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PETITIONER: B.K-NARAYANA PILLAI

       Vs.

RESPONDENT: PARARNESWARAN PILLAI & ANR.

DATE OF JUDGMENT:       13/12/1999

BENCH: S.P.Kurdukar, R.P.Sethi

JUDGMENT:

     Leave granted.  Heard-.

     .   .  The respondent-plaintiff filed a suit  against’ the  appellant-defendant praymg.  for the grant of mandatory and prohibitory injunction seeking eviction allegedly on the ground  of  his being’ a licences, in the written  statement filed  the  appellant  herein  pleaded that  he  was  not  a licencee  but  a lessee.  During the trial of the  suit  the appellant  filed an application for amendment of the written statement  to  incorporate an alternative plea that in  case the  court  found that the defendant was a licencee, he  was not liable to be evicted as according to him the licence was irrevocable.  He further wanted to add a plea that first and ’second  prayers in the plaint were barred.by.limitation and that  as  acting upon the licence he has executed  works  of permanent  nature and incurred expenses in execution of  the same,his  iteence  cannot  be revoked by the  grantor  under Section  60(b)  of  the Indian Eastements Act.   1882.   The prayer  was rejected by the Trial Court as also by the  High Court on the ground that the proposed amendment, was mutusHy destructive  which,  if allowed, would amount to  permitting the  defendant  to withdraw the admission allegedly made  by him in the main written statement.

     ’The-purpose  andob}ectof  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 guideline  laid down by various High Courts and this  Court. It  is true that the amendment cannot be clawed as a  matter of right and under all circumstances, But it is equally true that the courts while deciding such prayers should not adopt hypertechnicai  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.

     This  Court in A.K.  Gupta & Sons vs.  Damodar  Valley Corporation [1966 (l )SCR 7961 held:

     "The  general  rule, no doubt, is that s party is  not

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allowed  by amendment to set up a new case or a new cause of action  particularly  when  a suit or new case or  cause  of action is barred:  Weldon v Neale (1887) 19 QBD 394.  But it is  also  well recognised that where the amendment does  not constitute  the addition of a new cause of action or raise a different  case, but amounts to no more than a different  or additional approach to the same facts, the amendment will be allowed  even  after the expiry of the statutory  period  of limitation:  See Charan Das v.  Amir Khan AIR 1921 PC 50 and LJ.   Leach  and  Company limited and  another  v.   Jardine Skinner and Company 1957 SCR433.

     The  principal reasons that have led to the rule  last mentioned are, first, that the object of courts and rules of procedure  is to decide the rights of the parties and not to punish  them for their mistakes (Cropper v.  Smith (1884) 26 Ch.D.   700)  and  secondly, that a party  is  strictly  not entitled  to rely on the statute of limitation when what  is sought  to  be  brought in by the amendment can be  said  in substance to be already in the pleading sought to be amended in  Kishandas  Rupchand v.  Rachappa Vithoba (1909)  ILR  33 Born.    644   approved  in   Pirgonda  Hongonda   PatH   v. KalgondaShidgonda Patil 1957 SCR595.

     The  expression  ’cause  of  action’  in  the  present context does not mean ’every fact which it is material to oe proved  to entitle the plaintiff to succeed’ ss was said  in Cooke  v.   Gift  (1873) 8 CH 107.  in a different  context, for  if it were so.  no material fact could ever be  amended or  added and, of course, no one would want to change or add an  immaterial allegation by amendment.  That expression for the  present  purpose only means, a new claim made on a  new basis  constituted  by new facts.  Such a view was taken  in Robinson v.  Unicos Proper Corporation limited 1962-2 All ER 24, and it seems to us to be the only possible view to take. Any  other  view would make the rule futil.  The words  ’new case’  have  been  understood to mean ’new  set  of  ideas’: Doman v.  J.W.  Ellis and company Limited 1962-1 All ER 303. This also seems to us to be a

     reasonable view to take.  No amendment will be allowed to  introduce  a  new set of ideas to the prejudice  of  any right acquired by any party by lapse of time."

     Again  in Smt.Ganga Bai v.  Vijay Kumar & Ors.   [1974 (2) SCC 3931 this Court held:

     "The  power to allow an amendment is undoubtedly  wide and  may  at  any stage be appropriately  exercised  in  the interest  of justice, the law of limitation notwithstanding. But  the exercise of such far reaching discretionary  powers ie  governed  by  judicial   considerations  and  wider  the discretion,  greater ought to be the care and circumspection on the part of the Court."

