Tripura High Court
Sri Bikash Saha & Another vs Sri Utpal Baidya on 12 July, 2024
Page 1 of 6
HIGH COURT OF TRIPURA
AGARTALA
CRP No.26/2024
Sri Bikash Saha & another
......... Petitioner(s).
VERSUS
Sri Utpal Baidya
.........Respondent(s).
For Petitioner(s) : Mr. A. Sengupta, Advocate.
For Respondent(s) : Mr. R.G. Chakraborty, Advocate.
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
Order
12/07/2024
Heard Mr. A. Sengupta, learned counsel appearing for the
defendants/petitioners and Mr. R.G. Chakraborty, learned counsel appearing
for the plaintiff/respondent.
2. The suit was instituted by the plaintiff for eviction of the
defendants-tenants in respect of the schedule property described in the plaint of
Title Suit No.01 of 2023. Written statement was also filed by the defendants
contesting the case of the plaintiff vide Annexure-2. Later on, an application
under Order VI Rule 17 of the Code of Civil Procedure (CPC, for short) for
amendment of the written statement was filed to incorporate the following
proposed amendments:
" SCHEDULE OF THE AMENDMENT
(a) At page 9 of the written statement filed by the defendants, in para 17,
the following sentences be added;
"The defendants state that on 22.08.2023 and 23.08.2023 they have
sent monthly rent of the suit premise amounting to Rs.1,45,000/- to the
plaintiff, but it is the misfortune of the defendants that the plaintiff has
refused to receive the said monthly rent sent by the defendants through
money order."
(b) At page 9 in para 8 after (iii) the following sentences be added:
"iv. Money order slip dated 22.08.2023 (6 sheets).
v. Money order slip dated 23.08.2023 (2 sheets)."
3. This proposed amendment has been denied by the learned Civil
Judge (Sr. Division), Court No.1, South Tripura, Belonia vide order dated
19.03.2024 on the ground that these facts referred to in the proposed
amendment of sending monthly rent of the suit premises by the defendants to
the plaintiff took place after institution of the suit, and thus, it is not due to
illiteracy and ignorance of law that the defendants omitted to communicate the
said facts to their legal advisor or the legal advisor was unaware at the initial
level of the suit and came to know of its importance as the case proceeds. As
such, the prayer was rejected.
4. The written statement was filed on 18.03.2023. The proposed
amendments relate to sending of monthly rent on 22.08.2023 and 23.08.2023
amounting to Rs.1,45,000/- to the plaintiff which, according to the defendants,
he refused to receive. Both the money order slips of the above dates were also
sought to be incorporated. Being aggrieved, petitioners are before this Court
under Article 227 of the Constitution of India.
5. Learned counsel for the petitioners submits that these proposed
amendments are not going to materially prejudice the cause of action raised by
the plaintiff at the time of institution of the suit. The general principle that
amendment of pleadings cannot be allowed so as to alter materially or
substitute cause of action or the nature of the claim which applies to
amendments of plaints are not equally applicable in respect of amendments
relating to written statement. Therefore, addition of a new ground of defence or
substituting or altering a defence by taking inconsistent pleas in the written
statement could not be objectionable whereas adding or altering or substituting
a new cause of action in the plaint may be objectionable. It is submitted that in
the case of amendment of a written statement, the Courts have been more
liberal in allowing amendment than that of a plaint as the question of prejudice
would be far less in the former than in the latter case. He has placed reliance
upon the decision of the Apex Court in the case of Usha Balashaheb Swami &
others vrs. Kiran Appaso Swami & others reported in (2007) 5 SCC 602 and
also in the case of B.K. Narayana Pillai vrs. Parameswaran Pillai & another
reported in (2000) 1 SCC 712. He has also placed reliance upon a judgment of
the learned Single Bench of the Delhi High Court in the case of M/S Parsvnath
Developers Ltd. Vrs. Ghanshyam Das Agrawal reported in 2009 156 DLT 218
on this proposition.
6. Learned counsel for the plaintiff/respondent has opposed the
prayer. He submits that after filing of the written statement, such subsequent
events should not be allowed to be incorporated in the written statement as it
would amount to improving the case of the defendants on the basis of
subsequent events. The cause of action raised in the plaint are determinable on
the basis of the pleadings made by the plaintiff and the written statement filed
by the defendants containing their admission or denial on specific averments.
