Suresh vs Mange Ram (Since Deceased) Thr ...
2023 Latest Caselaw 900 P&H

                     118
                                  IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                       CHANDIGARH

                                                            Civil Revision No.2881 of 2022 (O&M)
                                                            DATE OF DECISION : 17.01.2023



                     Suresh                                                        .....Petitioner

                                                            Versus



                     Mange (since deceased) through his LRs and Others

                                                                                      .....Respondents


                     CORAM : HON'BLE MRS. JUSTICE ALKA SARIN



                     Present :         Mr. Raghav Sharma, Advocate for the petitioner

                                             ..

ALKA SARIN, J. (Oral):

The challenge in the present revision petition is to the order

dated 25.01.2022 passed by the Civil Judge (Junior Division), Panipat

whereby application filed by the defendant-respondent under Order 6 Rule

17 of the Code of Civil Procedure, 1908 (CPC) has been allowed.

Learned counsel for the plaintiff-petitioner would contend that

the application had been filed after three witnesses of the plaintiff-

petitioner had been examined and that the application for amendment had

been filed only to fill in the lacuna in the case of the defendant-respondent.

PARKASH CHAND 2023.01.18 15:31 I attest to the accuracy and authenticity of this order/judgment.

The learned counsel would further contend that a totally new plea is now

sought to be raised by way of the amendment.

Heard.

A perusal of the impugned order reveals that the Court has

specifically observed that by way of the amendment the defendant-

respondent only wished to explain the pleadings by giving a description of

the revenue khasra numbers as well as consolidation scheme and by

submitting a site plan of the existing construction raised by both the parties

which, in the opinion of the Court, would assist the Court in arriving at a

just decision.

Further, in the case of Usha Balashaheb Swami & Ors. Vs.

Kiran Appaso Swami & Ors. [2007 (2) RCR (Civil) 830] it has been held

as under :

"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

PARKASH CHAND 2023.01.18 15:31 I attest to the accuracy and authenticity of this order/judgment.

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, 2000(1) RCR

(Rent) 10:2000(1) RCR (Civil) 511: (2000(1) SCC

712) and Baldev Singh & 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. Sukhnandan 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

PARKASH CHAND 2023.01.18 15:31 I attest to the accuracy and authenticity of this order/judgment.

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 Civil Procedure

Code 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 Supreme Court 357], this Court

observed "that the Courts are more generous in

allowing amendment of the written statement as the

PARKASH CHAND 2023.01.18 15:31 I attest to the accuracy and authenticity of this order/judgment.

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."

23. Keeping these principles in mind, namely, that in

a case of amendment of a written statement the Courts

would be more liberal in allowing than that of a plaint

as the question of prejudice would be far less in the

former than in the latter and addition of a new ground

of defence or substituting or altering a defence or

taking inconsistent pleas in the written statement can

also be allowed, we may now proceed to consider

whether the High Court was justified in rejecting the

application for amendment of the written statement."

It has further been held in para-31 as under :

"31. For the reasons aforesaid, we are unable to

sustain the judgment of the High Court rejecting the

application for amendment of written statement on the

ground that if such amendment was allowed it would

seriously prejudice the plaintiff. There is yet another

aspect of the matter. The trial court on consideration

of the written statement as well as the application for

amendment of the written statement, in its discretion

PARKASH CHAND 2023.01.18 15:31 I attest to the accuracy and authenticity of this order/judgment.

allowed the application for amendment of the written

statement. The High Court ought not to have reversed

the said order of the trial court, rejecting the

application for amendment of the written statement,

when the trial court has exercised its discretion in

allowing the amendment of written statement on

consideration of the principles of law and the material

on record."

In view of the above, I do not find any merit in the present

revision petition. Dismissed. Pending applications, if any, also stand

disposed off.

                     17.01.2023                                                            (ALKA SARIN)
                     parkash                                                                  JUDGE



                                                NOTE:

Whether speaking/non-speaking: Speaking Whether reportable: YES/NO

PARKASH CHAND 2023.01.18 15:31 I attest to the accuracy and authenticity of this order/judgment.