     In M/s.Ganesh Trading Company v.Moji Ram [1978 (2) SCC 913 it was held;

     "it  is  clear from the foregoing summary of the  main rules  of  pleadings  and provisions for  the  amendment  of pleadings,  subject to such terms as to costs and giving  of all  parties concerned necessary opportunities to meet exact situations  resulting  from  amendments,  are  intended  for promoting  the  ends of justice and not for defeating  them. Even if a party or its Counsel is inefficient in setting out

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its case initially the short coming can certainly be removed generally  by appropriate steps taken by a party which  must no dubt pay costs for the inconvenience or expense caused to the  other  side  from  its omissions.   The  error  is  not incapable  of  being rectified so long as remedial steps  do not unjustifiably injure rights accrued.

     The  principles  applicable to the amendments  of  the plaint  are  equally  appilcable to the  amendments  of  the written  statements.   The  courts   are  more  generous  in allowing  the amendment of the written statement as question of  prejudice is less likely to operate in that event.   The defendant  has  a right to take alternative plea in  defence which,  however,  is  subject to an exception  that  by  the proposed  amendment  other side should not be  subjected  to injustice  and  that  any admission made in  favour  of  the plaintiff is not withdrawn.  All amendments of the pleadings should  be allowed which are necessary for determination  of the  real  controversies in the suit provided  the  proposed amendment does not alter or substitute a new cause of action on the basis of which the original l’s was raised or defence taken.    Inconsistent  and   contradictory  allegations  in negation  to  the  admitted position of  facts  or  mutually destructive  allegations of facts should not be avowed to be incorporated  by  means  of   amendment  to  the  pleadings. Proposed  amendment  should not cause such prejudice to  the other  side  which  can  not be compensated  by  costs.   No amendment  should be allowed which amounts to or relates  in defeating  s  legal right accruing to the opposite  part  on account  of lapse of time.  The delay in Filing the petation for   amendment   of  the   pleadings  should  be   properly compensated  by  costs  and error or mistake which,  if  not fraudulent,  should  not be made a ground for rejecting  the application for amendment of plaint or written statement.

     In the appeals the appellant-defendant wanted to amend the  written  statement by taking a plea that in case he  is not  held a lessee, he was entitled to ^e benefit of Section 60(b)  of the Indian Eastements Act, 1682.  Learned  counsel for the appellant is not interested in incorporation of the

     other   pleas  raised  in   the  appiication   seeking amendment,  i  he  plea  sought  to  be  raised  is  neither inconsistent  nor  repugnant to the pleas already raised  in defence.   The alternative plea sought to be incorporated in the  written statement is in fact the extension of the  plea of  the  respondent-  plaintiff and rebuttal  to  the  issue framed  regarding  liability  of   the  appellant  of  being dispossessed  on  proof of the fact that he was  a  iicencee liable  to  be evicted in accordance with the provisions  of law.   The  mere  fact  that the  appellant  had  filed  the application  after  a  prolonged delay could not be  made  a ground  for  rejecting  his  prayer  particularly  when  the respondent-  plaintiff could be compensated by costs.  We do not  agree  with  the  finding of the High  Court  that  the proposed  amendment virtually amounted to withdrawal of  any admission made by the appellant and that such withdrawal was likely to cause Irretrievable prejudice to the respondent.

     It haspeen state on penai of the respondent at the Bar that  the appeiiant having not come to the court with  clean hands  is  not entitled to any discretionary relief.  It  is contended that the appellant has not paid any licence fee as per  the  terms  of the additional licence  granted  in  his favour.  It has been stated that in case the appeals allowed

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the  appellant defendant be directed to pay all the  arrears of  the  licence fee.  We find substance in  the  submission made on behalf of the respondents.

     .   Under the circumstances, the appeal are allowed by setting  aside the orders impugned.  The appellant-defendant is permitted to amend the written statement to the extent of incorporating  the plea of his entitlement to the benefit of Section 60(b) of the Indian Easements Act, 1882 only subject to  his paying all the arrears on account of licence fee and costs  assessed  at Rs.3,000/- within a period of one  month from  the  date  the parties j^ov in the Trial  Court.   The payment  and receipt of the arrears of licence fee shall  be without  prejudice to the rights of the parties which may be adjudicated  by  the trial court.  Costs of’ the appeal  are made easy.