Chunnilal Talukdar vs Smt. Kumudini Paul and Others

S.N. Phukan, J.—Opposite parties herein as plaintiffs filed a suit before the Learned Munsiff No. 1 Goalpara which was registered as Title Suit No. 57 of 1983 against the present petitioner for a decree for eviction of the petitioner from the suit premises and for recovery of possession. The ground, inter alia, was that the present petitioner as a tenant defaulted in payment of monthly rent from the month of January, 1982 to June, 1983. In the written statement vide paragraph 7, the present petitioner took the plea that from August, 1976 to December, 1981 monthly rent was paid regularly and receipts were also granted; but as the opposite parties refused to accept rent from the month of January, 1982 the rent was deposited in the court under the provisions of the Law. The suit proceeded for trial and after closure of evidence and at the stage of argument the present petitioner filed a petition for amendment of paragraph 7 of the written statement on the ground of typographical error. The copy of the said petition is at Annexure 1 to the present petition. From the said petition, it appears that the petitioner wanted to change the year 1981 to 1982 occurring in 18th line of paragraph 7 and the year 1982 to 1983 occurring in 22nd line of the said paragraph. In other words, the defendant wanted to change the plea regarding payment of rent and wanted to plead that rent from August, 1976 to December, 1982 was paid regularly and that on refusal the said rent was deposited in the court from the month of January, 1983.

The Learned trial court by the impugned order rejected the prayer of amendment mainly on the ground that errors in the evidence cannot be allowed to be corrected by amending the pleadings at the final stage of the suit.

Mr. S.R. Bhattacharjee, Learned Counsel for the petitioner has strenuously urged that in view of the provisions of Rule 17 of Order VI, CPC the court may at any stage of the proceeding allow either party to alter or amend his pleading for the purpose of determining the real questions in controversy between the parties. In support Mr. Bhattacharjee has placed reliance in Ganesh Trading Co. Vs. Moji Ram, .

The Apex court in Ganesh Trading Company (supra) held that procedural law is intended to facilitate and not to obstruct the course of substantive justice and that provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviation from the course which litigation on particular cases of action must take. The Apex Court also held that provisions for the amendment of pleadings are intended for promoting the ends of justice and not for defeating them and that even if a party or its counsel is inefficient insetting out its case initially the shortcomings can certainly be removed generally by appropriate steps taken by a party. The Apex Court, however, held that if lapse of time has barred the remedy on a newly constituted cause of action the court should, ordinarily refuse prayers for amendment of pleadings.

In view of the legislative mandate provided under Order VI Rule 17 of the Code of Civil Procedure, the court has power to allow any party to alter or amend his pleadings at any stage for the purpose of determining the real questions in controversy between the parties. As held by the Apex Court it is equally true that procedural law is intended to facilitate and not to obstruct the course of substantive justice. But the Supreme Court held that if by lapse of time the remedy for amendment has been barred the court should ordinarily refuse prayer for amendment of the pleadings.

Situated thus, let me examine whether the impugned order was legally and validly passed. From paragraph 3 of the plaint there is specific averment by the plaintiffs that the defendant did not pay rent from January, 1982 to June, 1983. In the written statement it was specifically stated that rent was paid from August, 1976 to December, 1981 for which receipts were granted but the defendant deposited the rent in court from January, 1982 as the plaintiffs refused to accept the amount. On the basis of the above specific controversy the trial proceeded and the court was to decide the question whether the defendant was a defaulter from January 1982 to June, 1983. If the present amendment is allowed the whole character of the suit would be changed as the plea of the defendant would be that rent was paid in the court from January, 1983 on refusal to accept the said rent by the plaintiffs. In other words, the real controversy between the parties would change completely which should not be allowed at this late stage when the evidence of the parties has been closed. I am, therefore, of the opinion that the Learned trial court passed the order legally and validly.

In view of the plea taken by the petitioner that the mistake in the year for which the amendment was prayed for was due to typographical error. Mr. Yadav, Learned Counsel for the opposite parties has rightly drawn my attention to Sub-rule (3) of Rule 2 of Order VI, CPC, which was introduced by the CPC (Amendment) Act, 1976. According to aforesaid sub-rule dates, sums and numbers shall be expressed in a pleading in figures as well as in words. In the present proceeding, the defendant did not express the figures in words in the written statement. I am, therefore, of the opinion that the petitioner cannot now take the plea of typographical error as he failed to observe the procedure as laid down in the aforesaid Sub-rule (3) of Rule 2 of Order VI, CPC.

In opposing the present petition the Learned Counsel for the opposite parties has drawn my attention to three decisions of Orissa, Allahabad and Punjab and Haryana High Courts. In Khali and Others Vs. Sadhaba Bewa and Others, , the Learned Munsif suo motu suggested and allowed the plaintiff to amend the plaint in order to keep evidence at par with pleadings though the suit was posted for judgment. It was inter alia; held that merely because evidence and pleadings not tally amendment of pleadings should not be allowed and that if allowed new trial would begin on various issues of a character not already pleaded. In the case in hand also if the proposed amendment is allowed the trial may have to start de novo as the opposite parties shall have to lead fresh evidence and as rightly submitted by the Learned Counsel that the present prayer for amendment is only to keep the written statement at par with the evidence.

In Chanan Singh Vs. Khushal Kaur, , it was held that gross negligence cannot in law afford a valid ground for allowing amendment. I respectfully agree and hold that in the case in hand it was gross negligence on the part of the petitioner in not praying for amendment at the appropriate time. It is also difficult to believe that this defect in the written statement could not be detected at the time of adducing evidence on behalf of the defendant. It appears that the petition for amendment of the written statement was an afterthought only for the purpose of keeping the pleadings at par with the evidence.

In Mahmood Khan and Another Vs. Ayub Khan and Others, , prayer for amendment of the plaint was rejected because a valuable right had accrued to the defendant and a new cause of action was sought to be brought out by the amendment. I respectfully agree with the views expressed by the Division Bench of the Allahabad High Court and hold that in the instant case also a valuable right has accrued to the opposite parties by virtue of the statement made in the written statement and that if the prayer for amendment is allowed, as stated earlier, it would introduce a new case.

From what has been stated above, I hold that the present petition is liable to be rejected as by the impugned order the Learned trial. Court legally and validly rejected the prayer for amendment of the written statement.

In the result, the petition is dismissed and the Rule is discharged. Interim order, if any, stands vacated. No costs.