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CASE NO.: Appeal (civil)  3362 of 2006

PETITIONER: Baldev Singh & Ors. Etc.

RESPONDENT: Manohar Singh & Anr. Etc.

DATE OF JUDGMENT: 03/08/2006

BENCH: AR.Lakshmanan & Tarun Chatterjee

JUDGMENT: J U D G M E N T  (Arising out of SLP) Nos.12719-12720/2005)

TARUN CHATTERJEE,

       Leave granted.          An order rejecting an application for amendment of a  written statement passed by the Additional Civil Judge  (Senior Division), Nawanshahar, Punjab and Haryana  and  affirmed by a learned Judge of the Punjab and Haryana High  Court,  is now under challenge before this Court by way of a  Special Leave Petition under Article 136 of the Constitution of  India filed at the instance of the defendants/ appellants  excepting the Respondent No.2 herein.         A suit has been filed by the plaintiff/respondent No.1  (Manohar Singh)  for a declaration that he is the owner and  in possession of 40 Kanals and 15 Merlas comprised in Kh.  No. 16(8-0), 17(8-0),19(8-0),20/1(7-4), 25/1(1-11) of rect  No.19 of Khewat No.212 Khatauni No. 263 as fully described  to the schedule of the plaint.  ( hereinafter referred to as "the  suit property").         The case set up by the plaintiff/respondent No.1 was  that the sale deeds executed on 24.6.1968 and 25.6.1968 in  the names of his parents were benami transactions and the  plaintiff/respondent No.1 was the real owner of the same as  his parents had no money to pay the consideration money of  the suit property and that the sale deeds were executed  pursuant to an oral agreement to sell which was entered into  only by the plaintiff/respondent No.1.  The appellants  entered appearance and filed their written statement, inter  alia, denying that there was any agreement to sell the suit  property or that the suit property was owned and possessed  by the plaintiff/respondent No.1.  It has also been pleaded in  the written statement that the defendant No.1/appellant  No.1 is the actual owner and in possession of the suit  property because he was residing in India continuously in  village Bhin without any interruption from any one whereas  the plaintiff is residing permanently in Canada.  During the  pendency of the suit, an application for amendment of the  written statement was filed by the appellants seeking its  amendment in which it was alleged that the suit was barred  by limitation and that the plaintiff/respondent No.1 had no  money to pay the sale price of the suit property, and that the  father of the parties, who was serving as a Foreman in the  Central Government and their mother had sufficient income  to pay the sale price of the suit property and on the death of  their parents the names of the plaintiff and the defendants  have been mutated in equal shares in respect of the suit

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property. Accordingly, the   defendants/appellants sought for  amendment of the written statement in the manner indicated  herein earlier.  It was further pleaded in the application for  amendment of the written statement that the amendment  sought for was in fact an elaboration of the case made out in  the written statement. The High Court as well as the Trial  Court rejected the application for amendment of the written  statement.   Feeling aggrieved by and dissatisfied with the order  rejecting the application for amendment of the written  statement, this Special Leave Petition has been filed which,  on grant of leave, was heard in presence of the learned  counsel for the parties.            We have heard the learned counsel for the parties in  detail on the question whether the amendment sought for in  the written statement, in the facts and circumstances of the  present case, ought to have been allowed or not.

Before we take up this question for our decision, we  must consider some of the principles to be governed for  allowing an amendment of the pleadings.             It is well settled by various decisions of this Court   as  well as the High Courts in India that Courts should be  extremely liberal in granting the prayer for amendment of  pleadings unless serious injustice or irreparable loss is  caused to the other side.  In this connection, reference can  be made to a decision of the Privy Council in Ma Shwe Mya  v. Maung Mo Hnaung (AIR 1922 P.C. 249) in which the  Privy Council observed:          

