Karnataka High Court
M/S Automobiles Service Centre vs Sri S Selvaraj on 19 June, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF JUNE, 2012
BEFORE:
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
W.P.NO.19333/2012(L-TER)
&
W.P.NO.19334/2012 (L-RES)
W.P.NO.19333/2012:
BETWEEN:
M/s.Automobile Service Centre
No.108, Victoria Road,
Agram Post,
Bangalore - 560 007
Now at No.111,
Sadaramangala Industrial Area,
Whitefield Road,
Near ITPL,
Bangalore - 560 048
Represented by its
Managing Partner
Sri.V.P.Thiruvengadaswamy ..PETITIONER
(BY SRI.B.G.SURYAKUMAR, ADVOCATE FOR ESSKHAY
ASSOCIATES)
AND:
Sri.S.Selvaraj
No.117, Old Madras Road,
2
Laxmipuram,
Ulsoor,
Bangalore - 560 008. ..RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR THE ENTIRE RECORDS FROM THE IT BANGALORE IN
SL APLN.NO.25/94. SET ASIDE THE ORDER DATED
08.06.2012 ON THE FILE OF IT BANGALORE IN SL APLN.
NO.25/94 AT ANNEXURE-H AS BEING ILLEGAL,
ARBITRARY, NULL AND VOID WITHOUT JURISDICTION AND
IS VIOLATIVE OF SETTLED PRINCIPLES OF LAW.
W.P.NO.19334/2012:
BETWEEN:
M/s.Automobile Service Centre
No.108, Victoria Road,
Agram Post,
Bangalore - 560 007
Now at No.111,
Sadaramangala Industrial Area,
Whitefield Road,
Near ITPL,
Bangalore - 560 048
Represented by its
Managing Partner
Sri.V.P.Thiruvengadaswamy ..PETITIONER
(BY SRI.B.G.SURYAKUMAR, ADVOCATE FOR ESSKHAY
ASSOCIATES)
AND:
Sri.M.Muniyappan
3
C/o S.Babu,
No.12/1, III Cross,
Laxmipuram,
Ulsoor,
Bangalore - 560 008. ..RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR THE ENTIRE RECORDS FROM THE IT BANGALORE IN
SL APLN.NO.24/94. SET ASIDE THE ORDER DATED
08.06.2012 ON THE FILE OF IT BANGALORE IN SL APLN.
NO.24/94 AT ANNEXURE-H AS BEING ILLEGAL,
ARBITRARY, NULL AND VOID WITHOUT JURISDICTION AND
IS VIOLATIVE OF SETTLED PRINCIPLES OF LAW.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Petitioner-management seeks for quashing of the order passed by Industrial Tribunal in SL application No.25/94 & 24/94 dated 08.06.2012 at Annexure-H in both the writ petitions.
2. Facts in brief which has necessitated the petitioner to approach this court invoking extraordinary jurisdiction are as under:
4
For an alleged misconduct respondents were issued with articles of charge and domestic enquiry was conducted and they came to be dismissed from service. Since an industrial dispute in I.D.39/91 with regard to charter of demands was pending before Labour Court applications were filed by petitioner under section 33(2)(b) of Industrial Disputes Act seeking approval of Industrial Tribunal.
Objections came to be filed to said applications and evidence of parties came to be recorded. Tribunal held domestic enquiry conducted was fair and proper and passed an order rejecting the applications. Aggrieved by the same, petitioner challenged said orders in W.P.13111/2007 before this court and order of rejection of application came to be set aside by this court by remanding the matter back to the Tribunal for fresh disposal. Thereafter during the pendency of proceedings before Tribunal an application for amendment of statement of objections was filed by respondent-workmen which came to be opposed by petitioner-management.
Tribunal by order dated 08.06.2012 (in both the writ 5 petitions) allowed the applications for amendment of statement of objections and it is these orders namely dated 08.06.2012 Annexure-H which has been impugned in these writ petitions by petitioner-management.
3. Heard the arguments of Sri.B.G.Surya Kumar, learned advocate for petitioner and perused the impugned orders as also the pleadings of the parties filed before Industrial Tribunal which is annexed to the petitions.
4. Tribunal after considering rival contentions raised by parties has allowed the applications by assigning the following reasons:
(a) By proposed amendment opposite party wants to take up the plea regarding maintainability of the application and this being purely a question of law same can be urged at any stage.
