M/S. Bhawesh Commotrade Pvt. Ltd vs Rabindra Nath Paul
2022 Latest Caselaw 4494 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    C.M.P. No. 184 of 2020
     M/s. Bhawesh Commotrade Pvt. Ltd.                           .... .. ... Petitioner(s)
                                Versus
     1. Rabindra Nath Paul
     2. Binay Krishna Paul
     3. Amiya Kumar Paul
     4. Bani Barata Paul
     5. Uday Shankar Paul                                        .. ... ... Opp. Party(s)
                    ...........

CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY .........

     For the Petitioner(s) :           Mr. Manjul Prasad, Sr. Advocate
                                      Mr. Dilip Kr. Prasad, Advocate
                                      Mr. Baban Prasad, ADvocate
     For the Opp. Party(s) :           Mr. Rahul Kr. Gupta, Advocate
                                      Mr. Lukesh Kumar, Advocate
                    ......
   C.A.V. ON 03.11.2022                             PRONOUNCED ON 10 .11.2022
   Heard the parties.

1. The instant CMP has been filed for setting aside the order dated 10.02.2020 (Annexure-05) passed by learned Civil Judge (Sr. Division) No.II at Dhanbad, in Misc. Civil Application No.49 of 2020 in Original Suit No.210 of 2015 whereby and whereunder, the petition for amendment of written statement filed by the petitioner/defendant has been rejected.

2. The Original Suit No.210 of 2015 has been filed by Opp. Party(s) [Rabindra Nath Paul & Ors.] against the present petitioner for a decree for declaration that the sale-deed executed by present Opp. Party in favour of the petitioner - M/s Bhawesh Commotrade Pvt. Ltd. was null and void and also for its cancellation.

3. It is submitted that in the instant Suit, the petitioner filed the amendment petition to incorporate the following paras in the written statement after Para 20 as Para- 20(a), 20(b), 20(c) and 20(d) respectively which are as under :- "Para-20(a) That besides payment of one crore and one thousand to the plaintiffs, the defendant duly paid two cheques for which the payment receipt was granted by Tarun Kanti Ghosal dated 23.07.2012 and 27.07.2012 total amount of Rs.19 crore + 2 crore= 21 Crore on behalf of the plaintiffs in relation to sale of land by ten (10) sale deeds".

Para-20(b) "That the defendants have incurred substantial expenditure in purchasing the land in relation to cost of registration, stamp duty and total sum of more than

Rs.Twenty Four Crore now inserted towards consideration money and stamp duty etc. for registration of the land."

Para-20(c) "That the defendant further learnt recently that out of the suit property i.e. 85.01 acres as claimed by the plaintiffs but 50 to 55 acres of land is now available in fact 12 acres of land have already acquired by Asarfi Hospital who are in possession thereof and the remaining land was owned by the plaintiffs before sale but the plaintiffs without disclosing the true state of affairs sold total land i.e. 85.01 acres of land which was never owned and possessed by the plaintiffs at the time of sale deed and the defendant is entitled for refund or adjusted with the balance amount in respect of the land for which the plaintiffs was not competent to convey to the defendant." Para-20(d) "That the defendant further learnt that a title partition suit no.137/2003 in respect of 17 acres of land part of the suit land is still pending before the Court of Civil Judge (Sr. Division) -VIIth, Dhanbad and in that suit the plaintiffs have been figured as defendant no.17 to 21 and the matter is still subjudice before the competent Civil Judge (Sr. Division)-VIIth but the plaintiffs have concealed the said facts" be inserted in the plaint in the manner referred to above."

4. The petition has been rejected by the learned Court below on the ground that the averment regarding payment of Rs. 21 lakhs by two cheques was within their knowledge and could have been filed at the time of filing of the suit. The inference of prior of knowledge was based on the fact that as per the case of the defendants, this fact came to their knowledge after the Income Tax raid that took place on 19.2.2014, whereas the case had been filed on 05.06.2015. Further, the payment of consideration amount could have been verified by their own Bank statement.

5. The second reason for rejection of the amendment petition was that a fact admitted cannot be withdrawn by way of amendment. It was specific averment made by the defendant/petitioner in his written statement that the total consideration amount of Rs.10,00,1,000/- had been paid. The belated plea which is sought to be incorporated by this amendment that Rs.21 Crore to be paid, amounts to withdrawal of the earlier admission regarding payment of Rs. One Crore One thousand, made in the written statement.

