REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3236 OF 2009 (Arising out of SLP(C) No. 20650 of 2008)

Sushil Kumar Jain                   …Appellant

VERSUS

Manoj Kumar & Anr.                         ..Respondents

J U D G M E N T

TARUN CHATTERJEE,J.

1. Leave granted.   

2. This appeal is directed against the order dated 15th of  July,  

2008 passed by a learned Judge of the High Court of Punjab and  

Haryana at Chandigarh in Civil Revision No. 3700 of 2008, by which  

the Civil  Revision case filed by the tenant/appellant was rejected,  

affirming the order passed by the Rent Controller, Chandigarh, by  

which  the  Rent  Controller  had  rejected  the  application  for  

amendment of the written statement under Order 6 Rule 17 of the  

Code of Civil Procedure (in short “the CPC”) filed by the appellant.  

3. The  landlords/respondents  have  filed  an  ejectment  

proceeding  in  respect  of  the  Main  Gate  and Covered  

First  Floor of Shed No. 771, Industrial  Area,  Phase-II,  

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Chandigarh  (hereinafter  referred  to  as  the  “demised  

premises”).   This ejectment proceeding has been filed  

under section 13 of the East Punjab Rent Restrictions  

Act (in short, the “Act”), in which under paragraph 2 the  

appellant has been described as a tenant in respect of  

the demised premises. In view of the controversy raised  

before us, it would be appropriate to produce paragraph  

2 of the said petition, which is, as hereinunder:  

“Paragraph  2:  Respondent  is  a  tenant  in  respect  of  premises  describable as Main Gate and Covered First Floor of Shed No. 771,   Industrial Area, Phase II, Chandigarh.”  

4. Be it  mentioned herein  that  this  is  a paragraph,  which has  

sought to be amended that has resulted in controversy between the  

parties. The appellant has entered appearance and filed a written  

statement denying the material allegations made in the said petition  

under Section 13 of the Act. So far as the statements made under  

Paragraph  2  of  the  ejectment  proceeding  is  concerned,  the  

appellant made the following averments:

“Paragraph 2: That Paragraph 2 of the petition is also admitted to  be correct. It is however submitted that the respondent is occupying  other areas of  771 Industrial  Area,  Phase II,  Chandigarh as well   under different tenancies.” So far as the other statements made in   the ejectment proceeding are concerned, the appellants denied the  

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allegation made therein and sought for rejection of the ejectment   proceeding.   

5. During  the  pendency  of  the  ejectment  proceeding  under  

Section  13  of  the  Act,  more  precisely,  on  6th of  June,  2008,  an  

application  under  Order  6  Rule  17  of  the  CPC was filed  by  the  

appellant, praying for an amendment of the written statement stating  

inter  alia  that  there  was  inadvertently  some  confusion  and  

misstatement  of  facts  which  needed  to  be  rectified  and  that  the  

proposed amendment  was necessary for  adjudication of  the  real  

matter in controversy. The amendment sought for clearly stated that  

there  are  three  different  portions  under  one  tenancy  and  not  

different  portions under different  tenancies,  which can be evident  

from the original written statement filed by the appellant. By filing the  

application for amendment of the written statement,  the appellant  

sought deletion of the words “under different tenancies”, what was  

sought to be removed was the contradiction and confusion having  

been raised in the written statement which was never intended to be  

an admission. The appellant further alleged that by amendment he  

sought to explain and adopt a different and inconsistent plea in the  

written  statement.  However,  it  would  be  appropriate  for  us  to  

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reproduce  the  amendment  prayed  for  which  is  in  the  following  

manner :   

