Jagdish Prasad Yadav & Another @APPELLANT@Hash Anil Kumar Sharma

Manoj K. Tiwari, J

This is defendants petition against order dated 19.12.2016 passed by learned Civil Judge (S.D) Rishikesh in Original Suit No. 42 of 2011 whereby

plaintiff’s application seeking (a) leave to amend the replica and (b) permission to file supplementary affidavit, was allowed. The said order has

been challenged by the defendants mainly on the ground that by said amendment, plaintiff has been permitted to withdraw an admission that too after

commencement of trial. Another ground on which the order impugned is challenged is that affidavit of examination-in-chief filed by plaintiff with his

application has been permitted to be taken on record, which according to the petitioners is impermissible as plaintiff cannot be permitted to fill up the

lacunae in his earlier affidavit.

Shri Siddhartha Singh, learned counsel for the petitioners submits that there was no due diligence on the part of plaintiff, therefore, his application

seeking leave to amend the replica is liable to be rejected on this ground alone. He further submits that affidavit of examination-in-chief was filed in

the month of January 2012 and cross examination was held on 08.12.2016 whereas the composite application seeking leave to amend and permission

to file additional affidavit of examination-in-chief was moved on 13.12.2016.

Learned counsel for the petitioners further submits that learned Trial Court erred in allowing the amendment application in as much as after

commencement of trial, the amendment application could not have been allowed in view of provision contained in proviso to Order 6 Rule 17 C.P.C.

Learned counsel for the respondent submits that the amendment sought is merely clarificatory as a small typing mistake which had crept in, was

sought to be rectified through amendment. According to him, in para-3 of the replica, the expression ‘Defendant No.2’ was wrongly typed in

place of ‘Defendant No.1’ which was sought to be corrected. He further submits that plaintiff’s case throughout has been that Defendant

No.1 was the licensee of plaintiff but due to mistake, only in para-3 of the replica it was stated that Defendant No. 2 is the licensee while in other

paras of the replica, there was no such mistake.

In support of his contention learned counsel for the respondent has placed reliance upon the judgment rendered by Punjab and Haryana High Court

rendered in CR No. 2991 of 2015 in which it was held that a typographical mistake in the affidavit can be corrected, however, lacunae cannot be filled

up. The relevant portion of the said judgment is quoted below:-

“The matter is not so simple. In Vediraj Naggappa Vernerkar (D) through LRs vs. Sharad Chand Prabhakar Gogate, 2009(7) JT 202, Supreme

Court has considered Order 18 Rule 17 and held as follows:-

“17. It is now well settled that the power to recall any witness under Order 18 Rule 17 Civil Procedure Code can be exercised by the Court either

on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the

lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his

examination. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the

discretion of the Trial Court to permit recall of such a witness for re-examination-in-chief with permission to the defendants to cross-examine the

witness thereafter.â€​

2 of 3 In my opinion, the conditions enumerated by the Hon’ble Supreme Court in the above judgment apply in the present case. It is not disputed

that the same witness was to give the same nature of testimony in two petitions of similar nature wherein the suggestions put to him in cross-

examination were also similar and in one case he rejected the suggestions while in other case he accepted the suggestions. There is a confusion as to

what he was intending to say. Experience and common sense indicate that sometimes this kind of inadvertent error can take place, either while the

testimony is being typed by the typist or where it may have been misheard by the typist in a crowded Court room where different proceedings are

taking place simultaneously. It may be mentioned here that this is not a case where the petitioner wants to add some fact which could have been

construed as filling up a lacuna in a case but he is saying that what he said was inadvertently and wrongly recorded. Learned counsel for the

respondents is not in a position to explain how and in what circumstances the same witness would reject suggestions in one case and accept the same

in a separate but similar case.

In the circumstances, the petition is allowed. The trial Court is directed to give one opportunity to the petitioner to re-summon the witness concerned

so that he can be cross-examined by the respondent. This would be subject to 10,000/- as costs.â€​

Learned counsel for the respondent thereafter cited another judgment dated 25.07.2017 passed by Calcutta High Court in C.O. No. 3235 of 2016

where it was held that an admission cannot be altered but it does’nt mean that human errors can also not been corrected.

I have gone through the order impugned in the writ petition. Learned Trial Court has considered the plaint allegation where it has been stated that

the suit property was given on license to Defendant No.1, therefore, the averments made in the replica that license was given in respect of suit

property to Defendant No.2, is a typographical error.

