Uttarakhand High Court
Saroj Verma vs First Additional District Judge U S ... on 13 August, 2015
Author: Alok Singh
Bench: Alok Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 2819 of 2013 (M/S)
Saroj Verma ......Petitioner
Vs.
1st Additional District Judge,
Udham Singh Nagar & others .....Respondents
Present :
Mr. J.C. Pande, Advocate for the petitioner.
Mr. Ramji Srivastava, Advocate for the respondents.
Hon'ble Alok Singh, J. (Oral)
Present petition is filed assailing the judgment and order dated 14.02.2013, passed by the Civil Judge (S.D.), Kashipur District Udham Singh Nagar in O.S. No. 31 of 2011 as well as judgment and order dated 12.09.2013 passed by the 1st Additional District Judge, Udham Singh Nagar in Civil Revision No. 10 of 2013, whereby amendment application moved by the defendant/petitioner, herein, seeking permission to carry out the amendment in the written statement was rejected by the Trial Court and revision, arising therefrom, was rejected by the Revisional Court.
The brief facts of the present case, inter alia, are that the plaintiffs/respondents, herein, have filed O.S. No. 31 of 2013 in the Court of Civil Judge (S.D.), Kashipur against the defendant/petitioner, herein, for recovery of Rs. 4,73,828/- saying that M/S D.C. Vehicles (India) Ltd. is a manufacturer of battery operated two wheelers and defendant is authorized C & F agent of M/S D.C. Vehicles (India) Ltd; plaintiffs have placed purchase order on 08.07.2008 to purchase 24 battery operated two wheelers and have handed over a cheque of Rs. 6,18,114/- It was further stated that since, desired supply was not made by the manufacturer despite order and payment being received by the defendant, therefore, plaintiff has suffered loss;
2defendant, an C&F agent should be burdened with the liability to refund/pay Rs. 4,73,828/-
Defendant/petitioner, herein, has filed his written statement admitting that defendant/petitioner, herein, is C&F agent of the manufacture company namely M/S D.C. Vehicles (India) Ltd; no amount was ever retained by the defendant/petitioner, herein, rather same was paid to the manufacturer of the company. It was further stated that in the event of non supply of the goods by the company, the payment made by the plaintiff and received by the company, cannot be recovered from the C&F agent.
In the suit, both the parties have produced their respective evidence and have examined witnesses. When suit was pending for final arguments, defendant/petitioner, herein, has moved an application under Order 6 Rule 17 read with Section 151 C.P.C. seeking permission of the Court to carry out amendment in the written statementto the effect that plaintiff has placed order for 15 battery operated two wheelers on 08.09.2008 for which payment was directly made to the company; plaintiff has never negotiated through the defendant and made direct contact/negotiation with the manufacturer company, therefore, no recovery can be sought against the defendant.
Amendment, so sought, was turned down by the learned Trial Court and revision arising therefrom was also dismissed by the Revisional Court, therefore, defendant has approached this Court by way of present petitioner.
I have heard Mr. J.C. Pande, learned counsel appearing for the defendant/petitioner, herein, and Mr. Ramji Srivastava, learned counsel appearing for the plaintiffs/respondents, herein and have carefully perused the record.
3Facts for the present case have already narrated hereinbefore.
Hon'ble Apex Court in the case of Estralla Rubber v. Dass Estate (P) Ltd. reported in (2001) 8 SCC 97 in paragraph 8 has held as under:
"8. It is fairly settled in law that the amendment of pleadings under Order 6, Rule 17 is to be allowed if such an amendment is required for proper and effective adjudication of controversy between the parties and to avoid multiplicity of judicial proceedings, subject to certain conditions such as allowing the amendment should not result in injustice to the other side; normally a clear admission made conferring certain right on a plaintiff is not allowed to be withdrawn by way of amendment by a defendant resulting in prejudice to such a right of the plaintiff, depending on the facts and circumstances of a given case. In certain situations a time barred claim cannot be allowed to be raised by proposing an amendment to take away valuable accrued right of a party. However, mere delay in making an amendment application itself is not enough to refuse amendment, as the delay can be compensated in terms of money. Amendment is to be allowed when it does not cost serious prejudice to the opposite side....."
"that the principles applicable to the amendment of the plaint are equally applicable to the amendment of the written statement and 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. It is further stated that the defendant 4 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 serious injustice and that any admission made in favour of the plaintiff conferring right on him is not withdrawn."
