Calcutta High Court
Md. Sajid Khan & Ors vs M/S. Ashutosh Roy Prafulla Kumar Roy & ... on 27 August, 2019
Equivalent citations: AIRONLINE 2019 CAL 528, 2020 AIR CC 86 (CAL), (2019) 2 RENTLR 168, (2019) 4 ICC 11
Author: Ravi Krishan Kapur
Bench: Soumen Sen, Ravi Krishan Kapur
1
IN THE HIGH COURT AT CALCUTTA
Original Civil Jurisdiction
ORIGINAL SIDE
BEFORE:
The Hon'ble Justice Soumen Sen
and
The Hon'ble Justice Ravi Krishan Kapur
A.P.O.T No. 45 of 2019
G.A. No.2115 of 2018
With
C.S. No. 348 of 2013
Md. Sajid Khan & Ors.
Vs.
M/s. Ashutosh Roy Prafulla Kumar Roy & Ors.
For the Appellant : Mr. Jishnu Chowdhury, Adv.
Mr. Soumabho Ghose, Adv.
Mr. Ratul Das, Adv.
Mr. Tirthankar Nandi, Adv.
Mr. Asim Kumar Mukherjee, Adv.
For the Respondent : Mr. Moloy Kumar Ghosh, Sr. Adv.
Mr. Soumen Datta, Adv.
Mr. Avishake Bhar, Adv.
Mr. Satyajit Chatterjee, Adv.
For the Respondent No. 4 : Mr. A.K. Gupta
Hearing concluded on : 13.08.2019
Judgment on : 27.08.2019
Soumen Sen J.:- The order refusing amendment of written statement
after 26 questions had been put to the witness of the plaintiffs is the subject
matter of challenge in this appeal.
The short question that arises in this appeal is whether in view of the
newly inserted proviso to the amended provision of Order VI Rule 17 of the
Code of Civil Procedure, the Court has jurisdiction to allow amendment of
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pleadings after the commencement of trial; and if at all the court has to
exercise any such discretion, whether the appellant was able to make out a
case that in spite of due diligence, the appellant was unable to raise the
matter forming the subject matter of amendment before "commencement of
trial".
The fact that the appellants had applied for amendment of written
statement after the witness on behalf of the plaintiffs has been partly
examined is not in dispute.
Before we advert to the submissions made on behalf of the parties
with regard to the applicability of the newly added proviso to Order 17, it is
necessary for us to consider the explanation offered for delay in applying for
amendment and to examine how far the plaintiffs would be prejudiced at the
trial if such amendment is allowed at this stage, keeping in mind that the
purpose of amendment is to facilitate the court to determine the real
question in controversy between the parties.
On or about 2013, the plaintiffs filed a suit against the appellants
praying inter alia, for a decree for eviction and mesne profits.
The case of the plaintiffs, in short, is that the plaintiff no. 1 is a
partnership firm which has been a tenant with respect to two adjacent
connected godowns being nos. 7D and 7E at 10, Portuguese Church Street,
Kolkata - 700 001, under Imambara Trust Estate of Late Aga Karabarai
Mohammad (hereinafter referred to as "the said godowns"). The plaint states
that from 1944 to 1992-1993, the plaintiff no. 1 has been carrying on
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business and using the said two godowns for its business purposes. On
27th August 2004, it appointed the defendant for looking after the said
godowns. A caretaker agreement was entered into between them and a
general power of attorney was also signed. On 20th December 2011, the
plaintiff nos. 2,3,4,9 & 10, the partners of the partnership firm, cancelled
the said caretaker agreement and the power of attorney. It is the contention
in the plaint that in spite of the cancellation of the caretaker agreement and
the power of attorney, the defendants have not vacated the said godowns. It
is contended that since 21st December 2011, the defendants have been in
wrongful occupation of the said godowns. Accordingly, the plaintiffs are
claiming a decree of eviction against the defendant along with mesne profits.
The appellant/defendant has filed a written statement on 23rd June,
2014. The essential defences disclosed by the appellant in its written
statement are that the suit is not maintainable for lack of pecuniary
jurisdiction and that the plaintiffs do not have any right to evict the
defendants from the suit premises as they have surrendered the tenancy
upon accepting consideration for the same and intimating the defendants
that the tenancy would be transferred in their names. The crux of the
defence is that the plaintiffs have no right over the property in question and
therefore could not bring an action for evicting the defendant. Paragraph 5
of the written statement states that the eviction could not be carried out
then the plaintiffs have transferred the property, for consideration, to the
appellant/defendant. Paragraph 6, which is broken up into numerous sub-
paragraphs, lists out the details of how this transfer has allegedly taken
4
place. The amendments sought to be made in the present application adds
certain sub-paragraphs to paragraph 6 and also seeks to newly insert
paragraph 10A to the written statement. These paragraphs are therefore of
crucial importance, and discussed in the later part in this judgment.
Subsequently the parties completed discovery and inspection of
documents and prepared the judges brief of documents. On the basis of the
pleadings and the documents disclosed, issues were framed on 15th
September, 2017.
Thereafter on 4th July, 2018 the witness on behalf of the plaintiff was
asked 26 questions in his examination-in-chief. The examination-in-chief of
the said witness was not completed at that date and a future date was fixed
for further examination of the said witness. At this stage, on 31st July 2018,
the appellant filed an application for amendment of the written statement.
In the application for amendment, the appellant claimed that the
proposed amendments are necessary to correct typographical errors, for
amplification of the defence already made and for the purpose of
enhancement and clarification of the statement made in the original written
statement. Apart from minor amendments suggested, the substantial
amendments are in paragraph 6 and introduction of a new paragraph 10A.
The original paragraph 6 of the written statement, along with the proposed
amendments, duly underlined, are stated below -
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"6. That before dealing with the various paragraphs of the
written statement, the defendants put forward certain facts of
the case as under:
(a) From the record it will transpire that the defendants are
engaged in business and various commercial activities for a long
time in the Portuguese Church Street area and currently in
occupation of two godowns no. 7B and 7C in the ground floor of
10, Portuguese Church Street, Kolkata - 700 001 as well as two
rooms in the first floor of the said building in the capacity of a
sub-tenant. The defendants are also in possession and
occupation of Godown No. 7D and 7E in the said premises the
status of such occupation being the subject matter of the
present suit/building as sub-tenant. The defendants are in
occupation of the said two godowns in question relating to the
above suit i.e. Godown No. 7D and 7E since 2009 under the
circumstances mentioned hereinafter.