“4.  That in para 2 of the reply the word “under different tenancies”   be deleted. 5.   That  para  3  of  the  reply  be  substituted  with  the  following  paragraph :-      That para 3 of the petition as stated is not correct and is thus,   denied.  It is, however, admitted that the respondent came in the   premises  initially  in  an  area  of  15  X 45’  facing  main  road  on  a  monthly rent of Rs.5000/-.  Subsequently, in the year 2003 more  portion was added, i.e. main gate faving Taj Furniture and the First   Floor and the rent  of  all  the three portion was agreed to be Rs.  7000/-.   Rs.  5000/-  per  month  had  been  paid  through  payee’s   account cheques and Rs. 2000/- per month had been paid in cash   for which no receipt has been issued by Manoj Kumar.  The total   rent  up  to  December,  2007  has  been  paid  in  the  above-said  manner.  It is wrong and denied that the monthly rent was payable   in  advance  by  7th of  each  month  or  that  it  was  required  to  be  increased by 5% each year.  The respondent continued to pay Rs.   7000/- per month to Manoj Kumar who had been receiving the rent   each month till  the month of  December,  2007.   It  is  respectfully   submitted that there has been very cordial relations between Manoj   Kumar  and  the  Respondent  and  there  was  lot  of  trust  and  confidence  and  because  of  the  Trust  and  confidence,  the  Respondent  had  been  payment  Rs.  2000/-  per  month  in  case  without  obtaining  the  receipt  and  has  paid  the  entire  rent  up  to   December, 2007.  The Respondent is ready and willing to pay the  rent  @  Rs.  7000/-  per  month  from  01.01.2008  onwards.   The   petitioner has exploited the good relationship and after receiving the   rent in case till December, 2007, he has filed the present petition. 6.  That para 4 of the reply be allowed to be amended and the word  “November” occurring in second line be substituted with the word   “December”.   In  the  4th line,  the  word  “December,  2007”  be  substituted with 1st “January, 2008.” 7.   That  likewise the word “November”  2007 be substituted with   word “December” 2007 occuring in sub-para (i) of para 5 and the   word “December, 2007” be substituted with “January, 2008”. 8.  That the proposed amendment is necessary for the adjudication  of the matter in controversy.  The amended reply is filed herewith.”

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6. The  learned  Rent  Controller,  Chandigarh,  rejected  the  

application for amendment of the written statement inter alia holding  

that  if  such  amendment  was  allowed,  the  appellant  would  be  

permitted to withdraw his admissions made in the original  written  

statement, which is not permissible in law.  The High Court affirmed  

the order of the Rent Controller similarly holding that the appellant  

shall  not  be  permitted  to  withdraw  the  admission  made  in  the  

original  written  statement  and  accordingly,  rejected  the  Civil  

Revision case.     

7. Feeling  aggrieved,  the  appellant  has  filed  a  Special  Leave  

Petition,  which  on  grant  of  leave,  was  heard  in  presence  of  the  

learned counsel for the parties.   

8. We  have  heard  the  learned  counsel  for  the  parties  and  

examined the impugned order as well as the order of the learned  

Rent  Controller.  We  have  also  examined  the  pleadings  in  the  

ejectment  proceeding  under  section  13  of  the  Act,  the  original  

written statement and the application for amendment of the written  

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statement. In our view, the High Court had acted illegally and with  

material irregularity in the exercise of its jurisdiction in rejecting the  

application for amendment of the written statement on the ground as  

stated  hereinabove.  After  going  through  the  pleadings  in  the  

amendment petition as well as the original written statement, we fail  

to understand why such amendment should not be allowed.  In our  

view, having considered the averments made in the application for  

amendment of the written statement, it cannot be said that in fact  

neither  any admission was  made by the appellant  in  his  original  

written  statement  nor  the appellant  had sought  to  withdraw such  

admission made by him in his written statement.  

9. That apart, a careful reading of the application for amendment  

of the written statement, we are of the view that the appellant seeks  

to only elaborate and clarify the earlier inadvertence and confusion  

made  in  his  written  statement.   Even  assuming  that  there  was  

admission made by the appellant in his original written statement,  

then also, such admission can be explained by amendment of his  

written statement even by taking inconsistent pleas or substituting or  

altering his defence.   

