Arun vs Krishan and another

 [1]. Petitioner has challenged the order dated 02.09.2016 passed by Additional Civil Judge (Senior Division), Samalkha, vide which application filed

by the petitioner for amendment of written statement was declined.

[2]. Defendants/petitioner sought to amend written statement at the stage when the case was fixed for evidence of the defendants.

Defendants/petitioner sought to incorporate para No.11, thereby alleging that the sale deeds dated 31.12.2007 were the result of fraud and the same

were never intended to be acted upon, nor were in fact acted upon being sham and bogus transactions.

[3]. The proposed amendment in the written statement is not such which would change the basic stand of the defendants/petitioner. Defendants are

leading their evidence and they are entitled to take inconsistent pleas by way of amendment in the written statement. The amendment of written

statement stands on different pedestal, than the amendment of plaint.

[4]. The case of the plaintiff is that he had purchased the land from the defendants vide the aforesaid sale deeds dated 31.12.2007. The elaboration of

the stand taken in the written statement can be allowed by means of amendment of written statement on the strength of ratio laid down in M/s Estralla

Rubber Vs. Dass Estate (Pvt.) Ltd.,2001(4) RCR (Civil) 362, wherein it was held that elaboration of defence in support of earlier plea taken in the

written statement would be in consonance with the provisions of amendment under Order 6 Rule 17 CPC.

[5]. It is mandatory on Court to allow all amendments which are necessary for the purpose of determining the real controversy between the parties.

At the same time, the Court is not obligated to go into the correctness or falsity of the case of either side in the amendment. The merits of the case

are not to be adjudged at the stage of allowing the prayer for amendment.

[6]. Rule of amendment is essentially a rule of justice, equity and good conscience and it has to be exercised in larger interest of doing complete justice

between the parties. All bona fide amendments which are necessary for determining the real issue between the parties should be allowed. Procedural

hurdles ought not to impede the cause of justice in dispensation mechanism.

[7]. An amendment in the pleadings is to be liberally construed so as to consider real controversy between the parties and to give verdict more

satisfactorily. The proviso to the Rule to some extent curtails absolute discretion of the Court to allow amendment at any stage, however knowledge

and due diligence are the considerations on which bona fide of the party has to be tested in order to prevent frivolous applications for amendment. The

object of the Rule is that the Court must try the merit of the case and allow all amendments which may be necessary for determination of real

controversy between the parties. In this regard reference can be made to Ramchandra Sakharam Mahajan vs. Damodar Trimbak Tanksale (Dead)

and ors. (2007) 6 SCC 737 and Rajesh Kumar Aggarwal vs. K.K. Modi, AIR 2006 SC 1647.

[8]. Order 6 Rule 17 CPC is in two parts. First part is discretionary and leaves it to the Court to order amendment in the pleadings. Second part is

imperative and enjoins the Court to allow all amendments which are necessary for determining real issue between the parties. The first condition for

the amendment is that it should not be unjust and result in prejudice against the opposite party. It could not be compensated in terms of cost or would

deprive the opposite party for a valuable right which has accrued to him with the passage of time. The second condition is that the amendment is

perceived to be necessary by the Court for the purposes of determining real issue between the parties. All amendments are to be allowed which

satisfies the aforesaid two conditions. Amendment can be refused if such a prayer is barred by time or where the opposite party would suffer

irreparable loss which could not be compensated in terms of cost. The Court can allow the amendment at any stage of proceedings for the purposes

of determining real issues between the parties. The whole object and purpose of the provision is to avoid multiplicity of litigation, however no such

amendment should be allowed which may result in material prejudice to the opposite party and is not capable of being compensated in terms of cost.

[9]. In Usha Balashaheb Swami & Ors. vs. Kiran Appaso Swami & Ors., 2007(2) RCR (Civil) 830, the Hon'ble Apex Court summed up the criteria

for allowing or disallowing the amendment of written statement. Para Nos.20 and 23 of the aforesaid judgment are being reproduced hereasunder:-

“20. 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 substituting a new cause of action in the plaint may be objectionable.

Keeping these principles in mind, namely, that in a case of 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, we may now proceed to consider whether the High Court

was justified in rejecting the application for amendment of the written statement.â€​

[10]. Evidently, the Court is conferred with the powers at any stage of the proceedings to allow amendment in the written statement, if in the opinion

of the Court such amendment may be necessary for real determination of issue between the parties. Amendment can be allowed, even after

commencement of the trial, if in the opinion of the Court that amendment could not be brought on record despite knowledge and due diligence by the

party and the party could not have raised the matter before commencement of the trial. The amendment in the written statement has to be liberally

construed unless and until serious prejudice or irreparable loss is caused to the opposite side or the amendment is mala fide.

[11]. The plea of the respondent No.1 that the amendment should not be allowed after commencement of the trial has to be tested on the strength of

bona fide of the amendment. There is no blanket bar for acceptance of the plea of amendment of written statement after commencement of the trial if

the amendment sought is proved to be bona fide in nature.

[12]. For the reasons recorded hereinabove, impugned order dated 02.09.2016 passed by Additional Civil Judge (Senior Division), Samalkha is set

aside. This revision petition is allowed, however subject to costs of Rs.10,000/- to be paid to the plaintiff. Payment of costs shall be the condition

precedent for granting any indulgence by the trial Court in the aforesaid context.