(b) No prejudice would be caused to applicant by allowing the amendment.6
(c) While considering the amendment application court cannot examine the merits of amendment, which has been raised by management.
(d) That proposed amendment is necessary for effective and complete adjudication of the main application.
5. Learned counsel for petitioner has argued the matter in extenso by contending that Industrial Tribunal committed a serious error in allowing the applications without considering the objections raised by petitioner-management in proper perspective. He would submit that amendment should have been refused since the management would be wholly displaced if the proposed amendment is allowed, since it would take away the legal right which has been accrued to management by lapse of time and by operation of law. When the amendment sought is not in good faith and when it lacks bonafides allowing such amendment would take away the admission made by a party in the original proceedings. He would also elaborate his submission by contending that even 7 otherwise respondent has waived his right by virtue of which certain rights having accrued to petitioner-management and on this ground also application for amendment sought should have been dismissed. He would contend that workmen had waived their right if any to raise a plea of maintainability of application by virtue of not raising the same at earlier point of time and as such they cannot now question the same that too at this length of time. He would contend that there is inordinate and abnormal delay of 18 years in filing the application and as such Industrial Tribunal committed a serious error in allowing these applications and seeks for setting aside the order of Tribunal by dismissing the application for amendment. In support of his submissions he has relied upon the following Judgments:
(1) AIR 1979 SC 1701 -Union of India Vs Surjit Singh Atwal (2) AIR 2008 SC 2234 - Chander Kanta Bansal Vs Rajinder Singh Anand (3) 2004(3) AWC 2162 - Devendra Mohan and ors Vs State of U.P. and others 8 (4) Unreported Judgment from Hon'ble Apex Court in Civil Appeal Nos.4791-4887/2006 dated 10.11.2006 -
Chairman, U.P.Jal Nigam and anr Vs Jaswant Singh and anr.
6. Having heard learned advocate appearing for petitioner and on perusal of impugned orders it would emerge that on a order of remand was passed by this court in W.P.13111/2007 dated 19.09.2007 by consent of learned advocates appearing for both the parties and order dated 05.12.2006 passed by Industrial Tribunal rejecting the application filed by petitioner-management, Industrial Tribunal, Bangalore came to be set aside. Thereafter Tribunal has taken up applications for consideration afresh. During the pendency of the proceedings an application under section 11(1) of Industrial Disputes Act, 1947 was filed by workmen seeking amendment of statement of objections by proposing to insert paragraph 15 after paragraph 14 whereunder they have sought to place certain facts which have taken place by way of amplification. The thrust of the amendment sought for is to contend that very application made by petitioner- 9 management under section 33(2)(b) was not maintainable since there was contravention of section 33(1)(b) of the Industrial Disputes Act. This application came to be resisted by petitioner-management and as narrated herein supra, Industrial Tribunal has allowed these applications for the reasons stated in the impugned order.
7. Before delving upon as to whether Industrial Tribunal was justified in allowing the application or not I would like to consider the case laws relied upon by learned counsel for petitioner since the order of amendment passed by Industrial Tribunal allowing the applications for amendment is questioned on the ground it is against the principles laid down therein:
1. AIR 1979 SC 1701 - Union of India Vs Surjit Singh Atwal "5. Shri.Bhatt, learned counsel for the appellant submitted that the suit was based on the agreement of November, 1947 and that this agreement was void as the provisions of Section 175(3) of the Government of India Act, 1935, were not complied with. We do not 10 prima facie agree that the suit was based on any agreement arrived at in November, 1947. We do not, however, desire to go into the question as we are satisfied that the Appellate Court was right in holding that the defendant was not entitled to raise the plea of illegality of the agreement, not having so pleaded in the written statement and not having raised any issue with regard to it. We agree with the learned Judges of the Calcutta High Court that to permit such a plea to be raised several years after the institution of the suit would greatly prejudice the plaintiff. If such a plea had been raised at the appropriate stage, the plaintiff might have come out with a suitable answer. He might have had his own pleadings amended either by seeking to rest his case on the original agreement or under Section 65 or Section 70 of the Indian Contract Act. We do not wish to speculate on the possible alternate cases which the plaintiff might have put forward had the plead been raised. We only wish to observe that the plea that the provisions of Section 175(3) of the Government of India Act had not been complied with is a mixed plea of fact and law. We further agree with the view expressed by the learned Judges of the Calcutta High Court that the illegality of a contract must be specifically pleaded as much as the denial of a contract. Order VI, rule 8 provides that where a contract is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract alleged or of the matters of fact from which the same be implied, and not as a denial of the legality or sufficiency in law of such contract. Order VIII, Rule 2 Civil Procedure Code prescribes that the defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law. In Kalyanpur Lime Works Ltd., Vs State of Bihar 11 and anr. the Supreme Court reversed the judgment of the High Court on the ground that the High Court was not justified in allowing to be raised at the same time of argument the question whether there was a contravention of Section 30 of the Government of India Act, 1915. Reliance was placed upon Order VI, Rule 8 and Order III, Rule 2 of the Civil Procedure Code 1908. We are, therefore, of the view that the Division Bench of the High Court was right in holding that the learned Single Judge was not justified in permitting the defendant to take up the plea that the contract was hit by the failure to comply with the requirements of Section 175(3) of the Government of India Act. In the result the appeal is dismissed with costs.
