Girdhari Lal vs Girdhari Lal

Mian Jalal-ud-din, ACTG., C.J.—At the appellate stage of the proceedings the Appellant has moved this Court for leave to amend the

written statement. It is this application that requires consideration and determination by this Court.

The Appellant has averred that in the written statement filed by him in the trial court he did not in detail spell out his defence. The suit of the

Plaintiff-Respondent was based on a promissory note. The Defendant Appellant had categorically disclaimed the execution of the promissory note.

He put the Plaintiff to strict proof of the same. Inter alia the Defendant had submitted in the written statement that it was common knowledge that

financiers obtain signatures of the borrowers on a blank paper. When the Defendant Appellant appeared as a witness he spelt out that the

signatures of the Appellant were taken on a blank piece of paper and that the said document had been filled in later on in English. The Defendant

Appellant was a literate businessman and was in a capacity to execute and write the promissory note himself. The learned trial court did not believe

the statement of the Defendant on the ground that the Defendant had deliberately and under no mistake omitted to incorporate the material facts in

his written statement and he could not be allowed at a later stage of the proceedings to change his front and make a new case for himself. It is

submitted that the Defendant has suffered on account of not making a detailed and fuller plea with regard to the fraud practised upon him as

mentioned above and Defendant has failed on a technical plea. The trial court appears to have been greatly affected by this absence of full and

detailed written statement. The Defendant, therefore, prays that in the interest of justice, he be allowed to amend the written statement in order to

enable him to submit a better, fuller and detailed written statement.

This application has been resisted by the Plaintiff Respondent on manifold grounds. It is submitted that it is no stage to seek leave for amending

the written statement that no reasonable cause exists for this amendment. As a matter of fact, the categorical denial of the execution of the

promissory note in the written statement is evident of the fact that the plea now sought to be raised falls within the purview of inconsistency of

pleadings which cannot be allowed. The application is misconceived and is meant to protract the proceedings and embarrass the fair disposal of

the suit. Under law, the purpose of allowing amendment is only to enable the court to decide the real question of controversy between the parties.

The present case has already been effectively decided by the court below on the basis of the pleadings and the evidence of the parties. The

Appellant has not come with clean hands to the court and is guilty of laches.

Appearing for the Appellant, Mr. Sehgal, has submitted that with a view to do full justice in the case, it is desirable and proper to order

amendment of the written statement in terms of the application. Learned Counsel has led us through the written statement and has submitted that as

a matter of fact, the Defendant Appellant denied the execution of the promissory note which is the basis of the suit. Although he had stated therein

that the financiers are in the habit of obtaining signatures on blank papers, he omitted to mention specifically that in the present case also the Plaintiff

who is Respondent in the case had obtained the signatures of the Defendant on a blank paper. This the Defendant as well as his witnesses had

specifically stated in their deposition before the court. On facts it is established from the evidence produced by the Defendant that the promissory

note was a blank paper on which the signatures of the Defendant were secured by the Plaintiff. The (sic) court did not attach any importance to the

evidence and did not rely upon it (sic) as it was of the view that this evidence was inconsistent with the plea taken in the written statement.

Therefore, in order to re move that impression, it was necessary, that the Defendant be allowed to incorporate this specific fact in the written

statement as this would go a long way in deciding the real controversy between the parties. What the Defendant wanted was to give a fuller, more

definite, detailed, and better statement. Learned Counsel has relied upon Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, .

Nrisingh Prosad Paul Vs. Steel Products Ltd., and Sukumar Chatterjee Vs. Kiran Chandra Mitter, .

Shri C.M. Gupta, learned Counsel for the Respondent has controverted the proposition enunciated by Shri Sehgal. He has advanced the

contention that this is no stage when the amendment can be allowed, the effect of which will be the re-trial of the whole case and to put the clock

back. He has further submitted that if the Defendant was serious about what he says now he should have made this application at the earliest

possible stage before the trial court. As he has failed to do it, and has been guilty of serious laches, therefore, his application cannot be entertained.