(b) That it is matter of record that the defendants are engaged in
the business of trading and assembling of toys and, as such,
require godowns for storage of the said toys. The defendants
were approached by one Kamalesh Singh, son of late Bishnu
Singh of 170, M G Road, Kolkata-700 007, who introduced
himself as the caretaker of the plaintiff No. 1 i.e. the firm M/s
Ashutosh Roy and Prafullya Kumar Roy who were in occupation
of two godowns as tenant in the same premises and informed
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the defendants that the plaintiffs being a registered partnership
firm under the name and style of M/s. Ashutosh Roy Prafullya
Kumar Roy carrying on business at 89. Jamunalal Bajaj Street,
Kolkata-700 007 represented by its partners i.e. plaintiff Nos.2
to 9 are facing severe cash crunch and they want to transfer the
godowns to suitable party against monetary consideration and
want to surrender the tenancy and arrange to transfer the
tenancy to the new occupant/incoming party.
(c) That the defendants agreed to the offer of the said Kamalesh
Singh, the caretaker-cum-durwan of premises No. 170, M G
Road, Kolkata-700 007 and the caretaker, informed the
defendants that he will introduce the defendants to the partners
of the partnership firm who deal with the daily affairs of the
company so that the transfer can take place in accordance with
law.
(d) That the said Kamalesh Singh introduced the defendant No.
1 and 3 to one Sujay Mukherjee and one Som Shankar
Mukherjee. Said Sujay Mukherjee and Som Shankar Mukherjee
i.e. the plaintiff No.9 and 10 are the partners of the partnership
firm i.e. M/s Ashutosh Roy Prafullya Kumar Roy. Said Sri Sujoy
Mukherjee and SomSankar Mukherjee came to the office of the
defendant No.3 and introduced themselves as partners of the
firm and gave a brief facts to the defendants that there are legal
disputes in their partnership firm and at present three joint
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Receivers have been appointed by the Hon'ble High Court to look
after the affairs of the partnership firm, and the partners and
the joint receivers have agreed to raise fund, by selling their
property / transfer of tenancy to the highest bidder on "as is
where is basis". Said SomSankar Mukherjee and Sujay
Mukherjee assured that they will get the tenancy transferred in
the name of the defendants through Court appointed receivers
and get the tenancy regularised from the landlord i.e. M/s.
Imambara and Trust Estate of Karbala Mohammad. The
partners i.e. the plaintiff Nos.9 and 10 also assured the
defendants that for smooth running of the business of the
defendants from the said two godowns they would execute a
general power of attorney and a caretaker agreement on back
date and also agreed to issue a letter to the landlord. A copy of
the High Court's Order dated 31.01.2008 was also produced by
the said partners from which it appeared that the Joint
Receivers who are appointed have power to look after the
partnership property and increase rent and other necessary
things, business and assured the defendants that their tenancy
would be legalised.
(e) That ultimately it was agreed by the plaintiff No.9 and 10
that against payment of money as agreed by them the plaintiffs
would execute a general power of attorney and a caretaker
agreement in favour of the defendants who would take
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possession of the said two godown upon execution of the said
two documents and they will use the godowns for their business
and will carry on business from the said two godowns.
Ultimately payment was made by the defendants to the plaintiffs
and upon acceptance of payment, two documents i.e. one
General Power of Attorney and one caretaker agreement was
executed by which power was granted, to the defendants to
deposit rent with the office of the rent controller in favour of the
landlord on account of the plaintiffs.
(ee) The defendants were induced to sign the said document
which is intitulated as Care Take Agreement on the basis of the
representations made by the plaintiff No. 9 and 10 claiming the
managing partners and authorized by all other partners of the
plaintiff firm that-
(a) The plaintiff firm would surrender tenancy to wakf
estate in order to facilitate the grant of tenancy directly by
the wakf estate in favour of the defendants.
(b) In order to keep the tenancy under the wakf estate
alive, the defendants will pay the amount of monthly rent
by depositing the same month by month with the Rent
Controller on behalf of and in the name of the plaintiff
with the Rent Controller as was being done before by the
plaintiffs.
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(c) Upon obtaining direct tenancy under the wakf estate,
said Agreement dated August 27, 2004 and the Power of
Attorney would stand cancelled.
In reliance upon the aforesaid representations and being
induced thereby, the defendants signed the said Care Take
Agreement and thereafter incurred substantial expenses and
detriment and by relying upon the said representations of the
plaintiffs and altered their position and to the knowledge of the
plaintiffs. In the premises, the plaintiffs are barred by the
principle of promissory estoppel from denying and disputing and
residing from the aforesaid representations made, or acting in
any manner inconsistent therewith.
(eee) The defendant continued to deposit rent in the name of the
plaintiffs firm with the Rent Controller in favour of the wakf
estate as has been done before so that the tenancy will be kept
alive until the direct tenancy was obtained from the Trust estate
by the defendants. The defendants have also incurred
substantial expenses for maintaining the possession of the
godown intact and have incurred general expenses for
maintenance of the godowns including payment of electricity
bills raised in respect of the said godowns by the CESC Limited.
(f) That thereafter in compliance with the aforesaid
representation a surrender letter was handed over to the
defendants for submission to Trust Estate of Karbala
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Mohammad by the partnership firm duly signed by five partners
out of nine partners which includes Sri Prabir Kumar Roy Smt.
Ila Chatterjee, Smt. JhumpaChakarborty, Sri Sujay Mukherjee
and Sri Sunanda Mukherjee. Consequently, August, 2008 the
defendants were occupying the said two godowns in question,
the subject matter of the suit. Subsequently after the meeting of
partners with the Joint Reveivers on 25.8.2010, another
surrender letter signed by eight partners were issued to said
Trust Estate. The defendants are carrying on business from the
said two godowns, i.e. GodownNo.7D and 7R. The aforesaid
transactions were started and completed by the defendants
through their cousin and authorized person, namely Md.