       "All rules of courts are nothing but  provisions intended to secure the proper  administration of justice and it is, therefore,  essential that they should be made to serve  and be subordinate to that purpose, so that  full powers of amendment must be enjoyed  and should always be liberally exercised, but  nonetheless no power has yet been given to  enable one distinct cause of action to be  substituted for another, nor to change by  means of amendment, the subject-matter of  the suit."                                        Keeping this principle in mind, let us now consider the  provisions relating to amendment of pleadings.  Order 6 Rule  17 of the Code of Civil Procedure deals with amendment of  pleadings which provides that 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.  A bare perusal of this  provision, it is pellucid that Order 6 Rule 17 of the Code of  Civil Procedure consists of two parts.   The first part is that  the Court may at any stage of the proceedings allow either  party to amend his pleadings and the second part is that  such amendment shall be made for the purpose of  determining the real controversies raised between the parties.  Therefore, in view of the provisions made under Order 6 Rule  17 of the CPC it cannot be doubted that wide power and  unfettered discretion has been conferred on the Court to  allow amendment of the pleadings to a party in such manner  and on such terms as it appears to the Court just and

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proper.   While dealing with the prayer for amendment, it  would also be necessary to keep in mind that the Court shall  allow amendment of pladings if it finds that delay in disposal  of Suit can be avoided and that the suit can be disposed of  expeditiously. By the Code of Civil Procedure (Amendment)  Act, 2002 a proviso has been added to Order 6 Rule 17 which  restricts the Courts from permitting an amendment to be  allowed in the pleadings either of the parties, if at the time of  filing an application for amendment, the trial has already  commenced. However, Court may allow amendment if it is  satisfied that in spite of due  diligence,  the party could not  have raised the matter before the commencement of trial.  So  far as proviso to Order 6 Rule 17 of the Code of Civil  Procedure is concerned, we shall deal with it later.

Keeping these principles in our mind, let us now  consider whether the High Court as well as the Trial Court  had erred in rejecting the application for amendment of the  written statement filed by the appellants.

 A bare perusal of the order rejecting the application for  amendment of the written statement indicates that while  rejecting the application for amendment of the written  statement, the High Court as well as the trial court based  their decisions mainly on three grounds. The first ground  was that since the appellants had made certain admissions  in the written statement, its amendment cannot be allowed  permitting the appellants to withdraw their admission made  in the same. Secondly, the question of limitation cannot be  allowed to be raised by way of an amendment of the written  statement and lastly inconsistent pleas in the written  statement cannot also be allowed to be raised by seeking its  amendment.                                       

So far as the second ground for rejection of the  amendment of the written statement is concerned, we do not  like to delve in detail in view of the decision of this Court in  the case of Ragu Thilak D.John vs. S.Rayappan and Others  [(2001) 2 SCC 472].   In para 6, this Court observed:

"If the aforesaid test is applied in the instant  case, the amendment sought could not be  declined.  The dominant purpose of allowing  the amendment is to minimize the litigation.   The plea that the relief sought by way of  amendment was barred by time is arguable in  the circumstances of the case, as is evident  from the perusal of averments made in paras  8(a) to 8(f) of the plaint which were sought to  be incorporated by way of amendment.  We  feel that in the circumstances of the case the  plea of limitation being disputed could be  made a subject-matter of the issue after  allowing the amendment prayed for."        (underlining is ours)

          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 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

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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.  

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 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 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 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.

Let us now take up the last ground on which the  application for amendment of the written statement was  rejected by the High Court as well as the Trial Court.   The  rejection was made on the ground that inconsistent plea  cannot be allowed to be taken.   We are unable to appreciate  the ground of rejection made by the High Court as well as the  Trial Court.   After going through the pleadings and also the

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statements made in the application for amendment of the  written statement, we fail to understand how inconsistent  plea could be said to have been taken by the appellants in  their application for amendment of the written statement,  excepting the plea taken by the appellants in the application  for amendment of written statement regarding the joint  ownership of the suit property. Accordingly, on facts, we are  not satisfied that the application for amendment of the  written statement could be rejected also on this ground.    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.

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.

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 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.    For the reasons aforesaid, we are of the view that the  High Court as well as the trial court erred in rejecting the  application for amendment of written statement. Accordingly,  the orders of the High Court and the trial court are set aside,  the application for amendment of written statement is  allowed. The defendants/appellants are directed to file an  amended written statement within a period of one month

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from the date of production of this order before the trial court  positively. Considering the facts and circumstances of this  case, we direct the trial court to dispose of the suit within a  period of one year from the date of communication of this  order to it.  The appeals are allowed. There will be no order  as to costs.