Punjab-Haryana High Court

Gurvinderjeet Kaur Gill vs Gurshan Singh Gill on 15 April, 2024

Author: Alka Sarin

Bench: Alka Sarin

                        CR No.1253 of 2024                     -1-                    2024:PHHC:050503

                         IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                        126                                           CR No.1253 of 2024
                                                                      Date of Decision : 15.04.2024


                        Gurvinderjeet Kaur Gill                                            ....Petitioner

                                                           VERSUS

                        Gurshan Singh Gill                                               ....Respondent


                        CORAM : HON'BLE MRS. JUSTICE ALKA SARIN


                        Present :    Mr. Arihant Jain, Advocate for the petitioner.

                                     Mr. Daman Preet Singh Bajwa, Advocate for the respondent.


                        ALKA SARIN, J. (Oral)

1. The present revision petition has been filed challenging the

impugned order dated 21.02.2024 whereby the application filed by the

defendant-petitioner under Order VI Rule 17 CPC for amendment of the

written statement has been rejected.

2. The brief facts relevant to the present case are that the plaintiff-

respondent has filed a suit for mandatory injunction directing the defendant-

petitioner to vacate and hand over vacant possession of portion of property

bearing No.692/2 (Old), B-XX-2789 (New) i.e. one room, one store,

bathroom, situated at Gurdev Nagar, Ludhiana. In the written statement the

defendant-petitioner took a stand that the house in dispute was a matrimonial

house of the defendant-petitioner and that she had every right to reside in the

said premises. At the stage of evidence of the defendant-petitioner the

present application for amendment of the written statement was filed

integrity of this order/judgment

CR No.1253 of 2024 -2- 2024:PHHC:050503

wherein a prayer was made for adding para 5-a in the written statement,

which reads as under :

"5-a. That under the Protection of Women from

Domestic Violence Act, 2005, the applicant was in

domestic relationship with the respondent and resided

together in shared household from the year 1994 and thus

the applicant has every right to reside in the shared

household i.e. the disputed house."

3. The said application was contested by the plaintiff-respondent

and vide the impugned order dated 21.02.2024 the application was

dismissed.

4. Learned counsel for the defendant-petitioner would contend

that the law regarding amendment qua written statement is more liberal than

that regarding amendment of the plaint. In support of his argument he has

relied upon a judgment of the Hon'ble Supreme Court in the case of Usha

Balashaheb Swami & Ors. Vs. Kiran Appaso Swami & Ors. [2007 (2)

RCR (Civil) 830].

5. Per contra learned counsel for the plaintiff-respondent has

contended that the suit in the present case was filed in the year 2020 and

now the application has been filed for amendment of the written statement

and that the case is already at the stage of evidence of the defendant-

petitioner.

6. Heard.

7. In the present case the only amendment that the defendant-

petitioner seeks is addition of para 5-a in the written statement. Hon'ble

integrity of this order/judgment

CR No.1253 of 2024 -3- 2024:PHHC:050503

Supreme Court in the case of Usha Balashaheb Swami (supra) has 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 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

integrity of this order/judgment

CR No.1253 of 2024 -4- 2024:PHHC:050503

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 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

ProcedureCode 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

integrity of this order/judgment

CR No.1253 of 2024 -5- 2024:PHHC:050503

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 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."

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

integrity of this order/judgment

CR No.1253 of 2024 -6- 2024:PHHC:050503

"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

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."