Shikha Vashishth vs Ranjana Taneja
2014 Latest Caselaw 6082 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Order pronounced on: November 24, 2014

+            I.A. No.613/2014 in CS(OS) No.879/2012

      SHIKHA VASHISHTH                                  ..... Plaintiff
                   Through         Ms.Jasmit Kaur, Adv. with
                                   Mr.S.K.Kalia, Adv.

                        versus

      RANJANA TANEJA                                 ..... Defendant
                  Through          Ms.Nidhi Sharma, Adv.

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By this order, I shall dispose of the abovementioned pending application filed by the defendant under Order VI Rule 17 read with Section 151 CPC for amendment of the written statement.

2. It is stated in the application that after filing the written statement in January, 2013, the defendant realized that a substantial error of facts has been unintentionally committed viz., that the suit property was purchased by the majority of funds of the defendant herself and some money was paid by her husband also. Besides, the other developments took place which are mentioned in para 1 of the application. The same read as under:-

(a) Despite the fact that Smt.Manju Sharda had purchased the suit property with the funds made available by her brother Sh.Rishi Raj Sharma, who is the husband of the defendant, with the understanding that the property would

be transferred in the name of Rishi Raj Sharma or in the name of anyone instructed by him, but she became greedy to usurp the suit property herself.

(b) After receipt of a sum of Rs.8 lacs, Smt.Manju Sharda executed a registered General Power of Attorney as well as registered Will in favour of her brother, Sh.Rishi Raj Sharma, however, on his instructions, she executed an agreement to sell and receipt in favour of the defendant qua the suit property and delivered the possession thereof to the defendant who has been enjoying the same as absolute owner with effect from 20th July, 2009.

(c) At the time of drafting of the written statement, all the original documents were delivered to the learned counsel who examined them and probably believed that in addition to General Power of Attorney and Will, the Agreement to Sell and receipt were also in favour of Sh.Rishi Raj Sharma and did not mention about this fact in the written statement.

(d) There was no dispute or difference between the defendant and her late husband Sh.Rishi Raj Sharma. But Smt.Manju Sharda after the death of said Sh.Rishi Raj Sharma again made attempts to grab the suit property on the ground that the property belonged to her brother and the defendant should restore the documents to her. On her failing to do so, she induced the plaintiff to institute the present suit.

3. Under these circumstances, it has become necessary to make the above said factual amendments in the written statement by way of adding new para 5 in the preliminary objections, the details of which are mentioned in para 2 of the application and the existing para 5 be read as para 5A. In the said para 5A also, the plea already taken as "being satisfied with the service of the defendant, Dr.Rishi Raj Sharma orally gifted the flat...." shall be amended and read as "being satisfied with the service of the defendant, Dr.Rishi Raj again orally gifted the flat......"

4. It is stated in the application that the above said amendments will not change the character of the suit, rather non-mentioning of these factual and documentary facts will adversely affect the case of the defendant and will cause her serious prejudice on merits.

5. Reply to this application was filed by the plaintiff whereby it is stated that at no point of time and even in the previously instituted suit between the parties, the defendant had stated that she is the owner of the suit property or that the documents have been executed in her favour by the erstwhile owner. In fact, throughout the claim of the defendant was that she is enjoying her right of maintenance being given to her by her husband. Now, by virtue of the amendment sought in the present application, the defendant is trying to change the nature of the defence already taken by her. Even otherwise, a perusal of the copies of the documents in question shows that those are fabricated by the defendant and the same were never executed or in existence at the time of filing of the written statement. The prayer is made for dismissal of the present application.

6. It is the admitted position that the present application for amendment of the written statement has been filed before framing of issues. I feel that the same ought to have been decided before framing of the issues, but the same was kept pending. The same is taken up by this Court. It is the settled law that while deciding the issue of amendment, the merit is not gone into and particularly, the Court should take the liberal view at the time of deciding the application for amendment of the written statement. Even otherwise, if the defendant has a weak case on merits, the amendment cannot be refused on this reason.

7. The issue raised by the plaintiff in the reply to the application for amendment has been dealt with by the Courts from time to time.

i) In the case of Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (Dead) through LRs. And Others, reported in 1995 Supp (3) Supreme Court Cases 179, it was observed by the Supreme Court that the Courts below have gone wrong in holding that it is not open to the defendant to amend his written statement under Order 6 Rule 17 CPC by taking a contrary stand than what was stated originally in the written statement. This is opposed to the settled law. It is open to a defendant to take even contrary stands or contradictory stands, thereby the cause of action is not in any manner affected.

ii) In the case of Inderjit Grover v. Indrawati, reported in 2003 VIII AD (Delhi) 267, the Single Bench of this Court has also observed that while allowing the amendment, a party cannot be refused just relief merely because of some mistake, inadvertence or even infraction of the rules of procedure. The

Court always allows amendment unless it is satisfied that there was malafide or the blunder has caused injury to the opponent which could not be compensated by costs.

iii) In the case of Baldev Singh and Others v. Manohar Singh and another, reported in (2006) 6 Supreme Court Cases 498 while referring the judgment passed in the case of Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97, it was held that even if there were some admissions in the evidence as well as in the written statement, it was still open to the parties to explain the same by way of filing an application for amendment of the written statement. Relevant paras 16 & 17 read as under:-

"16. This being the position, we are therefore of the view that inconsistent pleas can be raised by defendants in the written statement although the same may not be permissible in the case of plaint. In Modi Spg. and Wvg. Mills Co. Ltd. v. Ladha Ram & Co., (1976) 4 SCC 320, this principle has been enunciated by this Court in which it has been clearly laid down that inconsistent or alternative pleas can be made in the written statement. Accordingly, the High Court and the Trial Court had gone wrong in holding that defendants/appellants are not allowed to take inconsistent pleas in their defence.

17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears that the Suit was not on

the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted herein after, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings."

8. In view of the above said well settled law on this aspect and in the interest of justice, the application of the defendant for amendment of the written statement is allowed, as no prejudice would be caused to the plaintiff who has yet to conclude her evidence. The plaintiff has every right to challenge the case of the defendant in the replication as well as at the evidence stage. The issue raised by the defendant has to be determined as per its own merits.

9. The application is accordingly allowed, subject to cost of Rs.10,000/- to be paid by the defendant to the plaintiff within four weeks from today.

10. The application is disposed of.

CS(OS) No.879/2012

The amended written statement be filed within four weeks from today. Replication thereto, if any, be filed within four weeks thereafter.

List the matter before the Joint Registrar on 2nd February, 2015 at 2.00 p.m. the date and time already fixed for admission/denial of

the additional documents filed by the defendant along with the application for amendment. After completion of the admission/denial, the matter would be fixed by the Joint Registrar for evidence of the plaintiff. In case no fresh issues are required to be pressed by the parties.

(MANMOHAN SINGH) JUDGE NOVEMBER 24, 2014