Hon'ble Apex Court in the case of Baldev Singh and others Vs. Manohar Singh and another reported in (2006) 6 SCC 498 has held as under:
"15. ...That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case.
16. This being the position, we are therefore of the view that inconsistent pleas can be raised by defendants in the written statement although 5 the same may not be permissible in the case of plaint. In Modi Spg. And Wvt. 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 the defendants/appellants are not allowed to take inconsistent pleas in their defence."
Hon'ble Apex Court in the case of Usha Balashaheb Swami and others Vs. Kiran Appaso Swami and others reported in (2007) 5 SCC 602 has held as under:
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.
28. Again in Akshaya Restaurant v. P. Anjanappa 1995 Supp (2) SCC 303, this Court held that even an admission in the pleadings can be explained and inconsistent pleas can be taken 6 in amendment petition even after taking a definite stand in the written statement. However, in that decision the amendment of the written statement was rejected mainly on the ground that the respondents had entered into an agreement for development of the land for mutual benefit of the parties and thereby the trial court came to a conclusion that it was not open to the respondent to explain whether the agreement was one of sale or for mutual benefit since the agreement was sub silentio in that behalf. In that decision this Court further held that the High Court in the exercise of power under Section 115 of the Code of Civil Procedure committed no material irregularity in permitting amendment of the written statement.
This Court while considering the question whether the admission can be withdrawn or not observed as follows:
"It is settled law that even the
admission can be explained and even
inconsistent pleas could be taken in the pleadings. It is seen that in paragraph 6 of the written statement a definite stand was taken but subsequently in the application for amendment, it was sought to be modified as indicated in the petition. In that view of the matter, we find that there is no material irregularity committed by the High Court in exercising its power under Section 115 C.P.C. in permitting amendment of the written statement."
7Hon'ble Apex Court in the case of Abdul Rehman and another vs. Mohd. Ruldu and others reported in (2012) 11 SCC 341 in paragraph no. 11 has held as under:
"11. The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trail has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimize the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel v. Gattu Mahesh and Rameshkumar Agarwal v. Rajmala Exports (P) Ltd. Keeping the above principles in mid, let us consider whether the appellants have made out a case for amendment."
As per the dictum of the Hon'ble Apex Court as reproduced hereinbefore, the settled position of law emerges is that ordinarily, a plaintiff should not be allowed, by way of amendment, to take inconsistent new plea or new cause of action, however, this principle is not applicable in the case of amendment in the written statement, in view of the fact that defendant shall always be at liberty to take 8 alternate defence. Defendant cannot be permitted to withdraw the admission by way of amendment, however, defendant can be permitted to explain the admission made by him.
The proviso to Rule 17 Order 6 C.P.C. was added by way of Amendment Act 22 of 2002 to prevent application for amendment being allowed after the trail has commenced unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. If application is moved after commencement of the trial, it has to be shown that in spite of due diligence, it could not have been sought earlier, however, object of Rule is that Courts should try the merits of the case that come before them and consequently should allow all amendments that may be necessary for determining the real question in controversy between the parties.
Order 6 Rule 2 reads as under:
2. "Pleading to state material facts and not evidence-(1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.
(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.
(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words."
9As per the proviso 2 of Order 6 Rule 2 every pleading shall contain and contain only a statement in a concise from of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.
It is not in dispute that case of the defendant in original written statement is that although defendant was working as C&F agent of the manufacturer company, however, payment made by the plaintiff was received by the manufacturer company and negotiation was made by the plaintiff directly with the manufacturer company, therefore, for non-supply of two wheelers, no recovery can be made form the C&F agent, defendant in the case.
Learned Trial Court in such scenario has to find out as to whether any recovery can be directed against the C&F agent merely because manufacturer has failed to make supply having received the payment or recovery can be sought from the master i.e. manufacturer company. By way of present amendment, defendant wants to illustrate as to how payment made by the plaintiff was received by the manufacturer company which as per the mandate of Rule 2 Order 6 seems to be totally unnecessary and irrelevant. Consequently, petition fails and is hereby dismissed.
CLMA No. 13501 of 2013 also stands disposed of accordingly.
(Alok Singh, J.) Dated: 13.08.2015 Deepak