Hiyatullah Khan.
(g) That soon thereafter upon accepting payment by the plaintiffs
from the defendants on account of the transfer of the said two
godowns being Godown No. 7D and 7E in the year 2009, one
surrender letter written by the plaintiffs addressing the landlord
informing them their intention to surrender their tenancy of two
godowns situated in the ground floor of premises No. 7D & 7E
measuring 900 Sq. Ft and 800 Sq. Ft. Approximately on the
ground floor of the said premises. The said surrender letter was
handed over to the defendants by the plaintiff duly signed by five
partners with an intention to surrender the tenancy and get the
same transferred in the name of the defendants and also
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assured that they shall arrange a similar surrender letter by the
rest of the Partners of the firm.
(h) That it so happened that the defendants came into
possession of the said two godown in the year 2009 upon
making payment to the plaintiffs and took over possession of the
said two godowns and started using the same and have been
depositing rent in the office of the Rent Controller on account of
the plaintiffs in favour of the landlord. The plaintiffs informed
the defendants that they would arrange to get the said tenancy
transferred in the names of the defendants.
(i) That the said plaintiff No. 9 and plaintiff No.10, informed the
defendants sometimes in July, 2010 that they needed a letter to
be addressed to the Joint Receivers from the defendants stating
that the defendants have taken possession of the godown and
the possession of the defendants should be regularised.
Accordingly, a letter dated 17.8.2010 was issued by the
defendants addressed to the Joint Receiver which was discussed
in the joint receiver's meeting on 25.08.2010 and all the
partners of the firm excluding one Sri Angshuman Roy (since
deceased) signed the surrender letter issued to the defendants
addressing the landlord so that the tenancy could be transferred
in the name of the defendants, the defendants would go on
depositing rent on their behalf before the rent controller on
account of the landlord.
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(j) That the defendants enquired from the plaintiff Nos. 9 and 10
regarding Sri Angshuman Roy whose signature was missing in
the surrender letter and the defendants were informed that
Ansghuman Roy would sign at a later stage. Ultimately, Sri
Angshuman Roy took out an application being G. A. No. 3142 of
2010 with A.P. No.393 of 2007 in the Hon'ble High Court for
removal of the Joint Receivers challenging the action of the Joint
Receivers. In the said application and order was passed by the
Hon'ble Justice I.P. Mukherji. The matter was heard by Hon'ble
Justice I.P. Mukherji on 16th March, 2011, inter alia, directing
that the Joint Receivers have the right to deal with the property
in terms of sell, surrender/lease. That ultimately the said
application filed by Angshuman Roy was heard and disposed of
by Hon'ble Justice Patherya by an order dated July 29, 2011,
inter alia, holding that the joint Receivers have acted in terms of
their power and there is no illegality on their part. It is clear,
crystalline, pellucid and translucent that the case as made out
by the plaintiff is not genuine and as such liable to be rejected.
(k) That the plaintiff No.9 and 10 who are dealing in all the
matters of the partnership firm are greedy persons and their
avarcicce led them to approach defendant no.3 for some
personal loan which they did not return, resulting in a litigation
which is pending.
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(l) Sometimes in the year 2011, the partners of the plaintiff no.
1 i.e. plaintiff no.9 & 10 got in touch with one Janab
Sahahnawaz Khan of 3A, Amatala Lane, who was the business
rival of the defendants and at the instance of the said
Sahahnawaz Khan who convinced the plaintiff No.9 and 10 to
appropriate and adjust the money paid by the defendants and
revoke the general power of attorney and the caretaker
agreement executed and on behalf of the plaintiffs in favour of
the defendants. That the defendants sometime in May, 2012
received a letter signed by some of the partners of the firm and
some of the other partners who did not sign in the caretaker's
agreement and general power of attorney, a letter dated 20th
December, 2011 informing the defendants that they have
cancelled the said caretaker agreement and the general power of
attorney and they are no longer required to look after the said
tenancy any more. That in the said letter there was no reference
whatsoever asking the defendants to vacate the said two
godowns. That against the said action, a civil suit being Title
Suit No. 1263 of 2012 was filed in the City Civil Court at
Calcutta against said Sujoy Mukherjee and an application for
injunction was also filed. The said suit was instituted against
the plaintiff No. 10, the partner of the partnership firm who took
the initiative for creation of a sub-tenancy and for regularising
the tenancy in the name for the defendants. A copy of both the
agreements viz. the General Power of Attorney and the caretaker
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agreement were handed over to the defendants wherefrom it
appears to the defendants that the documents were executed in
the year 2004 and although the defendants were in possession
of the godown since 2009 having received the same through the
representative of the partnership firm. That it was informed by
the plaintiff No.9 and 10 that the documents were executed on a
back date in order to enable the defendants to get their name
recorded in the books of the landlord as tenants.
(m) That ultimately the plaintiffs misappropriated the money
paid by the defendants to them, amounting to Rs. 61,00,000/-
and tried to put the defendants in serious impediment by
issuing the letter dated December 20, 2011 to the effect that the
General Power of Attorney and Caretaker Agreement stands
cancelled. Therefore the suit was instituted without making the
landlord a party."
The newly inserted paragraph 10A in the written statement reads:
"10A. Without prejudice to the aforesaid and fully relying
on the facts stated hereinabove, the defendants state that in any
event the plaintiffs have waived the purported termination made
by the alleged letter dated 20th December, 2011 despatched on
7th May, 2012 inasmuch as the plaintiffs have thereafter
knowingly and willingly allowed the defendants to act in terms of
the said agreement to deposit rent with the Rent Controller on
their behalf and in their name of the said Wakf estate and
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further to remain in possession of the two godowns and to
maintain the same to do the following:
(a) By continuation of payment of monthly rent by way of deposit
with the Rent Controller on behalf of the plaintiffs and in
favour of the wakf estate in discharge of their liability.
(b) By inducing the defendants to incur expenses for
maintenance and protection of the said godowns by engaging
employee at a monthly salary of Rs.8,000/- and allocating
defendants employees also for the said purpose, payment of
electricity charges for the godowns as per the bills raised by
CESC Limited.
(c) Painting of the interior of the godowns at a consolidated
expenses not less than Rs.50,000/- and the expenses
therefore were done to the knowledge of the plaintiffs, without
any objection.
