Jawarmal Ramkaran vs Pari Keshavlal Jamnadas

What is important? Means or the ends? Adherence to the rules of procedure and insistence on strict compliance with the requirements of procedural law may result into failure of justice, which is the ultimate object to be achieved in all cases. Hence the questions:

What is the object of procedure? Why and when amendment in pleadings should be granted and when the same may be refused?

These questions may be examined and answered by keeping in view the principle that rules of procedure are only means to achieve the end - which is justice.

The respondent-plaintiff filed suit for recovery of an amount of Rs.3,37,506.74 ps. and interest accrued thereon. According to the plaintiff the amount due was on account of goods sold and delivered and the defendant has not paid the price thereof. The defendant filed written statement and denied the contract of sale between the parties and resisted the suit on facts as well as on law points. After framing the issues, the court proceeded to record evidence. Oral evidence of the plaintiff''s side was over. First witness (one of the partners of the defendant firm) was in box. At that stage since the learned counsel for the plaintiff objected to certain questions being put with regard to the contention of the defendant that the plaintiff was commission agent of Shree Raj Cotton Company of Raichur, defendant submitted an application for amendment in the written statement. The proposed amendment reads as follows:

"The defendant submits that it has never entered into contract of sale of the suit goods. But the said goods were sold to it by one Shree Raj Cotton Company, Loharwadi, M.G. Road, Raichur and the plaintiff firm was its commission agent. The plaintiff has supplied the suit goods to the defendant as commission agent. The defendant has made payment of the suit goods to the plaintiff for and on behalf of Shree Raj Cotton Company by virtue of its letter dated 08-07-1981. Thus it is clear that plaintiff has no cause of action against the defendant."

The plaintiff objected to the amendment being granted. After hearing the parties, the trial court rejected the application for amendment mainly on the ground that the application was submitted at a belated stage and the plaintiff had gained certain advantage on account of the suit having proceeded on the basis of the pleadings as they were. Now at this stage if the amendment as proposed is allowed the plaintiff would lose the advantage gained by it. The trial court also held that it was incumbent upon the defendant to raise specific plea with regard to the plaintiff being commission agent of Shree Raj Cotton Company. Unless such specific plea is taken in the written statement at the initial stage, the defendant cannot be permitted to raise such plea later on. Mainly on the aforesaid grounds, the trial court has rejected the application for amendment in the written statement and hence this revision application by the original defendant-firm.

As regards the objects of pleadings and amendment of pleadings there appears to be some misconception and confusion in the minds of certain judicial officers presiding over the lower courts. Therefore it is necessary to clear the same. Law regarding pleadings forms part of procedural law. Why there is law regarding procedure of trial of suit? Procedure is something designed to facilitate justice and further its ends. Procedural law is not penal enactment. It is not a thing designed to trip people up. Compliance with the procedural law is not an end in itself. The ultimate object is to do justice, i.e. adjudication of the issues involved in a matter in just, fair and reasonable manner. Therefore, too much insistence on compliance with the procedural requirements at the cost of justice is never desirable. As far as possible such insistence is required to be discouraged and should be avoided. Here reference may be made to the following observations made by the Supreme Court.

"Now a code of procedure must be regarded as such. It is ''procedure'', something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to ''both'' sides) lest the very means designed for the furtherance of justice be used to frustrate it". Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, .

That rules of procedure are not an end, they are only means to achieve ultimate object, i.e. justice. Too technical construction of procedural laws is to be avoided because it may happen that such an approach may frustrate the ends of justice rather than furthering the same.

Pleading means plaint or written statement (Order VI Rule 1 C.P.C.). The object of pleading is to see that each side may become aware of the questions involved in the matter. The object of pleading is also to enable the parties to disclose their respective case so that the other side knows what it is required to meet with and is not taken by surprise. If there is any ambiguity in the pleadings or a vital omission, the difficulty can be cured so that the case of the party becomes more intelligible and the other side can meet with the same. Therefore, as observed by the Supreme Court "the power to grant amendment of pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations" Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, . In the aforesaid background the law regarding amendment of pleadings may be seen.

Order VI Rule 16 of C.P. Code deals with striking of pleadings which may be called in voluntary amendment of pleadings, i.e. amendment of pleadings which may be necessitated on account of orders passed by the Court. The provision regarding amendment of one''s own pleadings is contained in Order VI Rule 17, which reads as follows:

"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."

The aforesaid provision relating to amendment of one''s own pleading contains the following principles:

(a) It is within the discretion of the court to allow either party to alter or amend his pleadings.

(b) This may be done by the Court in such manner and on such terms as may be just.

(c) The discretion is to be exercised by the Court in such a way that it does not cause injustice to either side. That is why the Court is empowered to indicate the manner of the amendment in the pleadings and is also empowered to impose terms.

(d) All such amendments should be ''necessary'' for the purpose of determining the real questions in controversy between the parties.