As such, this amendment has rightly been refused.
7. I have considered the submissions of learned counsel for the
parties and taken note of the material facts placed from the pleadings on record.
I have also gone through the impugned order.
8. The difference in principles as relating to amendment in respect of
plaint and written statement have been laid down by the Apex Court from time
to time and are also reiterated in the case of Usha Balashaheb Swami (supra).
Paragraphs-18 to 22 thereof are extracted hereunder:
"18. It is now well settled by various decisions of this Court as well as
those by the High Courts that the courts should be liberal in granting the
prayer for amendment of pleadings unless serious injustice or irreparable loss
is caused to the other side or on the ground that the prayer for amendment was
not a bona fide one. In this connection, the observation of the Privy Council
in Ma Shwe Mya v. Maung Mo Hnaung [(1920-21) 48 IA 214 : AIR 1922 PC
249] may be taken note of. The Privy Council observed: (IA pp. 216-17)
"All rules of court are nothing but provisions intended to secure the
proper administration of justice, and it is therefore essential that they
should be made to serve and be subordinate to that purpose, so that full
powers of amendment must be enjoyed and should always be liberally
exercised, but nonetheless no power has yet been given to enable one
distinct cause of action to be substituted for another, nor to change, by
means of amendment, the subject-matter of the suit."
19. 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.
20. 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 SCC 712] and Baldev Singh v.
Manohar Singh [(2006) 6 SCC 498] ). Even the decision relied on by the
plaintiff in Modi Spg. [(1976) 4 SCC 320] 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 [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 15-A 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 case [1995 Supp (3) SCC 179] as follows: (SCC p.
180, para 3)
"3. 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 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. That will apply only to a case of
the plaint being amended so as to introduce a new cause of action."
21. 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 L.J.
Leach & Co. Ltd. v. Jardine Skinner & Co. [AIR 1957 SC 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".
22. 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."
9. Evidently, the principles relating to amendment of written
statement are on a different footing. Defendants have by the proposed
amendment sought to incorporate certain facts relating to deposit of rent by
money orders dated 22.08.2023 and 23.08.2023 which relate to the period
when the cause of action had arisen and also subsequent to filing of the suit.
The proposed amendments thus are not subsequent events in its true colour and
nature as they relate to the period before institution of the suit and the cause of
action which had arisen in favour of the plaintiff. By the proposed amendment
the defendant has tried to create an impression that the plaintiff had been
refusing rents and thus such arrear rents have been paid through money order
on 22.08.2023 and 23.08.2023. The statements made in para 17 of the written
statement on the other hand indicate that the defendant after receipt of
summons for the first time had sent Rs.10,000/- by money order which was
'refused'. Plaintiff has set up a case of default rent for a period of last 24
months at the agreed monthly rent of Rs. 2150/- p.m. The learned trial Court
was, therefore, right in its finding that it is not correct that the defendants
omitted to communicate the said fact to their legal advisor or the legal advisor
was aware of these facts at the initial level of the suit. The defendants have by
proposing to amend the written statement tried to materially alter the case
pleaded in its written statement and improve upon it by resorting to incorporate
these amendments showing deposit of monthly rent 5(five) months after the
period of cause of action and thereafter and show that plaintiff after the filing
of the written statement had been refusing rent earlier and therefore he has sent
it though money order. It is not that these monthly rents sent through money
order on 22.08.2023 and 23.08.2023 relate to a period post filing of the written
statement which could be truly subsequent events which may have been
required to be brought on record as they could not be incorporated in the
written statement. Therefore, applying the principles for amendment of the
written statement, this Court is of the opinion that such amendments if allowed
to be added in the written statement would definitely prejudice the plaintiff
which cannot be compensation in monetary terms.
10. As such, the approach of the learned trial Court does not suffer
from any error of jurisdiction. Accordingly, this Court is not inclined to
interfere in the matter. The instant revision petition is dismissed.
Pending application(s), if any, also stands disposed of.
(APARESH KUMAR SINGH), CJ
Pulak
PULAK BANIK Date: 2024.07.15 17:29:10
