Calcutta High Court
Nur Bakta Gayen And Ors. vs Jahur Mohammad Gayen And Anr. on 26 August, 2004
Equivalent citations: 2004(4)CHN228
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. This application under Article 227 of the Constitution of India is at the instance of defendants in a suit for declaration of title and permanent injunction and is directed against Order No. 56 dated January 28, 2004 passed by the Civil Judge, Junior Division, 1st Court, Diamond Harbour, in Title Suit No, 230 of 1995 thereby rejecting an application for amendment of written statement by the petitioners.
2. As indicated above, the aforesaid suit was filed for declaration of title and for permanent injunction. The petitioners entered appearance and filed written statement thereby denying the material allegations made in the plaint and asserting their own title. Subsequently, the petitioners have come up with the application for amendment of the written statement thereby praying for amendment of various statements made in the original written statement. It was contended that as the petitioners had no sufficient knowledge of law and had lack of intelligence, some important facts, through bona fide mistake, could not be mentioned in the original written statement.
3. The aforesaid application was opposed by the opposite party/plaintiff contending that the proposed amendment was a mala fide attempt on the part of the defendants in withdrawing their own admission made in the original written statement. It was further argued that the application having been filed at a belated stage, the same was liable to be rejected.
4. The learned Trial Judge by the order impugned herein has rejected the said application mainly on the ground that if the proposed amendment was allowed, admission made in the paragraph 12 of the written statement would be washed away and that a valuable right accrued in favour of the plaintiffs would be defeated. Delay in filing the application has also been shown as a ground for rejection.
5. Being dissatisfied, the defendants have come up with the present application.
6. Mr. Panda, the learned Advocate appearing on behalf of the petitioners has taken this Court through written statement as well as the application for amendment and has contended that by the proposed amendment the defendants have never deviated from any admission made in favour of the plaintiff. According to Mr. Panda, there was no admission in favour of the plaintiff in the original written statement. Mr. Panda further contends that for effective adjudication of the dispute involved in the suit, the proposed amendment was very much necessary and as such, the learned Trial Judge acted illegally and with material irregularity in rejecting such prayer.
7. Mr. Chatterjee, the learned Counsel appearing on behalf of the plaintiffs has opposed this application on three-fold grounds.
8. First, he has contended that the application for amendment of written statement having been filed after the coming into operation of the amendment of Code of Civil Procedure in the year 2002, the learned Trial Judge rightly rejected such application as the trial has already commenced. Mr. Chatterjee points out that this is not a case where due to subsequent events, the petitioners have come up with the application for amendment.
9. Secondly, Mr. Chatterjee submits that by the proposed amendment, admission made in the original written statement has been sought to be withdrawn and as such, the learned Trial Judge rightly rejected such application.
10. Lastly, Mr. Chatteriee contends that the application was rightly rejected on the ground of delay in filing the same.
11. Therefore, the first point that arises for consideration in this application is whether in view of the amendment of the Code of Civil Procedure with effect from 1st July, 2002, the application for amendment is liable to be dismissed.
12. In order to appreciate the aforesaid question, it will be necessary to refer to Section 16 of the Code of Civil Procedure (Amendment) Act, 2002 and those are quoted below:
"16. Repeal and savings.-(1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except insofar as such amendment or provisions are consistent with the principal Act as amended by this Act, stand repealed.
(2) Notwithstanding that the provisions of this Act have come into force or repeal under sub-Section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897,-
(a) the provisions of Section 102 of the principal Act as substituted by Section 5 of this Act, shall not apply to or affect any appeal which had been admitted before the commencement of Section 5; and every such appeal shall be disposed of as if Section 5 had not come into force;
(b) the provisions of Rules 5, 15, 17 and 18 of Order 6 of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and "by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act.
(c) the provisions of Rule 1 of Order 20 of the First Schedule as amended by Section 13 of this Act shall not apply to a case where the hearing of the case had concluded before the commencement of section 13 of this Act.
13. According to Section 16(2)(b) quoted above, the provisions of Rules 5, 15, 17 and 18 of Order 6 of the First Schedule shall not apply in respect of any "pleading" tiled before commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act.
14. There is no dispute that in the present case original pleadings, namely, plaint and written statement were filed before 1st July, 2002, the date on which the 2002 amendment had come into force. Therefore, the defendants having already filed their pleading, i.e., written statement, prior to 1st July, 2002, the amended provision of Order 6 Rule 17 shall have no application and the present application for amendment should be disposed of in accordance with the law as it stood prior to the coming into operation of the aforesaid amendment.
15. Mr. Chatterjee, in this connection, although tried to impress upon this Court that the use of the word 'pleading' in Section 16(2)(b) indicates that if any application for amendment of pleading is filed after 1st July, 2002, even if the suit was filed earlier, the amended provision of Order 6 Rule 17 would be applicable. I am, however, not at all convinced by such submission. A plain reading of the aforesaid provision makes it clear that the Legislature has used the word 'pleading' to incorporate both plaint and the written statement. The effect is that if a suit is filed prior to 1st July, 2002, a plaintiff will be entitled to file application for amendment of plaint thereafter in accordance with the old provisions because plaintiff filed his pleading i.e., plaint, prior to the date of coming into operation of the amended Act; but, if in such a suit, the defendants filed his original pleading i.e., written statement, after 1st July, 2002, in such a case, if he further applies for amendment of his written statements, his application will be considered in accordance with the amended provision.
16. However, in this case, there is no dispute that the defendants filed their original pleading prior to lst July, 2002. Therefore, the amended provision cannot have any application.
17. If we apply the principles required to be followed in accordance with the law as it stood prior to 1st July, 2002, it is well-settled that an application for amendment of written statement should be more liberally considered than one for amendment of plaint. (See Nrisingh Prosad v. Steel Products Limited, . I have gone through the original written statement as well as the proposed amendment. There is no dispute that the defendants have prayed for change of their version but they have not withdrawn any admission made in favour of the plaintiff. In the original pleading, they disputed the title of the plaintiff and there was no admission in favour of the plaintiff and in the proposed amendment also, they have disputed the self-same fact with minor deviation of the facts involving the shares of various defendants or their predecessor; but in the original written statements there was no admission of the plaintiff's title to the property.
18. Thus, the learned Trial Judge acted illegally in holding that the object of the defendants was to get rid of admission made in the original written statements. In order to deprive a defendant of the opportunity to file amendment of written statement, it must be shown that in the original written statement the defendants made some admission in favour of the plaintiffs which they sought to withdraw without just cause. If there was no admission of the case of the plaintiff, then merely because the defendants propose to introduce a different case, that cannot be a ground of rejection. The defendants are even entitled to take inconsistent defences in the written statement. See Basudevan Jaggu Dhobi v. Sukhanandan, reported in 1995 (Supp.) SCC 179;] Thus, there was no justification of rejecting the application for amendment of written statement when the proposed amendment was necessary for effective adjudication of the disputes involved in the suit.
19. Since, the application for amendment of written statement was filed at a belated stage, the Court, in my opinion, ought to have imposed costs upon the defendants for such delay.
20. I, thus, set aside the order impugned and allow the application of amendment of written statement provided the defendants pay costs of Rs.500/- to the plaintiff Such costs must be paid within fortnight from today. After such amendment, the plaintiff will be entitled to recall their witnesses for the purpose of negating the facts stated in the amended written statement of the defendants.
21. The revisional application is, thus, allowed. The order impugned is hereby set aside.