6. With regard to insertion of Paras 20(c) and 20(d), the learned court below rejected the petition since the defendant failed to substantiate the pleadings by way of any document.

7. The rejection of the amendment petition has been assailed in the instant Civil Misc. Petition on the ground that under Order VI Rule 17 CPC, the amendment petition is maintainable at any stage provided that it does not change the nature of the suit. These amendments are necessary for the purpose of determination of the real question in controversy between the parties. It was specific case of the defendant that the total consideration amount had been paid and the present pleadings are only clarificatory in nature and will, therefore, not amount to withdrawal of any admission. It is also submitted that there is a difference between amendment of the written statement and that of the plaint. In case of former, inconsistent pleadings are permitted.

8. Learned counsel appearing on behalf of the Opp. Parties has opposed the petition and submitted that the learned Court below has rightly held that the instant amendment petition will amount to withdrawal of admission of the fact pleaded in the main written statement. Further, the specific mandate of the statute is that the said amendment should be brought without any unnecessary delay and before the framing of issues and the present petition is being filed after lapse of six years and when the case is posted at the stage of defendant evidence. In this view of matter, the amendment of written statement will change the nature and character of the suit.

9. The broad principles which guide the exercise of discretion in allowing amendments that are the multiplicity of proceedings should be avoided, that amendment which do not alter the character of an action should be readily granted, while care should be taken to see that injustice and prejudice of and irremediable character are not inflicted upon the opposite party under pretence of amendment, that one distinct cause of action should not be substituted for another and that the subject matter of the suit should not be changed by amendment. Amendments should not be rejected on technical grounds. The proposed amendment even if belated, can be allowed if it can be made without injustice to the other side and can be compensated in terms of cost. The principle has been succinctly laid down in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, 1957 SCR 595 Hon'ble the Apex Court reiterated the principles enunciated by Batchelor, J. in his judgment in the case

viz. Kisandas Rupchand case [(1920) LR 47 IA 255]. All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Their Lordships added further, that doctrine, is that amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?

10. Coming to the present case, suit has been filed by the plaintiff for the cancellation of sale deeds executed by the constituted power of attorney holder in favour of the Defendant. Mere delay cannot be a ground to refuse the petition of the defendant/petitioner's unless the proposed amendments are of such a nature which may cause injustice to the other side.

11.Further, the Court is not to see the merit of the said amendment, which can be seen only after such amendment is allowed and evidence is being taken.

12. It has been held in B.K. Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712 that the principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The courts are more generous in allowing the amendment of the written statement, as the question of prejudice is less likely to operate in that event. The defendant has a 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 injustice and that any admission made in favour of the plaintiff is not withdrawn.

13.The petitioner has pleaded in para 19 of the written statement that they had paid Rs.1 and Rs.1000 as consideration money to the plaintiffs through their constituted attorney holder. The proposed amendment 20(a) seeks to add that besides payment of the above amount the defendant also paid by two cheques

Rs. 21 crores. The veracity of this assertion can be tested only after evidence has been led, but incorporation of it, will not amount to withdrawal of any admission, nor will it cause any prejudice to the defence. Similarly, the averments made in the proposed amendment Para 20(b) are clarificatory in nature and in line with the plea taken in para 19 and 20 of the written statement. Further, the proposed amendments in para 20(c) and (d) has been refused by the learned court below on the ground that it had not been substantiated by any of the document. This cannot be a ground for rejection of these amendments.

14. Under the circumstance this court is of the view that proposed amendment is on fact and in substance seek to elaborate facts originally pleaded in written statement; secondly, it is in nature of amplification of defense already taken; thirdly, it does not introduce any new defense compared to what has originally been pleaded in written statement; fourthly, if allowed, would neither result in changing defense already taken nor will result in withdrawing any kind of admission, if made in written statement; fifthly, there is no prejudice to plaintiffs if such amendment is allowed.

Under the circumstance, the impugned order is set aside and the civil miscellaneous petition is allowed.

(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated 10th November, 2022 AFR/Sandeep