In the premises, the purported termination by the letter dated
20th December, 2011 has been waived and the plaintiffs have
no right or subsisting ground for filing a suit for eviction on
the basis of the said purported letter of termination.
Since the plaintiffs are not entitled to obtain a decree for
mesne profit as made in the suit is not maintainable and
misconceived."
16
In the application for amendment, the appellants have contended that
during pendency of the suit and immediately before the examination-in-chief
of the plaintiff's first witness, the appellants discovered an order dated 21st
August, 2012 in A.P. No. 581 of 2012 and on making further enquiries, the
appellants came across the petition filed in the said proceeding, which
reveals that that the plaintiffs are not the owners of the said godowns.
Mr. Jishnu Chowdhury, the learned Counsel appearing on behalf of
the appellants, submits that the aforesaid proceeding was between the
partners of the said partnership firm and in the application for discharge of
the joint receivers appointed in the said proceedings, the receivers filed
report in terms of the order dated 16th March, 2011 passed by the Hon'ble
Justice I.P. Mukerjee. It is stated that there are several other documents
now in possession of the appellants which would substantiate the claim of
the defendants that the plaintiffs are not the owners of the property in
question. The learned counsel submits that the aforesaid documents would
have the effect of making it amply clear that the plaintiffs have surrendered
and/or relinquished their rights over the property in question. Although the
appellants in the written statement has contended that the plaintiffs have
surrendered and/or relinquished the right over the property in question,
bringing such facts at this stage would be essential so that the plaintiffs are
not taken by surprise at the trial and it may not be contended during the
trial that the defendants did not make out such a case of surrender and/or
relinquishment of right in favour of the appellant.
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Mr. Chowdhury submits that the reason for filing an application for
amendment of the written statement was discovery of a copy of the
arbitration petition in A.P. No. 581 of 2012 affirmed on 23rd July, 2012 and
reported of the joint receivers in terms of the order on 16th March, 2012. Mr.
Chowdhury submits that the said two documents would completely destroy
the plaintiff's case and was the sheet anchor of the defendant's defence in
the suit.
Mr. Chowdhury has further submitted that in the application before
learned Single Judge, the reason for delay in filing an application for
amendment has not been properly explained. Mr. Chowdhury has pointed
our attention to paragraph 21, 22, 23, of the stay petition and submits that
these facts constitute the reason as to why in spite of due diligence, the
appellant were unable to file the application for amendment of written
statement earlier. The said three paragraphs are 21, 22, 23 reads -
"21. Certified copies of relevant records was obtained on 4th
December 2017 and sought to be handed over to the Advocate on
Record Mr. Asim Kumar Mukherjee on 21st December 2017, when
it was found that Mr. Mukherjee had suffered a cardiac arrest.
The documents were obtained upon filing medical certificate of Mr.
Mukherjee before the Hon'ble High Court and this is recorded in
the order dated 5th May 2018. Copies of the medical certificates
produced before this Hon'ble Court are annexed hereto and
marked as Annexure "I".
22. Mr. Mukherjee, Advocate, recovered from his ailment
and resumed work at his office in the month of May 2018 during
the summer vacation. On reopening, on 5th June 2018, Mr.
Mukherjee arranged for conference with counsel when certified
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copies were perused and it was advised that the written
statement was required to be amended.
23. The process of drafting the proposed amendment had
started and thereafter, the proposed amendment application was
filed on July 2018, when the evidence of the plaintiff started it
was submitted that application to be filed in July 2018. Certified
copies of these documents were handed over to the plaintiff as
recorded in the order of 8th August 2018."
Mr. Chowdhury further submits that the proposed amendments are
necessary for a proper and fair adjudication of a dispute between the
parties. It is submitted that the defendants were not a party to any of the
arbitration proceedings and cannot be said to have acted without due
diligence in not bringing the said facts or documents on record. Mr.
Chowdhury submits that the courts have been liberal in allowing
amendment of written statement unlike amendment of plaints, even after
commencement of trial, in spite of inclusion of the said proviso by the
Amendment Act of 2002, in the event the court feels that such amendment
is necessary for a fair trial and for proper and fair adjudication of all the
disputes between the parties. Mr. Chowdhury submits that the learned Trial
Judge has completely misdirected its mind in not appreciating that there
was no lack of due diligence and moreover has not discussed at all as to
whether such amendment would be necessary for fair and proper
adjudication of the dispute. Mr. Chowdhury would contend that the
consideration for proper and fair adjudication of all disputes in a suit is the
paramount consideration otherwise it might lead to multiplicity of
proceeding and failure to allow amendment might result in manifest
19
injustice to a party. Mr. Chowdhury in this regard has relied upon Usha
Devi v. RijwanAhamd and Ors. reported at (2008) 3 SCC 717, State of
Bihar and Ors. v. Modern Tent House and Anr. reported at (2017) 8 SCC
567, Raj Kumar Bhatia v. SubhashChander Bhatia reported at (2018) 2
SCC 87, Vidyabai and Ors. v. Padmalatha and Anr. reported at (2009) 2
SCC 409. Mr. Chowdhuri has fairly conceded that in the instant case, trial
has commenced. The learned counsel has relied upon three decisions,
namely Sree Sree Iswar Radha Behari Jew and Sree Sree Iswar
Salgram Jew v. Malati P. Soni reported at AIR 2019 Cal 131, Sayed Ali
Mullick v. Ramjan Ali reported at (2012) 3 CHN 317 and Mohinder
Kumar Mehra v. Roop Rani Mehra and Ors. reported at (2018) 2 SCC
132, to show that the trial of suit commences after issues are framed and
case is fixed for hearing and the party having right to begin is to produce
evidence.
