Parvati vs Fate Ram and Others

S.N. Phukan, C.J.—This revision petition is directed against the order dated 9.12.1994 passed by the learned Senior Sub Judge, Mandi in Civil Suit No. 100 of 1992 (CS No. 228/92). By the said order, the learned trial Court allowed the application under Order 6 Rule 17 of the CPC filed by the Defendants and allowed the amendment of the written statement. The suit is for possession and injunction. Originally, the Defendants took the defence of adverse possession. Subsequently, by the application in question, the Defendants prayed that they may be allowed to take the defence that they are the tenants. The learned trial Court was of the opinion that the Defendants should be given proper opportunity to contest the case and unless it is going to change the foundation of the pleadings made in the suit, the amendment should be allowed. According to the learned trial Court the proposed amendment if allowed would not be ''foreign'' to the subject matter of the suit. It was held following the decision of the apex Court in L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., that the proposed amendment is necessary to determine the real question in controversy between the parties. A sum of Rs. 300/- was awarded as costs.

Heard the learned Counsel for the parties.

It is well settled that amendment of the pleadings can be allowed at any stage in the interest of justice and if does not prejudice the rights of the other party and will not change the character of the suit. While considering the question of amendment of pleadings, Court need not or ought not to go into the alleged falsity of the case in the amendment nor the Court has to give its finding on the merits of the amendment without first allowing the amendment, framing issues thereon and allowing both the parties to adduce evidence and make their submissions through arguments. It may be stated that amendment of written statement stands on different footing than the plaint.

In (1994) 2 SCC 29 (SC) , it was held that amendment of the written statement cannot be considered on the same principle as an amendment to the plaint and that the pleas in the written statement may be alternative or on additional ground or to substitute the original plea. It was further held that amendment of pleadings can be made at any stage including the stage of second appeal and that the essential requisites are that the delay in making the application; the reason therefore should be given and considered; and there should be no prejudice caused to the other side.

In Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and Another, , the apex Court considered the provisions of Order 6 Rule 17 of the CPC and held that an admission made by a party may be withdrawn or may be explained away and it cannot be said that by amendment an admission of fact cannot be withdrawn. The Court also referred to earlier decision of the apex Court in Ganesh Trading Co. Vs. Moji Ram, wherein it was held that procedural law is intended to facilitate and not to obstruct the Court of substantive justice. The apex Court also held that as the trial Court granted the application for amendment after satisfying itself that in order to effectively adjudicate upon the dispute between the parties, such amendment was necessary and the High Court erred in law by interfering with the orders of the trial Court by exercising revisional jurisdiction.

The learned Counsel for the Respondents as also drawn the attention of this Court to a decision of the Punjab and Haryana High Court in Gulwant Kaur Vs. Mohinder Singh and Others, In that case, suit was for possession of a house and the original plea of the Defendant was that the property was gifted to her and that she was in possession of the house as owner. A plea was sought to be introduced by amendment that even if gift is not proved, she being in continuous possession of the property, she became absolute owner by adverse possession. This amendment was allowed by holding that the new plea sought to be added is not at all inconsistent with the original plea.

To sum up the amendment to the written statement, it cannot be considered on the same principle as amendment to the plaint. Pleas in the written statement may be alternative or on additional ground or to substitute the original plea and amendment to the pleas can be made at any stage, but it should not prejudice the right of the other side.

The learned Counsel for the Petitioner has very strenuously urged that if the proposed amendment is allowed, it will not only set up a new case but will also oust the jurisdiction of the Civil Court inasmuch if tenancy right is allowed to be taken, it has to go to the revenue Court as per the Revenue Law prevailing in the State. The learned Counsel has also placed reliance on various decisions. I may add here that the jurisdiction of the Court has to be determined on the averments made in the plaint. Even if in the written statement, tenancy right is claimed, it will only go to the Revenue Court after trial Court comes to the finding that prima facie tenancy right has been established.