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10. At this stage, we may remind ourselves that law 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.  Adding a new ground of defence or substituting or altering  

a  defence does not  raise  the  same problem as adding,  altering,  

substituting a new cause of action (See Baldev Singh & Ors. vs.  

Manohar Singh & Anr.  AIR 2006 SC 2832).   

11. Similar view has also been expressed in  Usha Balashaheb  

Swami & Ors. Vs.  Kiran Appaso Swami & Ors. AIR 2007 SC  

1663.  It is equally well settled that in the case of an amendment of  

a written statement,  the Courts would be more liberal  in allowing  

than that of a plaint as the question of prejudice would be far less in  

the former than in the latter and addition of a new ground of defence  

or substituting or altering a defence or taking inconsistent pleas in  

the written statement can also be allowed.   

12. Keeping  these  principles  in  mind,  let  us  now  take  up  the  

question raised before us by the learned counsel for the parties. As  

stated  herein  earlier,  the  admission  made by a  defendant  in  his  

written  statement  can  be  explained  by  filing  the  application  for  

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amendment  of  the same.  This principle  has been settled  by this  

Court  in  Panchdeo Narain  Srivastava Vs.  K.  Jyoti  Sahay AIR  

1983 SC 462, while considering this issue, held that the admission  

made by a party may be withdrawn or may be explained.  It was  

observed in paragraph 3 of the said decision as follows:-

“An  admission  made  by  a  party  may  be  withdrawn  or  may  be   explained away.  Therefore, it cannot be said that by amendment,   an admission of fact cannot be withdrawn……….”    

13. In view of our discussions made hereinabove and applying the  

principles laid down by this court in the aforesaid decisions, we are  

therefore of the view that the High Court as well as the learned Rent  

Controller  had  acted  illegally  and  with  material  irregularity  in  the  

exercise  of  its  jurisdiction  in  not  allowing  the  application  for  

amendment of the written statement of the appellant.   

14. Before  parting  with  this  judgment,  a  short  submission  as  

advanced by the learned counsel for the respondents may be dealt  

with.  Referring to the proviso to Order 6 Rule 17 of the CPC, the  

learned counsel for the respondents argued that the proviso clearly  

bars that any application for amendment either of plaint or of written  

statement  can  be  allowed after  trial  has  commenced  unless  the  

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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.   Therefore,  the  learned  counsel  for  the  respondents  

submitted that in view of the proviso to Order 6 Rule 17 of the CPC,  

the High Court as well as the Rent Controller had acted within their  

jurisdiction in rejecting the application for amendment of the written  

statement on the ground that the trial has already commenced and,  

therefore, no interference can be made in respect of the same.       

15. We are unable to agree with this submission of the learned  

counsel for the respondents.  In this case, in our view, the trial has  

not  yet  commenced.   In  para 17,  of  Baldev Singh (Supra),  this  

Court observed :-

“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 hereinafter, 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.”        

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16. In view of the aforesaid decision and in view of the admitted  

fact  that  not  even the  issues have yet  been framed,  documents  

have not yet been filed, evidence has not yet been adduced, we are  

of the view that the proviso to Order 6 Rule 17 of the CPC has no  

manner of application as the trial has not yet commenced.    

17. Accordingly, the impugned order of the High Court as well as  

that  of  the  Rent  Controller,  Chandigarh,  is  set  aside.   The  

application for amendment of the written statement is thus allowed.  

The Rent Controller, Chandigarh, is directed to permit amendment  

of the written statement and, thereafter, proceed with the hearing of  

the  eviction  proceeding.   The  Rent  Controller,  Chandigarh  is  

directed to dispose of the ejectment proceeding within six months  

from the date of supply of a copy of this order to it.   

18. Accordingly,  the  appeal  is  allowed  to  the  extent  indicated  

above.  There will be no order as to costs.                  

 …..……….………………J. [TARUN CHATTERJEE]

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New Delhi;                   …………….………………..J. May 05, 2009.  [H.L. DATTU]  

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