Mr. Moloy Kumar Ghosh, learned senior counsel appearing on behalf
of the plaintiffs/respondents, has submitted that there was no necessity on
the part of the defendants/appellants to amend the written statement as the
defendants have already delivered its defence. In the written statement, the
defendants have contended that the plaintiffs have surrendered and/or
relinquished the right, title and interest in the property in favour of the
defendant and it is for them to prove and establish such a claim. The
appellants could have, at the trial, produced such documents during their
examination and for that purpose no amendment is necessary. It is
submitted that the defendants in the written statement, in paragraph 6 (j),
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has referred to the arbitration proceedings and it is preposterous to suggest
at this stage that the defendants were not aware of the orders, reports and
the minutes of the proceedings before the Joint Receivers. Mr. Ghosh has
submitted that the proposed amendment by insertion of new paragraph,
namely paragraph 10A in the written statement, could have been pleaded in
the original written statement. The said amendment is not based on any
alleged subsequent discovery of documents or events. The learned Senior
Counsel has submitted that the legislature has consciously introduced the
said proviso so that a litigant cannot unnecessarily and unduly prolong the
trial by making frivolous application for amendment. The said proviso is
held to be mandatory and unless the appellants have failed to establish that
there is due diligence on their part, the application for amendment could not
be allowed.
Mr. Ghosh submits that the learned Single Judge was perfectly
justified in rejecting the application for amendment of the written statement
after the trial has commenced. Mr. Ghosh supports the impugned judgment.
In the background of the aforesaid facts and the submissions made on
behalf of the parties, let us now examine the legality and correctness of the
impugned order.
Order VI Rule 17 of the Code of Civil Procedure was earlier omitted by
the Code of Civil Procedure (Amendment) Act 1999. However, before the
enforcement of the Code of Civil Procedure Amendment Act 1999, the
original rule was substituted and restored with an original proviso. The
proviso limits the power to allow amendment after the commencement of
21
trial but grants discretion to the court to allow amendment if it feels that the
party could not have raised the matter before the commencement of trial in
spite of due diligence. The reason for retention of the original rule and
introduction of a proviso by the Code of Civil Procedure Amendment Act
2002, which came into effect on and from 1st July, 2002, was that there may
be a number of situations arising including the subsequent changes in law,
discovery of new and relevant facts which may require amendment of
original pleadings. However it was also felt necessary to ensure that this
provision is not abused and is not used as a means of delaying the
commencement of progress of the trial and to harass the other side. The
Law Commission was of the opinion that the power of amendment of
pleadings should not be taken away, and at the same time, to ensure that
this provision does not become a tool in the hands of mischievous litigants
to abuse the said power and contribute to prolongation of the trial, the Law
Commission observed that once the trial commences, no amendment should
be allowed except where it is found necessary on account of any fact coming
to the knowledge of the applicant "after framing of the issues" which he
could not have discovered, with due diligence, before the framing of issues.
The liberal power of the court to allow amendment of pleadings undoubtedly
has been curtailed and/or restricted by reason of the introduction of the
said proviso.
In the instant case, the parties are ad idem that the trial has
commenced, hence, it is not necessary for us to go into the question of
commensurate of trial.
22
The proviso to Order VI Rule 17 came up for consideration before the
Hon'ble Supreme Court in Chandra Kanta Bansal vs. Rajinder Singh
Anand reported at (2008) 5 SCC 117. The Hon'ble Supreme Court
considered the object and reason for such amendment and held that
although once a trial has commenced on the known pleas and it would be
very difficult to any side to reconcile but the proviso is not a complete bar
and does not completely shut out entertaining of any later application for
amendment; and in spite of such proviso, it would still vest enough power in
courts to deal with any unforeseen situation whenever they arise and in
deserving the cases the court can allow the same by compensating the other
side by awarding costs. In Chandra Kanta Bansal (supra) the dispute
arose in 1986 and after 18 years, when evidence and argument of the
parties were closed before the trial court, the appellant moved an application
on 12th May, 2004 seeking to introduce a so called agreement dated 10th
September, 1982 through which the appellant intended to prove that the
property had already been partitioned way back in 1982. The Hon'ble
Supreme Court in the said decision has also explained the conditions to be
fulfilled for 'due diligence' as prescribed in proviso to Rule 17 and in the
facts of the case, found that the pre-condition for due diligence were not
fulfilled. The relevant observations are -
"11.In order to find out whether the application of the defendant under
Order VI Rule 17 for amendment of written statement is bonafide and
sustainable at this stage or not, it is useful to refer to the relevant
provisions of CPC. Order 6 Rule 17 reads thus:
"17. Amendment of pleadings.- The Court may at any stage of the
proceedings allow either party to alter or amend his pleadings in
such manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the purpose
of determining the real questions in controversy between the
parties:
23
Provided that no application for amendment shall be allowed
after the trial 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."
This rule was omitted by the Code of Civil Procedure (Amendment) Act,
1999. However, before the enforcement of the Code of Civil Procedure
(Amendment) Act, 1999, the original rule was substituted and restored
with an additional proviso. The proviso limits the power to allow
amendment after the commencement of trial but grants discretion to the
court to allow amendment if it feels that the party could not have raised
the matter before the commencement of trial in spite of due diligence. It
is true that the power to allow amendment should be liberally exercised.
The liberal principles which guide the exercise of discretion in allowing
the amendment are that multiplicity of proceedings should be avoided,
that amendments which do not totally alter the character of an action
should be granted, while care should be taken to see that injustice and
prejudice of an irremediable character are not inflicted upon the
opposite party under pretence of amendment.
12. With a view to shorten the litigation and speed up the trial of cases
Rule 17 was omitted by amending Act 46 of 1999. This rule had been
on the statute for ages and there was hardly a suit or proceeding where
this provision had not been used. That was the reason it evoked much
controversy leading to protest all over the country. Thereafter, the rule
was restored in its original form by amending Act 22 of 2002 with a
rider in the shape of the proviso limiting the power of amendment to
some extent. The new proviso lays down that no application for
amendment shall be allowed after the commencement of trial, 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. But
whether a party has acted with due diligence or not would depend upon
the facts and circumstances of each case. This would, to some extent,
limit the scope of amendment to pleadings, but would still vest enough
24
powers in courts to deal with the unforeseen situations whenever they
arise.
13. The entire object of the said amendment is to stall filing of
applications for amending a pleading subsequent to the commencement
of trial, to avoid surprises and the parties had sufficient knowledge of
the others case. It also helps in checking the delays in filing the
applications. Once, the trial commences on the known pleas, it will be
very difficult for any side to reconcile. In spite of the same, an exception
is made in the newly inserted proviso where it is shown that in spite of
due diligence, he could not raise a plea, it is for the court to consider the
same. Therefore, it is not a complete bar nor shuts out entertaining of
any later application. As stated earlier, the reason for adding proviso is
to curtail delay and expedite hearing of cases.