In this matter, Union of India which was defendant in the suit filed by plaintiff seeking for payment of amount due under the bills raised by plaintiff and certain letter which was contended to be a contract between the parties sought for amendment of written statement. In the written statement which was filed initially there was no reference to agreement which had taken place between the parties. But after filing of counter statement by defendant, plaintiff sought for amendment of the plaint and sought to incorporate a plea with reference to agreement between parties and it was also 12 contended by plaintiff that subsequent to completion of work there was a conference between parties and an agreement was entered between parties regarding rates and claimed certain amounts are due to him came to be allowed. Thereafter defendant who had agreed or admitted about contract of execution of work having been entrusted to plaintiff and work having been completed denied the aspect of any subsequent conference having been held and agreement entered into as plea sought to be raised by way of amendment to written statement was contract in question was hit by failure of compliance with provision of 175(3) of Government of India Act, 1935 which application was dismissed. However suit came to be dismissed on several questions of fact. It was also held that for want of compliance of section 175(3) of the Government of India Act, 1935 suit is liable to be dismissed. On an appeal Division Bench reversed the finding and held that defendant not having pleaded in the written statement the contract contravened Section 175(3) of the Government of India Act, 1935 and no issue having been framed such a plea 13 ought not to have been entertained at a belated stage and accordingly it decreed the suit. On further appeal by Union of India this technical plea which had been raised by way of amendment in the written statement was sought to be put forward before the Apex Court and same came to be negatived on the ground that the suit was not based on agreement alone arrived at in November, 1947 as pleaded in the plaint but on certain correspondence/letters and as such Apex Court confirmed the order of Appellate Court since that was not the plea raised originally. Infact their Lordships have observed that it is a matter not merely of surprise but shocking that such a blatant false plea was raised by a Government in solemn proceedings before Court of law. It was also observed by Apex Court that the Government which should set an example as an ideal litigant went to the extent of raising a false and untenable plea as often raised on behalf of Government. Judgment of Division Bench that suit was based on letters originally filed by plaintiff, decree passed by Division Bench was not interfered by Apex Court. The issue 14 regarding delay was also taken note of by the Apex Court. It is this observation which is sought to be contended by learned counsel for petitioner to request this court to take note of the fact that there has been delay of 18 years in raising such a plea. At this juncture it requires to be noticed as to whether such delay would defeat the nature of defence or the plea of the management. What is sought to be raised by way of amendment by workman in the statement of objections is amplification of existing pleadings and nothing beyond it and thereby questioning the very jurisdiction of the Tribunal to entertain the application. The issue of jurisdiction being a question of law can be gone into by the courts even at the appellate stage though not raised. As such the said judgment relied upon by the learned counsel for petitioner is inapplicable to the facts of the present case. AIR 2008 SC 2234 - CHANDER KANTA BANSAL VS RAJINDER SINGH ATWAL In a suit filed for mandatory injunction, an application for amendment of the written statement came to be filed 15 contending that there was a written agreement entered into between the parties on 10.9.1992. The suit was filed in the year 1996 taking note of the fact that even prior to the filing of the suit, the alleged agreement was in existence and was available with the defendant and same having not pleaded, High Court dismissed the application, which came to be affirmed by the Apex Court.
