plaintiff is time barred was very much there. In these circumstances, the defendants, if so required, should have withheld the previous opportunity to elaborate the plea instead of seeking amendment as sought under the instant application. There is no cogent explanation with the defendant on this count which gives strength to the contention of the plaintiff that the defendants want to delay the matter.

However, the other side of the coin is there. The plea that the suit being time barred was taken in the written statement at the initial stage. Therefore, it cannot be said that the defendants are trying to introduce something new, more so, the plea of limitation, being legal plea can be raised at any stage and above all section 3 of Limitation Act casts an obligation upon the court to see that the suit is within the period of Limitation, even if the defendants have not taken up the plea of the same having been time barred. The counsel for the defendant is trying to explain that similarity in the names of the bank i.e. Centurian and Union Bank has led to this mix- up for that the defendant may not be penalized and an opportunity should not be taken away from the defendant to bring the facts on record. As regards the delay, it is not the case that the plaintiff's claim alone is being delayed rather counter claim filed on behalf of the defendant is also there which also gets dragged and delayed along with the suit. Therefore, it is not the case that the defendants alone are delaying the matter, if the contention of the counsel for the plaintiff is taken as correct.

The courts always try to dispose off the matters convincingly and conclusively, so far as it is possible and are under obligation to give fair opportunity to the contesting sides to put across their respective cases, being one of the fundamental requirements. If it is shown that it is an attempt with malafide intention, then only the courts should take harsh view otherwise as far as possible the parties should be given reasonably fair opportunity to put

across their cases. The human mind has its own limitation and that is why invariably in every statute one or the other provision would be found where the provisions are there to take care of such eventualities, which occur on account of such limitation, only with a view that the cause of justice should not suffer. When the facts of instant case are tested on these parameters then it appears that the defendants should be given an opportunity to bring the amendment sought to be brought in the written statement specially when the plaintiff can be compensated, when the same is required for the proper adjudication of the matter."

8. With these observations, the learned trial court allowed the application of the respondents vide the impugned order, and aggrieved thereof, the petitioner has challenged the same in the present petition.

9. I have heard the learned counsel for the parties and I am of the considered view that the impugned order passed by the learned trial Court dated 16th August, 2010 allowing the amendment in the written statement, is liable to be set-aside on the following reasons:-

(i) Admittedly, in view of the period for making the last payment to the petitioner by the respondents which is reflected in the statement filed by the petitioner, prima-facie, the suit was within time. There is no force in the submission of the respondent that the suit is barred by time. Thus, the evidence should not be recorded, as the issue of limitation even on the basis of last payment does not survive.

(ii) Further, the respondents themselves have already withdrawn the plea of limitation in the first amended written statement. The learned trial Court did not appreciate that the respondents

have not raised or pressed the issue of limitation at the time of framing of issues. The respondents themselves earlier filed the application under Order VII, Rule 11 CPC after framing of issues. The same was also dismissed. Even, the respondents filed the civil revision against the dismissal of the said order. The same was also withdrawn by them.

(iii) It is not in dispute that after tendering the evidence of the petitioner when the matter was posted for cross-examination by the respondents, the second application was filed by the respondents for amendment of the written statement to reintroduce the plea of limitation. The said application was filed after commencement of the proceedings. The said aspects have not been dealt by the learned trial Court in its order.

(iv) It is settled law that the power to allow the amendment and disallow the same has to be used judicially on consideration of facts and circumstances of each case. Where the amendment is not necessary, the Court should not allow the same. The amendment of the pleadings should not be allowed when it appears to the Court that it is a matter of hide and seek policy adopted by a party in order to delay the proceedings. While allowing the amendment, it is the duty of the Court to give cogent reasons and it should be refused if the application is not made in good faith and there has been an inconsiderable delay or gross laches.

(v) In the present case, it is the admitted position that earlier also, the respondents have given up the plea of limitation at the time

of framing of issues. No issue in this regard was raised by the respondents. After framing of the issues, the respondents moved an application under Order VII, Rule 11 CPC for rejection of the plaint on the ground of limitation which was rejected and the said order was upheld up to the High Court. When the matter is listed for cross-examination by the respondents, again the application was moved by the respondents to reintroduce the plea of limitation.

(vi) The present case is a case of recovery. It appears to this Court that the order passed by the learned trial Court is perverse and contrary to law and facts and circumstances of the present case.

10. The present petition, under these circumstances is allowed. The impugned order dated 16th August, 2010 is set-aside.

(MANMOHAN SINGH) JUDGE SEPTEMER 24, 2013