14. Keeping the above broad principles in mind, let us ascertain
whether the defendant has justiciable cause to file an application
praying for amendment of a written statement for bringing an
agreement dated 10.09.1982. We have already referred to the fact that
the plaintiff had approached the court seeking a decree for mandatory
injunction as early as on 1986. We also refer to the fact that within a
short duration i.e. in 1986 itself, the defendant has filed a written
statement. Absolutely, there is no whisper about the prior partition
agreement dated 10.09.1982. No doubt, in the application for
amendment, it was stated that her son who is a Chartered Accountant
all along was looking after this suit and he died in the year 1998. It is
also available from the very same application that apart from her first
son, namely, Sunit Gupta, defendant has another son by name Navneet
Agarwal. Admittedly, the son, who looking after the suit, was none else
than a Chartered Accountant. In such circumstances, if the alleged
agreement dated 10.09.1982 between the plaintiff and defendant was
in existence nothing prevented her son, Chartered Accountant, to bring
it to the notice of her counsel and refer it in the written statement filed in
the year 1986. It is relevant to mention that in the reply, the plaintiff
25
has specifically denied the same and asserted that the alleged
agreement/partition deed dated 10.09.1982 is a forged document and
based on the same, the proposed amendment cannot be allowed. It is
also not in dispute and best known to both parties the suit which is of
the year 1986 came to be taken up for trial only in 2004 and admittedly
on the date of filing of the petition for amendment, the trial was on the
verge of completion. It was brought to our notice that both sides have
closed their evidence and completed their argument, but only at this
stage the defendant filed the said application for amendment of her
written statement.
15. As discussed above, though first part of Rule 17 makes it clear that
amendment of pleadings is permitted at any stage of the proceeding,
the proviso imposes certain restrictions. It makes it clear that after the
commencement of trial, no application for amendment shall be allowed.
However, if it is established that in spite of "due diligence" the party
could not have raised the matter before the commencement of trial
depending on the circumstances, the court is free to order such
application.
16. The words "due diligence" has not been defined in the Code.
According to Oxford Dictionary (Edition 2006), the word "diligence"
means careful and persistent application or effort. "Diligent" means
careful and steady in application to one's work and duties, showing
care and effort. As per Black's Law Dictionary (Eighth Edition),
"diligence" means a continual effort to accomplish something, care;
caution; the attention and care required from a person in a given
situation. "Due diligence" means the diligence reasonably expected
from, and ordinarily exercised by, a person who seeks to satisfy a legal
requirement or to discharge an obligation. According to Words and
Phrases by Drain-Dyspnea (Permanent Edition 13A) "due diligence", in
law, means doing everything reasonable, not everything possible. "Due
diligence" means reasonable diligence; it means such diligence as a
prudent man would exercise in the conduct of his own affairs.
26
17. It is clear that unless the party takes prompt steps, mere action
cannot be accepted and file a petition after the commencement of trial.
As mentioned earlier, in the case on hand, the application itself came to
be filed only after 18 years and till the death of her first son Sunit
Gupta, Chartered Accountant, had not taken any step about the so-
called agreement. Even after his death in the year 1998, the petition
was filed only in 2004. The explanation offered by the defendant
cannot be accepted since she did not mention anything when she was
examined as witness."
Hence, what is required by 'due diligence' would be everything
reasonable, and reading it into the proviso would mean that even if the
parties were careful, they could not have raised the matter before
commencement of the trial.
In a later decision in Rajkumar Gurawara vs. S.K. Sarwagi and
Company Pvt. Ltd. And Anr. reported at (2008) 14 SCC 364, the
conditions which are needed to be satisfied for allowing amendment after
commencement of the trial were discussed in paragraph 13 and 18 of the
report, which read -
"13. To put it clear, Order VI Rule 17 C.P.C. confers jurisdiction on the
Court to allow either party to alter or amend his pleadings at any stage
of the proceedings on such terms as may be just. Such amendments
seeking determination of the real question of the controversy between
the parties shall be permitted to be made. Pre-trial amendments are to
be allowed liberally than those which are sought to be made after the
commencement of the trial. As rightly pointed out by the High Court in
the former case, the opposite party is not prejudiced because he will
have an opportunity of meeting the amendment sought to be made. In
the latter case, namely, after the commencement of trial, particularly,
27
after completion of the evidence, the question of prejudice to the
opposite party may arise and in such event, it is incumbent on the part
of the Court to satisfy the conditions prescribed in the proviso.
...
18. ... It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. ..."
In the instant case, the amendment of the written statement is sought on basis of certain documents. The appellant has stated that these documents came to its knowledge during discovery of documents when they came across an order dated 21st August 2012 in AP No. 581 of 2012 which led them to the document. The defendants have been able to get a copy of the arbitration petition, and relevant records and orders pertaining to such proceeding, from the department of this Court. This arbitration petition is one of the documents that the appellant has relied on in the amendment application. It is contended by the appellant that from the arbitration petition, it would appear that the plaintiff partnership firm had made no claim on the property which is the subject matter of the present suit (that is, the said godowns). The only property over which claim is made by the partnership firm is situated at 170 Mahatma Gandhi Road, Kolkata - 700
007. It is reasonable to believe, therefore, that the appellant, on its own accord, may not have come across the document as: (i) it relates to a private dispute that the plaintiff/respondent had engaged in with a third party; and 28
(ii) the chances of coming across this document is miniscule as even exercising due diligence, the appellant would have had to find a needle in the haystack - a burden that would be too disproportionately high to place on the appellant in this regard.
The power of the court to allow such amendment is discretionary. However, there is a difference between amendment of plaint and amendment of written statement.
As the issue involved here is the amendment of the written statement, it would also be imperative to refer to the decision of the Apex Court in the case of Baldev Singh & Ors. vs. Manohar Singh & Anr.reported at (2006) 6 SCC 498, where it was held that the amendment sought in the plaint and the written statement stand on different footings. The relevant paragraph of the said report is 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."29
This was reiterated by the Apex Court in the case of Usha Balasaheb Swami vs. Kiran Appaso Swami reported at (2007) 5 SCC 602 with the following observations:
"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. ....