8. Learned counsel for the petitioner has contended that the principles enunciated in the said judgment is squarely applicable to the facts on hand and when the trial is concluded and the matter is at the stage of arguments, an application for amendment of statement of objections ought not to have been allowed. At this juncture itself, it would be appropriate to state that the amendment of the plaint and amendment of the written statement stand on two different footings. In an amendment of the plaint, if a prayer is sought for, which is time barred, cannot be allowed. Whereas when amendment of the written statement is sought, the defendant 16 is permitted to even to raise all pleas either by way of alternative pleas or even inconsistent pleas. This is fortified by the judgment of the Apex Court in the case of Usha Balashaheb Swami and Others Vs. Kiran Appaso Swami and Others reported in AIR 2007 SC 1663. In fact, the Hon'ble Apex Court has held in the said judgment that interference by the High Court in the writ jurisdiction under Article 227 should not be made and it has been held by the Apex Court as under:
"18. 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 17 substituting a new cause of action in the plaint may be objectionable.
19. Such being the settled law, we must hold that in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case [see B.K.Narayana Pillai v. Parameswaran Pilllai (2000 (1) SCC 712) and Baldev Singh & Ors. v. Manohar Singh (2006 (6) SCC 498)]. Even the decision relied on by the plaintiff in Modi Spinning (supra) clearly recognises that inconsistent pleas can be taken in the pleadings. In this context, we may also refer to the decision of this Court in Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (Dead) [1995 Supp (3) SCC 179]. In that case, the defendant had initially taken up the stand that he was a joint tenant along with others. Subsequently, he submitted that he was a licensee for monetary consideration who was deemed to be a tenant as per the provisions of Section 15A of the Bombay Rents, 1947. This Court held that the defendant could have validly taken such an inconsistent defence. While allowing the amendment 18 of the written statement, this Court observed in Basavan Jaggu Dhobi's case (supra) as follows:-
"As regards the first contention, we are afraid that the courts below have gone wrong in holding that it is not open to the defendant to amend his statement under Order 6 Rule 17 CPC by taking a contrary stand than was stated originally in the written statement. This is opposed to the settled law open to a defendant to take even contrary stands or contradictory stands, the cause of action is not in any manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action.
29. For the reasons aforesaid, we are unable to sustain the judgment of the High Court rejecting the application for amendment of written statement on the ground that if such amendment was allowed it would seriously prejudice the plaintiff. There is yet another aspect of the matter. The trial court on consideration of the written statement as well as the application for amendment of the written statement. The High Court ought not to have reversed the said order of the trial court, rejecting the application for amendment of the written statement, 19 when the trial court has exercised its discretion in allowing the amendment of the written statement on consideration of the principles of law and the material on record."
In view of the law laid down by the Apex Court, the judgment in the case of Chander Kanth Bansal referred to supra would not come to the rescue of the petitioner in this case.
9. Learned counsel for the petitioner has raised a plea that delay itself is sufficient for rejection of the application for amendment. No doubt, the question as to whether on account of such delay any right is accrued to the opposite party, so as to reject the application for amendment, is a question of fact which has to be examined on case to case basis and no universal application of law is laid down or can be laid down in this regard. In fact, the Hon'ble Apex Court in the case of Andhra Bank Vs. ABN Amro Bank N.V. & others reported in AIR 2007 SC 2511 has categorically held that delay in 20 seeking the amendment is not a ground and it has also held while examining such ground, if it encroaches upon entertaining or considering the merits of such claim, same should not be permitted. It has been held in the said judgment as under:
"5. We have heard Mr. Rohit Kapadia, learned senior counsel appearing for the appellant and Mr. S.Ganesh, learned senior counsel for the respondent. We have perused the original written statement as well as the application for amendment of the written statement. After going through the written statement and the application for amendment of the written statement, we are of the view that the amendment sought to be introduced by the appellant must be allowed. From a perusal of the impugned order of the Special Court we find basically that two grounds have been taken by the Special Court for rejecting the prayer for amendment of the written statement. The first ground is that considerable delay has been caused by the appellant in filing the application for amendment of the written statement. It is well settled that delay is no ground for refusal of prayer for amendment. Mr.Ganesh, appearing for ABN Amro 21 Bank submits before us that by filing of such an application for amendment of the written statement which has been filed with long delay, the appellant sought to stall the hearing of the suit which has been fixed on 13th July, 2007. In response to this Mr.Kapadia, learned counsel for the appellant, submits that in the event the prayer for amendment is allowed by us his client undertakes to file the amended written statement by day after tomorrow, i.e., 12th July, 2007 before the Special Court. Since, we are of the view that delay is no ground for not allowing the prayer for amendment of the written statement and in view of the submissions made by Mr.Kapadia, we do not think that delay in filing ten statement can stand in the way of allowing the prayer for amendment of the written statement. So far as the second ground is concerned, we are also of the view that while allowing an application for amendment of the pleadings, the Court cannot go into the question of merit of such amendment. The only question at the time of considering the amendment of the pleadings would be whether such amendment would be necessary for decision of the real controversy between the parties in the suit. From a perusal of the amendment application we 22 find that the appellant in their prayer for amendment has only taken an additional defence that in view of Section 230 of the Indian Contract Act, the suit itself is not maintainable. It is well settled, as noted herein earlier, that at the time of considering the prayer for amendment of the written statement it would not be open to the Court to go into the fact whether in fact the suit in view of Section 230 of the Indian Contract Act was or is not maintainable.