Learned Trial Court has further observed that leave to amend if granted will neither amount to withdrawal of admission nor will change nature of

the suit, therefore, the application filed by the plaintiff was allowed.

Law is settled that rules of procedure are meant to facilitate the course of justice and not to scuttle the same.

Hon’ble Supreme Court has repeatedly held that courts should adopt a liberal approach while considering an application seeking leave to

amend the pleadings, as held in the case of Baldev Singh and others vs. Manohar Singh and others reported in (2006) 6 SCC 498. Similar view has

been taken in the case of Sajjan Kumar vs. Ram Kishan reported in (2005) 13 SCC 89 andM ahila Ramkali Devi and others vs. Nandram (Dead)

Through Legal Representatives and others reported in (2015) 13 SCC 132.

This Court do not find any substance in the submission made on behalf of the petitioners that plaintiff is trying to wriggle out of his admission by

amending his replica. In his plaint as well as in other paragraphs of the replica, it has been averred that Defendant No.1 is the licensee while in para-3

of the replica, it was averred that Defendant No.2 is the licensee. Correction of this mistake does not amount to withdrawal of admission by the

plaintiff. The amendment sought is clarificatory. Moreover, grant of leave to amend has not caused any prejudice to the petitioner. In such view of the

matter, the first ground of challenge to the impugned order is unsustainable.

It is next contended on behalf of the petitioners that affidavit of examination-in-chief could not have been permitted to be taken on record by the

Trial Court. Law is clear on the point that the court can recall any witness at any stage of a suit who has been examined, in view of provision

contained in Order 18 Rule 17, Code of Civil Procedure. However, the said power cannot be invoked to permit a party to fill up lacunae in the

evidence of the witness, which has been recorded. This Court finds that affidavit of examination-in-chief, which has been accepted on record by the

Trial Court is intended to clear the ambiguity caused due to misdescription in the replica, thus, it is not a case of filling up of lacunae.

Learned counsel for the respondent has placed reliance upon one judgment dated 01.08.2014 rendered by Hon’ble Punjab & Haryana High

Court in CR No. 5011 of 2014 (Charan Kumar etc. vs. Smt. Laj Rani etc.), in support of his contention that typographical errors in the affidavit of

examination-in-chief can be corrected by filing supplementary affidavit. Para 4 and 5 of the said judgment is extracted below:-

“4. Even otherwise, the Court has enough powers to recall any witness at any stage. In the present case, cross examination of Mukesh Kumar had

not yet started. Examination-in-chief in the shape of affidavit, of course, had been made but before the cross-examination could start, typographical

errors had been noticed, which were sought to be corrected by way of supplementary affidavit. Such request was granted.

There is nothing wrong in grant of such permission to defendant Mukesh Kumar.

Learned counsel for the respondent has placed reliance upon another judgment dated 25.07.2017 rendered by Calcutta High Court in CO No. 3235

of 2016 (Nitai Das vs. Badal Das and another). Paragraphs 2, 3 and 4 of the said judgment is extracted below:-

The petition is directed against an order dated May 2, 2016 for the correction of a figure in the affidavit of evidence submitted on behalf of PW-1

by recalling PW-1. It appears that instead of saying that the defendant no.2 had no title to the suit land, it went down in the affidavit in lieu of

examination-in-chief filed by PW-1 that the defendant no.1 had no title to the suit land. It is for the correction of such mistake that the application was

filed.

It is true that any benefit conferred to some other as a result of any admission or the like cannot be altered. But the principle does not imply that

human errors cannot also be corrected. It is obvious that a reference to the defendant no.2 was intended to be made, but the defendant no.2 was

mistakenly indicated as the defendant no.1. The trial court may have done better than to waste precious judicial time in writing several pages to deny

the permission when it was only a typographical mistake which was attempted to be corrected.

CO 3235 of 2016 is allowed by setting aside the order impugned dated May 2, 2016 insofar as such order refused to grant permission for PW-1 to

be recalled for the purposes correcting the affidavit of evidence as indicated above.

In such view of the matter, there is no force in the writ petition. The same is accordingly dismissed. However, the Defendant (petitioner herein)

would be permitted to cross examine the plaintiff, in accordance with law.