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 the case of L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. : [1957]1SCR438 , 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."
Hence, an amendment in the written statement and the plaint should not be treated similarly. Technicality should not come in the way of granting relief to the party. Here it would be relevant to reproduce the oft quoted para as in Jai Jai Ram Manohar Lal vs. National Building Material Supply reported at (1969) 1 SCC 869 wherein it was held that:
"5. ... 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 30 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 compensated 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."
This view has been the torch bearer in deciding application under order VI Rule 17. It would also be relevant to refer to the judgment of the Apex Court in the case of B.K. Narayan Pillai vs. Parameswaran Pillai reported at (2000) 1 SCC 712 wherein it was observed as under:
"3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hyper-technical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in, the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation."
A categorical admission cannot be released from but in a given case, it may be explained or clarified. The defendant is entitled to take an alternative plea which, however, cannot be mutually destructive of each other. An amendment in the nature of clarification and/or disclosing an alternative plea and an additional defence is permissible in law. Even assuming that 31 despite the amendment made by the Code of Civil Procedure (Amendment) Act 1976, amendment of pleading being procedural in nature (See Gautam Sarup v. Leela Jetly (2008) 7 SCC 85), the same should be liberally granted as in all other cases while exercising discretion by a court of law, it has to be done judicially. The same principle, in our view, should also apply after the amendment of the Code of Civil Procedure in 2002. The court now, while exercising jurisdiction, needs to find out if the "due diligence" test has been fulfilled.
Hence adopting a hyper technical approach in the present case also would thus defeat the purpose behind the amendment sought as it would fall foul of the first factor enunciated in Revajeetu Builders & Developers vs. Narayanswamy & Sons. reported at (2009) 10 SCC 84, which is, "whether the amendment sought is imperative for proper and effective adjudication of the case".
However, with the over emphasis on the proviso, the real spirit behind Rule 17 should not be lost sight of. It has also been time and again held that the general principle is that the courts at any stage of the proceedings may allow either party to alter or amend the pleadings in such a manner and on such terms as may be just and all those amendments must be allowed which are imperative for determining the real question in controversy between the parties. The basic principles for grant or refusal of amendment articulated almost 125 years ago are still considered to be correct statement of law and our courts have been following the basic principles laid down in those cases. It would be relevant here to refer to the judgment of the Apex 32 Court in the case of Revajeetu Builders (supra) where the court has not only traced the history of the provision but has also after examining the English and Indian precedents laid down the following guiding principles when dealing with the application under Order VI rule 17:
"FACTORS TO BE TAKEN INTO CONSIDERATION WHILE DEALING WITH APPLICATIONS FOR AMENDMENTS:
63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.
(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?
(2) Whether the application for amendment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.
64. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by 33 observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."
In the same volume of the Supreme Court Cases, there is another decision, namely, Surender Kumar Sharma v. Makhan Singh reported in (2009) 10 SCC 626, wherein it was held that a belated application for amendment is not liable to be rejected merely on the ground of delay, if the Court finds that by allowing such application real controversy between the parties may be resolved.
A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The court always gives relief to amend the pleading of the 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 cannot be compensated for by an order of cost, (See Mahila Ramkali Devi vs. Nandram reported at (2015) 13 SCC 132).
In J. Samuel & Ors. v. Gattu Mahesh & Ors. reported at (2012) 2 SCC 300, it was held that "due diligence" provides the test to determine whether the court's discretion to allow amendment should be exercised or not. There must be a reasonable cause for allowing amendment. The prayer for amendment in a suit for specific performance to incorporate plea mandatorily required by statute to be stated in the plaint claimed to have been missed due to "typographical error" was not allowed after conclusion of trial as it amounts to negligence and lack of due diligence and the 34 amendment was sought after arguments were completed and the matter was posted for judgment. It is elementary that in a suit for specific performance, if the plaintiff does not aver readiness and willingness mandatorily required under the Specific Relief Act, the suit is bound to fail and if a party knowingly proceeds with the suit without such essential and mandatory pleading, after conclusion of trial, the party should not be allowed to introduce such pleading. However, in the instance case, the amendment application was made immediately on discovery of the relevant materials soon after commencement of trial.
In a fairly recent decision in Gurbakksh Singh and Ors.Vs. Buta Singh and Anr. reported at (2018) 6 SCC 567, the amendment of the plaint after commencement of the trial was allowed on the grounds that the plaintiff was able to furnish good reasons for its inability in obtaining correct particulars well in time although number of witnesses had already been examined when the amendment was sought. The considerations for allowing amendment after commencement of trial are stated in paragraph 4 to 6 of the said report which reads -
"4. The High Court, however, dismissed said revision petition by its judgment and order dated 25.07.2017, which is presently under appeal. It was observed by the High Court:
"No doubt, the amendment would not change the nature of the suit, however, all amendments which do not change the suit cannot be allowed particularly after the commencement of the trial. It has been found by the Court that necessary pleadings are already in existence in the original plaint."35
The High Court was of the view that Proviso to Order 6 Rule 17 of the Code of Civil Procedure, as duly amended, laid down that once the trial had commenced, no amendment could be allowed unless the court were to come to the conclusion that the party could not have raised the matter before the commencement of the trial despite due diligence.
5. In the present case the record of Civil Suit No.195 of 1968 in which ex parte decree was passed on 30.06.1969 is not traceable. In the circumstances, there could possibly be some inability in obtaining correct particulars well in time on part of the appellants. At the time when the application for amendment was preferred, only two official witnesses were examined. The nature of amendment as proposed neither changes the character and nature of the suit nor does it introduce any fresh ground. The High Court itself was conscious that the amendment would not change the nature of the suit. In the given circumstances, in our view, the amendment ought to have been allowed. In any case it could not have caused any prejudice to the defendants.