7. In view of the reasons stated herein above we are of the view that the order of the Special Court rejecting the application for amendment of the written statement filed by the appellant is liable to be set aside and the prayer for amendment of the written statement must be allowed. Accordingly, the application for amendment of the written statement is allowed and the impugned order is set aside. We are informed by the learned counsel for the parties appearing before us, as noted herein earlier, that the suit has been fixed for hearing on 13th July, 2007 and the parties will not seek any adjournment on that date. In that view of the matter we direct the appellant to file the amended written statement by 12th July, 2007 positively and thereafter, the Special 23 Court shall proceed with the hearing of the suit. The appeal is allowed to the extent indicated above. There will be no order as to costs".
In the very same judgment, the Hon'ble Apex Court has also held that even if there is a new plea raised by way of defence such amendment is permissible and said conclusion arrived at by the Hon'ble Apex Court reads as under:
"6. That apart it is permissible in law to amend a written statement of the defendant by which only an additional ground of defence has been taken".
10. In the background of the law laid down by the Apex Court in ABN Amro Bank's case, let me now examine as to whether question of waiver raised by the petitioner herein and the judgment of the Apex Court in U.P.Jal Nigam and Another Vs. Jaswant Singh and Another relied upon would in any way assist the petitioner. In the said case, Apex Court has held that in the event of acquiescence on the part of a claimant has resulted in change of position which occurred on account of defendant's part, the court can take 24 into consideration the acquiescence for the purpose of rejecting the claim. In this background when the facts namely the plea that is sought to be put in the written statement when examined would clearly go to show that workmen is questioning the very jurisdiction or maintainability of the application on the ground of pendency of I.D.No.39/91, which was pending even as on the date of application filed by the petitioner. There cannot be any dispute with regard to pendency of I.D.No.39/91 as on the date of dismissal of respondent-workmen and as to whether the said pendency is having any nexus to the present proceeding or not is a question, which requires to be examined and it is this precise plea which was sought to be put forward by the workmen. The management also does not dispute with regard to the pendency of I.D.No.39/91 and as such question of acquiescence does not arise and there cannot be any estoppel against law, the provision of Section 33(1)(b) is mandatory and any amount of waiver or consent does not confirm jurisdiction on the Industrial Tribunal. Such 25 consent or acquiescence is alien to Section 33(1)(b). In view of the same judgment relied upon by the learned counsel for the petitioner in the case of Chairman, Jal Nigam stated supra does not tilt the scale of balance in favour of the petitioner.