In above view of the matter whenever there is application for amendment of the pleadings, (i.e. either plaint or written statement) it is required to be asked:- ''Is the amendment necessary for the purpose of determining the real questions in controversy between the parties?" If yes, which is the manner and what are the terms on which this object can be achieved in just, fair and reasonable manner? The underlying principles regarding grant or refusal of amendment of plaint or written statement are the same. However, in practice certain different considerations may arise as far as amendment of written statement is concerned. On principle, as a general rules, courts are more liberal in allowing amendment of written statement than in the case of amendment of plaint. This should be so because questions of prejudice are less likely to operate with vigour in the case of amendment of written statement than in the case of amendment of plaint. When a new case is sought to be introduced by the plaintiff in the plaint it may cause prejudice to the defendant and several questions including the question of limitation may arise. This is not likely to be the case in case of amendment of written statement.

In this connection the principles laid down by the Supreme Court may be seen. In the case of Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, the Supreme Court has observed as follows (para 5):

"Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side."

In the case of Ganesh Trading Co. Vs. Moji Ram, , the Supreme Court, after referring to the rules of pleadings in Order VI of Civil Procedure Code, has inter alia observed (para 4):

"........that provisions for the amendment of pleadings, are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued."

In the case of Ganesh Trading Co., (supra) the plaintiff was refused amendment in the plaint on the ground that the plaintiff was trying to lay new claim on the basis of new facts. In para 5 of the judgment the Supreme Court inter alia observed that mere failure to set out even an essential fact does not, by itself, constitute a new cause of action. The Supreme Court further observed that only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings. From the principles laid down by the Supreme Court in the aforesaid decisions it becomes evident that for achieving ends of justice even infraction of the rules of procedural law may be ignored. The ultimate end is not to seek compliance of procedural rules. But the object of the procedural rules is to see that justice is done to the parties.

Having cleared doubts as regards the object of pleadings and the principles laid down by the Supreme Court regarding amendment of pleadings it may be seen as to when the amendment in the pleadings may be refused. While refusing amendment the same question should be asked by the Court.

(i) Is the amendment not necessary for the purpose of determining the real question in controversy between the parties, i.e. is the amendment irrelevant, frivolous and/or vexatious? If yes, it may not be granted. But Court may be slow in labelling any amendment in pleading, irrelevant, frivolous and/or vexatious.

(ii) Is the prayer for amendment in pleading not bona fide? If the prayer for amendment is for ulterior motive and not necessary as indicated hereinabove, the amendment may be refused. Whether the application for amendment is bona fide or not may be decided by putting the question: "Is the party seeking amendment trying to abuse the process of law and thereby delay and defeat the ends of justice? Lack of good faith or mala fides that may be attributed to a party should not be easily inferred. If the amendment of pleading is shown to be necessary, then ordinarily the mala fides may not be attributed to a party.

(iii) Simply because the other side may be put to some inconvenience or may be required to meet with new pleas, it is not a ground to refuse the amendment.

(iv) If the lapse of time has barred the remedy, then also the amendment in the pleadings may not be granted.

In the instant case, amendment in the written statement as prayed for is refused mainly on the ground that the application was submitted at a belated stage and the plaintiff had gained certain advantage on account of the suit having proceeded on the basis of the pleadings as it existed then. The trial court observed that if the amendment in the written statement as proposed is allowed, the plaintiff would lose advantage gained by it. The trial court also held that it was incumbent upon the defendant to raise specific plea with regard to the plaintiff being commission agent of Shree Raj Cotton Company, and unless such specific plea was taken by the defendant in the written statement at the initial stage the defendant cannot be permitted to raise such plea later on. Thus strict compliance with the rules of pleadings is insisted, while the law laid down by Supreme Court is that a party cannot be refused just relief even if there may be infraction of rules of procedure Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, . Again it is not found by trial that the amendment is not necessary for the purpose of determining the real question in controversy between the parties. The trial court does not say that application for amendment in written statement is not bona fide. Simply because the defendant raised the plea regarding plaintiff being commission agent of Shree Raj Cotton Company and further plea that the plaintiff had supplied the suit-goods to the defendant was commission agent of Shree Raj Cotton Company, it cannot be said that the defendant was raising a new plea so as to abuse the process of the court. In fact having regard to the totality of the pleadings and the documentary evidence on record and the specific plea taken by the defendant that it had no privity of contract with the plaintiff, the defendant was trying to make it explicit which was already there in the written statement and on the record of the case by necessary implication. Moreover the relevant documents were already produced on record, certain questions were also put to the plaintiff''s witnesses on his point. Therefore it was not correct to say that the defendant was trying to put up a totally new case and the plaintiff was being taken by surprise.