6. While allowing amendment of plaint, after amendment of 2002, this Court in circumstances similar to the present case, in Abdul Rehman and Anr. vs. Mohd. Ruldu and Ors.(2012) 11 SCC 341, had observed:
"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 trial 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, 36 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 minimise 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 & Others v. Gattu Mahesh and Others(2012) 2 SCC 300 and Rameshkumar Agarwal v. Rajmala Exports (P) Ltd and Others. (2012) 5 SCC 337. Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment." (emphasis supplied) In the present case, an arbitration petition filed in a proceeding between the partners of the partnership firm, namely Ashutosh Roy Prafulla Kumar Roy, is now being relied on and forms the basis of one of the most important defences in the written statement, as the appellants contended that in a dispute between the partners of the partnership firm over its assets and properties, in paragraphs 30 and 33 of the said petition, the partners have admitted that the property situated at 170 Mahatma Gandhi Road Kolkata 700 007 is the "only" property of the partnership firm as on 23rd July, 2012. Accordingly, the appellant contends that the claim on the suit properties by the partnership firm as owners is to be disbelieved, especially when read with the letter dated 17th August 2010 addressed to the Joint Receivers by Md. Iqbal Khan, the defendant no. 1 in the suit. There are also admittedly some typographical mistakes which the appellant is seeking to 37 correct by amending the written statement. Additionally, a new paragraph 10A is sought to be inserted in the written statement by way of amendment, essentially as an alternative pleading on facts, which is permissible in law.
The stage has not come for the defendants to elect its defence. In fact, the statements made in paragraph 10A is in conformity with the original pleading of the written statement, particularly paragraph 6 (e). The plea of waiver is taken in the alternative as a defence to the claim of the plaintiff.
This defence appears to be in the alternative and at this stage is permissible.
In the instant case, the proposed amendments are not going to introduce any new cause of action nor would it change the nature and character of the defence. In paragraph 5 of the written statement, the appellant has stated that the eviction could not be carried out since the plaintiffs have transferred the property, for consideration, to the appellant.
Paragraph 6, which is broken up into numerous sub-paragraphs, lists out the details of how this transfer has taken place. The amendment sought to be made adds two sub-paragraphs in paragraph 6. The amendment merely adds another additional evidence (the arbitration petition) to show that the plaintiffs have themselves confirmed to a third party that it does not own the property in question herein. Prior to amendment, the case of the appellant is that the plaintiff no. 1 does not own the property. If the amendment is allowed, the case of the appellant will still remain the same - that the plaintiff no. 1 does not own the property. Therefore, the amendment does not "constitutionally or fundamentally change" the "nature and character of the case".38
The power of the Court to allow amendment of written statement after completion of evidence of plaintiffs came up for consideration in State of Bihar and Ors. v. Modern Tent House and Anr. reported at (2017) 8 SCC 567 where it is held that amendment only to elaborate and amplify defence already taken could be allowed to the defendant notwithstanding the said proviso. The said relevant observations can be found at paragraph 8 of the report which reads -
"8. We have perused the amendment application filed by the appellants. We find that firstly, the proposed amendment is on facts and the appellants in substance seek to elaborate the facts originally pleaded in the written statement; secondly and in other words, it is in the nature of amplification of the defense already taken; thirdly, it does not introduce any new defense compared to what has originally been pleaded in the written statement; fourthly, if allowed, it would neither result in changing the defense already taken nor will result in withdrawing any kind of admission, if made in the written statement; fifthly, there is no prejudice to the plaintiffs, if such amendment is allowed because notwithstanding the defense or/and the proposed amendment, the initial burden to prove the case continues to remain on the plaintiffs; and lastly, since the trial is not yet completed, it is in the interest of justice that the proposed amendment of the defendants should have been allowed by the Courts below rather than to allow the defendants to raise such plea at the appellate stage, if occasion so arises." (emphasis supplied) In a fairly recent decision in M. Revanna vs. Anjanamma and Anr.
reported at (2019) 4 SCC 332 amendments of pleadings after the commencement of trial came up for consideration before the Hon'ble Supreme Court. The pre conditions for allowing amendment of pleadings 39 after the commencement of the trial is stated in paragraph 7 of the said report, which states -
"7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order VI Rule17 of the CPC virtually prevents an application for amendment of pleadings from being allowed after the trial 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 the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the Court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money." (emphasis supplied) In the instant case as we have noted earlier considering the materials disclosed in the stay petition, there was no lack of due diligence on the part of the appellants inasmuch as the amendment is necessary for proper and fair adjudication of the dispute. Moreover, the nature of amendment is only to elaborate and elucidate the existing defence and such amendment cannot cause prejudice to the plaintiffs. The application cannot be said to be mala fide. Even in Vidyabai (supra), the Supreme Court has observed at paragraph 19 of the report that "it is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute 40 between the parties" and thereafter observed that "the proviso appended to order VI Rule 17 of the Code restricts the power of the court". However, the second part of paragraph 19 (the part in relation to the proviso) does not abridge and/or restrict the power of the Court to allow amendment if such an amendment is necessary to decide the real dispute between the parties, especially, if the six factors enunciated in Revajeetu Builders (supra) and the six conditions in Modern Tent House (supra) are fulfilled. However, we hasten to add that the application before the learned single judge was bereft of the particulars explaining the facts constituting the reason as to why in spite of due diligence, the appellants were unable to file the application for amendment of written statement earlier. The learned Single Judge did not consider the nature of the amendment at all in view of the finding that there is lack of 'due diligence'. The learned Single Judge in our view should have considered the nature of the amendment, along with 'due diligence' as it is necessary for the court notwithstanding the introduction of the proviso to consider and apply the principles enunciated by the Hon'ble Supreme Court in decisions subsequent to the amendment. These particulars have now been disclosed and we are satisfied with the explanations offered.
In view of the reasons stated above, we set aside the order dated 20th February 2019.
The appeal is allowed. The prayer for amendment is allowed.41
The department is directed to carry out the amendment within two weeks from date and the amended written statement shall be served upon the Advocate on record of the plaintiffs within one week thereafter.
The plaintiffs, if so advised, may file additional pleadings within two weeks after reopening of courts after puja vacation. The said directions are peremptory. The trial shall resume as soon as the aforesaid formalities are completed.
There shall be no order as to costs.
Urgent Photostat certified copy of this judgement, if applied for, be given to the parties on an usual undertaking.
I agree (Soumen Sen, J.)
(Ravi Krishan Kapur, J.)