11. The judgment of the Hon'ble High Court of Allahabad in the case of Devendra Mohan and Others Vs. State of U.P. and Others reported in 2004 3 AWC 2162 relied upon by the learned counsel for the petitioner to contend that amendment of pleadings cannot be allowed so as to completely alter the nature of the suit and the principles enumerated therein cannot be doubted as held in a catena of judgments referred therein. As noticed hereinabove, in the instant case, the very jurisdiction namely the maintainability of the application filed by the petitioner is sought to be raised by way of amendment in order to avoid any technical plea being taken in this regard. Infact, in almost identical circumstances namely as to whether dispute regarding amendment of the written statement at a belated stage came 26 up for consideration before the Apex Court in the case of Baldev Singh and Others Vs. Manohar Singh reported in AIR 2006 SC 2832, whereunder the application for amendment of the written statement was filed, which came to be dismissed on the ground that said issue cannot be raised and there cannot be inconsistent plea raised by defendant. However, it came to be set aside by the Hon'ble Apex Court by holding that amendment of written statement stands on a different footing as that of the amendment of the plaint and allowed the application by holding that raising of inconsistent plea cannot be a ground for rejection of the amendment and while considering the actual interpretation to be given to the words "Commencement of Trial" used in Order 6 Rule 17 it has been held as follows:
"13. In view of this decision, it can be said that the plea of limitation can be allowed to be raised as an additional defence by the appellants. Accordingly, we do not find any reason as to why amendment of the written statement introducing an additional 27 plea of limitation could not be allowed. The next question is that if such amendment is allowed, certain admissions made would be allowed to be taken away which are not permissible in law. We have already examined the statements made in the written statement as well as the amendment sought for in the application for amendment of the written statement. After going through the written statement and the application for amendment of the written statement in depth, we do not find any such admission of the appellants which was sought to be withdrawn by way of amending the written statement.
14. As noted herein earlier, the case set up by the plaintiff/respondent No.1 was that his parents had no money to purchase the suit property and it was the plaintiff/respondent No.1 who paid the consideration money. In the written statement, this fact was denied and further it was asserted in the written statement that the suit property was in fact purchased by 28 their parents and they had sufficient income of their own. In the application for amendment of written statement it was stated that the plaintiff/respondent No.1 did not have any income to pay the consideration money of the suit property and in fact the parents of the plaintiff/respondent No.1 had sufficient income to pay the sale price. It was only pointed out in the application for amendment that after the death of their parents, the suit property was mutated in the joint names of the plaintiff/respondent No.1 and the defendants in equal shares.
Therefore, the question whether certain admissions made in the written statement were sought to be withdrawn is concerned, we find, as noted herein earlier, there was no admission in the written statement from which it could be said that by filing an application for amendment of the written statement, the appellants had sought to withdraw such admission. It is true in the original written statement, a statement has been made that it is the defendant No.1/appellant No.1 is the owner and in 29 continuous possession of the suit property but in our view, the powers of the Court are wide enough to permit amendment of the written statement by incorporating an alternative plea of ownership in the application for amendment of the written statement. That apart, in our view, the facts stated in the application for amendment were in fact an elaboration of the defence case. Accordingly, we are of the view that the High Court as well as the Trial Court had erred in rejecting the application for amendment of the written statement on the ground that in the event such amendment was allowed, it would take away some admissions made by the defendants/appellants in their written statement. That apart, in the case of Estralla Rubber vs. Dass Estate (P) Ltd. [(2001) 8 SCC 97], this Court held that even there was some admissions in the evidence as well as in the written statement, it was still open to the parties to explain the same by way of filing an application for amendment of the written statement. That apart, mere delay of three years in filing the application for amendment 30 of the written statement could not be a ground for rejection of the same when no serious prejudice is shown to have been caused to the plaintiff/respondent No.1 so as to take away any accrued right.
16. This being the position, we are therefore of the view that inconsistent pleas can be raised by defendants in the written statement although the same may not be permissible in the case of plaint. In the case of M/s. Modi Spinning and Weaving Mills Co.Ltd. & Anr. Vs. M/s. 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 defendants/appellants are not allowed to take inconsistent pleas in their defence.
18. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the 31 trial of the Suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted herein after, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings".32
12. As noted hereinabove, in the instant case, the Industrial Tribunal has allowed the application in question on the ground that workman intends to take up a plea regarding maintainability of the application and if permitted to be raised, the said plea can be examined and no prejudice would be caused to the petitioner-Management. I do not find any infirmity in the said reasoning adopted by Industrial Tribunal.
13. It has also held that parties would be at liberty to argue or plead as to how such a plea would not have any bearing on the pending application in order to have an effective and complete adjudication and thereby has allowed the applications in question. I do not find any good ground to interfere for the reasons aforesaid and I do not find any merit in these petitions. Accordingly, I pass the following ORDER I) Writ Petitions are hereby dismissed.
II) The Industrial Tribunal shall dispose of the applications filed by petitioner under Section 33 33(2)(b) on merits without being influenced by any observations made by this Court in this order.
III) Ordered accordingly.
Sd/-
JUDGE SBN/PB