Also a valuable right has accrued to the Respondent by (sic)apse of time. The trial court has not failed to discharge its obligation by deciding the

real questions in controversy between the parties. These questions relate to the matters praised in the pleadings of the parties and in view of this

Order 6 Rule 17 CPC cannot be attracted to the facts of the present case. What the Defendant Appellant seeks is to disturb his stand already

taken in the case by destroying his original defence. In support of the various contentions raised Reliance is placed on Chandu Modi and Others

Vs. State of Bihar and Others, : AIR 1940 367 (Oudh) and AIR 1949 Ajmer 19.

In order to dispose of these respective arguments it will be advantageous to give a new facts of the case. The suit was instituted by the Plaintiff-

Respondent for the recovery of Rs. 16,500/- on the basis of the promissory note on August 14, 1974. The written statement was filed on 7-10-

1974 and the issues in the case were raised on 7-11-1974. thereafter the parties adduced their respective evidence and the case was concluded

on (sic)-9-1976, when a decree was passed against the Defendant Appellant by the trial court. The memo of appeal was presented before his

court on 24-9-1976 and the application (sic) amendment was moved on 29-4-1977, i.e. early seven months after the appeal was served. These

dates would guide us in determining whether the present application seeking amendment of the written statement has been made bona fide. In my

opinion, after taking into consideration the facts given above, it is noticed that the application is wholly belated. If the Defendant wanted to give a

better and detailed written statement, what prevented him from doing so till the conclusion of the suit in the court below? Even thereafter when the

appeal was preferred against the judgment of the trial court, the Appellant waited for seven months and did not make any such application. If the

Defendant bona fide believed that he had omitted to put forth his case in the written statement in a more precise manner, then he should have made

this application before this Court immediately along with the memorandum of appeal. It appears that on obtaining a better legal advice he has hit

upon a plan to make this application with a view to see that what his witnesses stated in the court below fitted in with his written statement. In my

opinion, if the Defendant is allowed to amend the written statement at this stage (the court can undoubtedly order amendment at any stage including

appellate stage) the result of that would be that the Defendant will get a chance to introduce a new matter in his defence and this would be

inconsistent with the original stand taken by him. Order 6 Rule 17 CPC consists of two parts; the first part deals with the power of the court to

order amendment of the pleadings, and the second part enjoins upon the court to allow the amendment only when it appears to the court that it is

necessary for the purpose of determining the real question in controversy between the parties. It has got no application to those questions which a

party never intended to disclose or did not disclose in his pleadings and which are totally inconsistent with those on which the pleadings are based.

In AIR 1949 Ajmer 19 , the question of construction of expression ""questions in controversy between the parties"" came up for consideration

before the CJ of that court. It was held in that case that questions of controversy between the parties are such questions which are in controversy

between the parties at the time they join issue, that is, when the Defendant puts in his written statement. They do not include any questions which

the parties neither wish nor intend to dispute till that stage, but which at a later stage in the proceedings parties may wish to raise because they have

changed their mind or because something has happened after the filing of the written statement which makes it profitable or necessary for them to

put forward. The same observations have been made in Nrisingh Prosad Paul Vs. Steel Products Ltd., . In AIR 1976 Ori 216, the learned Judge

deciding the civil revision petition observed that where the amendment would alter the very foundation of the claim and will introduce a distinct and

separate cause of action necessitating a fresh trial from the beginning then the amendment should not be allowed. If facts were available to a party

when the suit was filed but he did not mention these facts, in the pleadings, it will be introducing a new case. The authorities cited by the learned

Counsel for the Appellant do not speak of any amendment allowed at the appellate stage. Therefore, the authorities cited by him are

distinguishable. Therefore, I am of the view that as the proposed amendment will have the effect of setting up of a new case of fraud, it will mean

introduction of an altogether new plea, and will deprive the Plaintiff Respondent of a valuable right that has accrued to him by lapse of time. The

effect of amendment will not be to decide the real questions in controversy between the parties at the time the pleadings were before the court. It

will necessitate fresh trial of the suit which cannot be allowed at this stage. The application is clearly belated and, therefore, does not merit any

favorable consideration.

For the foregoing reasons, therefore, the application is hereby rejected. Let the main appeal come up for hearing on a date to be fixed by the

Deputy Registrar.