Even assuming for a moment that a new plea was being raised in the written statement then also a party cannot be denied to raise the same only on the ground that the other side would lose certain advantage if the amendment is allowed. No one can claim a right a much less a vested right in inflicting injustice on other side. Nor any one can insist that on account of the procedural technicality he should be allowed to gain some advantage unjustly or unlawfully. If any party is allowed to gain unjust advantage on account of procedural niceties it would defeat the very purpose of procedural law. The underlying object of the rules of pleadings and law regarding amendment of pleadings would be frustrated. By refusing amendment the trial court has in substance acted illegally inasmuch as by doing so an unjust gain alleged to have accrued in favour of the plaintiff is sought to be legalised. To legalise and to put the imprimatur of the court on an unjust gain is certainly not permitted and such action would certainly be in excess of jurisdiction and would call for interference by the High Court in exercise of its revisional jurisdiction under S. 115 of the Civil Procedure Code.

While considering the question of amendment in the written statement by which the party seeking amendment is trying to rectify an error the only question that should be put is: "Is the amendment likely to cause injury to the other side?" If yes, can it not be compensated by awarding costs? Moreover, if the other side is likely to be put to inconvenience, on account of having closed its evidence, it may further be asked, "Is it not possible to remove this inconvenience by permitting the other side to recall the witnesses already examined? Unfortunately, the trial court has not considered these questions, which are required to be posed and answered in view of the settled legal position enunciated hereinabove. In such a situation, all that the other side can claim is that on account of the amendment being granted, whatever inconvenience and difficulties may be caused to it should be remedied either by payment of cost and or by allowing it to lead further evidence.

In the instant case on account of the amendment being granted in the written statement if the plaintiff feels that it is required to lead further evidence or it is required to recall any witness already examined, an opportunity should be granted to the plaintiff in this behalf. But simply because the evidence of the plaintiff''s side is over, amendment in the written statement sought for ought not to have been rejected. In such cases, the question may be examined from another angle also. Would it would it not have been possible for the defendant to raise this plea initially at the time of filing of written statement? If yes, then there should be no reason why the defendants should be precluded from raising the plea by way of amendment in the written statement much more so when the necessary documents disclosing this plea are already on record. In such cases the only care which is required to be taken is that the other side should not be put to difficulty and inconvenience, so as to make it impossible for it to remedy the situation. If the other side is put to inconvenience and is likely to undergo some hardship then the other side should be compensated by awarding costs.

The learned counsel for the opponent plaintiff contended that this being a revision application under S. 115 of the CPC and the scope of the proceedings being limited, this court should not exercise its power and should not interfere with the order passed by the trial court. The contention cannot be accepted for the simple reason that the trial court has not followed the law laid down by the Supreme Court. Moreover, on account of the order passed by the trial court refusing amendment in the written statement, injustice is likely to be perpetrated. It may even so happen that at the appellate stage the Court may find it necessary to permit the defendant to lead additional evidence or to remand the matter to the trial court for allowing the defendant to lead further evidence on the point sought to be raised by way of amendment in the written statement. In above view of the matter the provisions of S. 115(1)(c) are attracted, inasmuch as the trial court has acted in exercise of its jurisdiction illegally and/or with material irregularity. Moreover, if the order is allowed to stand it would occasion failure of justice and/or at any rate it would cause irreparable injury to the petitioner-defendant against whom the order hag been passed. Thus even in the limited scope of the proceedings under S. 115 of the Civil Procedure Code, it has become necessary for this Court to see that the order passed in illegal exercise of jurisdiction and which is likely to cause failure of justice and/or irreparable injury to the petitioner-defendant be interfered with and be quashed and set aside.

On account of the amendment in the written statement as prayed for being granted, if the plaintiff wishes to recall any of the witnesses already examined and wishes to examine further witnesses it should be open to the plaintiff to do so. It would also be open to the plaintiff to produce additional documentary evidence if any. However, this option of filing of additional documentary evidence and recalling of witnesses already examined or to examine further witnesses should be exercised by the plaintiff within specified time limit, that may be fixed by the trial Court. If the plaintiff exercises the aforesaid option, the evidence of the defendants'' side should commence thereafter.

Moreover, having regard to the facts and circumstances of the case it appears that some inconvenience and hardship would certainly be caused to the plaintiff on account of the amendment in the written statement being granted at this stage. Therefore, in the facts and circumstances of the case it would be proper if the defendant is put to terms. Hence it is directed that the defendant should pay an amount of Rs.1750/- to the plaintiff as cost. Payment of the cost shall be condition precedent. The defendant should deposit the amount of Rs.1750/ - in the trial Court within a period of fifteen days from the date of receipt of the writ of this Court by the trial Court.

In the result the order passed by the trial Court below Exh. 130 in Summary Suit No. 4220 of 1983 of City Civil Court rejecting application for amendment in the written statement is quashed and set aside. Amendment as prayed for in application is allowed. The defendant shall carry out the amendment in the written statement after depositing in trial Court the amount of Rs.1750/- to be paid to the plaintiff as and by way of cost. The amount shall be deposited in trial Court by the defendant within a period of 15 days from the date of receipt of the writ of this Court by the trial Court. The trial Court shall proceed further with the suit in accordance with law and in accordance with the observations made and the directions given in the judgment. Rule made absolute accordingly with no order as to costs.

Order accordingly.