Madras High Court
S. Maragadhathammal And Ors. vs Sivasankara Bhattar And Anr. on 18 January, 1994
Equivalent citations: (1994)2MLJ51
ORDER Abdul Hadi, J.
1. The defendants are the petitioners in this revision petition against the order dated 26.7.1993, in T.A. No. 1433 of 1992 filed by the respondents-plaintiffs, which allowed the said application for amendment of their plaint. The respondents' suit O.S. No. 35 of 1987 is for declaration of their title to the suit properties and for possession. The plaintiffs sought for three amendments including the following two (a) to include the registration number of the plaintiffs' association and (b) to include the relief of mandatory injunction for restoration of the thrashing floor and cart track. But, with reference to the lower court's order allowing these two amendments, the learned Counsel for the petitioners did not advance any serious argument. He seriously advanced argument only with reference to the under mentioned third amendment. Hence I deal with the said argument, relating to the said amendment only.
2. In the original plaint, the plea was that the 1st defendant's husband was the. Manibadar. But in the abovesaid amendment application, the allegation as found in the supporting affidavit therein, is as follows:
On the abovesaid allegation, the original admission made in the original plaint was sought to be retracted. Since the court below has allowed the abovesaid proposed amendment, the defendants have preferred this revision. But, according to the learned Counsel for the petitioner, the plaintiffs cannot be allowed to have such amendment since it seeks to retract the original admission in the original plaint.
3. The respondents are no doubt unrepresented. But, I find that the decision in Panchdeo Narain Srivastava v. Jyoti Sahay 1984 S.C.C. (Supp.) 594, is directly against the contention of the learned Counsel for the petitioners. The plaintiff therein filed an application for withdrawal of certain amount deposited by the 2nd defendant therein in the court, describing himself as uterine brother of one Ram Shankar. Later, he moved an application for amendment, of the plaint to delete the word 'Uterine' from the plaint. The trial court allowed the application. But, in revision, the High Court disallowed the amendment on the ground that the word 'Uterine" was significant and might work in favour of either side to a very great extent. Allowing the appeal and setting aside the judgment of the High Court, the Supreme Court observed as follows:
Even if the High Court was justified in holding that the deletion of the word 'Uterine' has same significance and may work in favour of either side to a very great extent yet that itself would not provide any justification for rejecting the amendment in exercise of its revisional jurisdiction. We may, in this connection, refer to Ganesh Trading Co. v. Mod Ram . Wherein this Court after a review of number of decisions speaking through Beg, C.J. observed that procedural law is intended to facilitate and not to obstruct the course of substantive justice. But the learned Counsel for the respondents contended that by the device of amendment a very important admission is being withdrawn. An admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn". However, the learned Counsel for the petitioners argues that only because the abovesaid amendment in the abovesaid Supreme Court case was an innocuous one, it was allowed. But first of all, the Supreme Court has not said so for coming to the decision it reached. That apart, the abovesaid extracted passage from the said decision clearly shows that the abovesaid proposed amendment related to important admission' and that "the deletion of the word 'uterine' has some significance and may work in favour of either side to a very great extent.
4. Nextly, the learned Counsel for the petitioners argues that the Supreme Court decided differently in Modi Spinning and Weaving Milts Co. Limited v. Ladha Ram and Co. . In the said decision, in a suit for money, the defendants filed their written statement admitting that by virtue of an agreement, the plaintiff worked as their Stockist-cum-Distributor. Three years later, the defendants filed an application in the suit to amend the written statement to advance a new plea that the plaintiff was a mercantile agent-cum-purchaser. Both the trial court and the High Court concurrently rejected the said application. In the appeal to the Supreme Court by the defendants the Supreme Court, concurred with the view of the courts below and dismissed the appeal. In that context, no doubt the Supreme Court has observed that it is true that inconsistent pleas could be made in pleading, but the effect of the substitution of the abovesaid new plea actually seeks to displace the plaintiff completely from the admissions made by the defendants in the written statement and that if such amendments were allowed, the plaintiff would be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. But the said decision will have no application to the present case. While in the present case as well as in the case of Panchdeo Narain Srivastava v. Jyoti Sahay 1984 S.C.C (Supp.) 594, it is the plaintiff who sought for amendment of the plaint, in , it is the defendants who sought for the amendment, seeking to retract the admission they made earlier. In the latter case, the Supreme Court points out that the said retraction by the defendants prejudices the plaintiff since the plaintiff therein is "denied the opportunity of extracting the admission from the defendants". In other words, the plaintiff in , came forward with certain allegations in the plaint, while canvassing the correctness of the same, the defendants have set out their allegations in reply, and had thus reacted to the plaintiffs allegations in a particular way. If in that process, the defendants have made any admission voluntarily, whatever benefit which flows from the said admission to the plaintiff, should not be allowed to be taken away-later on, by any amendment sought for by the defendants. That is why, I think a Supreme Court has observed in the context of the said case, that the plaintiff should not be denied the opportunity of extracting the admission from the defendants. On the contrary, the abovesaid prejudices cannot be said to have been caused to the defendants in the present case, where it is the plaintiff who sought for the amendment of the plaint. On the same reasoning, the other decision cited by the learned Counsel for the petitioners, viz., S.K. Masthan Sahib v. Paiavani Balarami Reddi , will have no application to the present case since in the said decision also, it is the defendant who sought for the amendment of the written statement seeking to retract the admission made by him therein. In fact, in Gobinda v. Ram Chandra A.I.R. 1974 Ori. 36, which is also a case of defendant seeking amendment of his written statement, seeking to retract an admission, , was distinguished on the ground that the admission in said Orissa case, appeared to have been made by inadvertence or erroneously in ignorance of the true legal position due to the fault of the advocate.
5. Further, it should be noted that as against the above extracted passage from the affidavit in support of I.A. No. 1433 of 1992, there was no specific denial in the counter filed therein by the petitioners. Particularly, the allegation in the supporting affidavit therein is:
The learned Counsel for the petitioners could not point out any denial to these allegations in the abovesaid counter. In the above context, it will be very unfair in refuse the proposed amendment. In this context, the following observation of the Supreme Court, in Manohar Lal v. N.B.M. Supply, Gurgaon , is significant:
Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensed for by an order of costs. However, negligent or careless may have been the first omission, and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.
6. Further, the Supreme Court also has observed in Haridas Aildos Thandani v. Codpej Rustom Kirmani , thus:
It is well-settled that the court should be extremely liberal in granting prayer of amendment of pleading unless serious injustice or irreparable loss is caused to the other side.
7. The other decision relied on by the learned Counsel for the petitioners, viz., Saroj Rani v. Sudarshan Kumar , has no application to the present facts.
8. The learned Counsel for the petitioners after referring to 0.6, Rule 17, C.P.C. also sought to make a faint argument that the proposed amendment is not necessary for the purpose of determining the real questions in controversy between the parties. But, he did not make this point clear to me at all. I am also unable to make out how the decision cited by him in this regard, viz., Gambhirmal v. Gyanchand , has application in the present case.
9. That apart, when the Court below has allowed the amendment, the revisional court, acting under Section 115, C.P.C., ought not to lightly interfere with the discretion exercised by the Court below in I this regard. This effect also, the abovesaid , observes as follows:
It is also clear that a revisional court ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstances.
10. In the result, I find no merit in this civil revision petition and hence it is dismissed. No costs.