Attention of this Court has been drawn to the decision of the apex Court in Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., The apex Court found on facts that by filing the application under Order 6 Rule 17 of the CPC for amendment of the written statement, the Defendants sought to introduce entirely a different new case seeking to displace the Plaintiff completely from the admission made by the Defendants in the written statement. On this fact, it was held that the application is liable to be rejected. But in the case in hand, no new case is being set up. The suit is only for recovery of possession and instead of claiming adverse possession, the Defendant-Respondents took the plea of tenancy. If this plea is allowed to be taken in the written statement, it will not in any way prejudice the case of the Plaintiff.

In Haji Mohammed Ishaq Wd. S.K. Mohammed and Others Vs. Mohamad Iqbal and Mohamed Ali and Co., the application for amendment of written statement in appeal was rejected on the ground that if such amendment is permitted, it would completely change the nature of the original defence. As stated above, it is not so in the case in hand.

The learned Counsel for the Petitioner has also placed reliance on the decision of the Judicial Commissioner, Manipur in Elangbam Mangi Singh v. Ngangbam Tombi Singh and Ors. AIR 1967 Man 28, wherein it was held that before allowing amendment, two tests have to be applied, namely, the amendment must be necessary for the purpose of adjudication of the real question in controversy between the parties; secondly, it should not work injustice to the other side. The learned trial Court has held that such amendment is necessary to decide the real controversy between the parties and I have already held that such amendment will not prejudice the case of the Plaintiff. Therefore, this ratio is not applicable to the case in hand.

The next decision on which reliance has been placed is in Jagan Nath (Deceased) through Lrs. Vs. Chander Bhan and Others, This was a suit under Rent Control Act and during the pendency of the appeal, the tenant filed an application under Order 6 Rule 17 of the CPC seeking permission to amend the written statement and it was contended that the landlord filed an Eviction Petition in respect of the same premises against the Appellant and his two sons and that property was taken on rent by M/s Bindra Tent House and, therefore, the petition for eviction was not maintainable. This application was rejected on the ground that in the written statement it was admitted that the Appellant was tenant and, therefore, he could not be permitted to withdraw the said admission. This decision has been cited only to bring home the point that in the present suit for possession, the Defendants wanted to protect their right of possession by setting up adverse possession, but subsequently by the proposed amendment they wanted to take the plea of tenancy. As -this is a suit for possession oven if the defence is changed it will not adversely affect the right of the Plaintiff. In Fact, the Defendants can always raise alternative plea in the written statement.

In Ram Sarup v. Bhima and Anr. 1978 P.L.J. 381, the Court rejected the application under Order 6 Rule 17 of the Code of Civil Procedure, as by the proposed amendment of the written statement, the intention was to introduce contradictory plea and also oust the jurisdiction of the Civil Court. It may be stated that in the case in hand, contradictory plea is not sought to be introduced, but the Defendants want to change the defence only. That apart, the jurisdiction of the Civil Court cannot be ousted as stated above. Accordingly, this decision is not helpful to the present Petitioner.

In Kohinoor Hosiery Mills and Anr. v. New Bank of India and Ors. 1993 (2) PLR 617, it was held that the Court cannot by way of amendment allow the Defendants to substitute one distinct cause of action for the other. In the case in hand, there is no question of substitution a new cause of action.

In Ishar and Ors. v. Sudesh Kumar and Anr. 1972 P.L.J. 718, it was held that by way of amendment of the written statement, new and inconsistent plea cannot be allowed. This is also the settled position of law, but in the case in hand, the Defendants have resisted the claim for recovery of possession and while doing so earlier plea of adverse possession was taken, but subsequently, this plea was changed to the right of tenancy. That apart, in Arundhati Mishra''s case (supra), the apex Court has held that it is open to the parties to raise even mutually inconsistent pleas. Therefore, the above ratio laid down by the Punjab and Haryana High Court does not hold the field.

It has been stated at the Bar that the present application under Order 6 Rule 17 has been filed before framing of issues and recording of evidence. This is another factor, which will show that it will not in any way prejudice the case of the Plaintiff.

For the reasons stated above, I hold that the amendment was rightly allowed by the learned trial Court. In this connection, I may refer regarding powers of the revisional Court, as laid down by the apex Court in The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway, wherein it was held that the High Court should not interfere even if the order is right or wrong or in accordance with law or not, unless it has exercised its jurisdiction illegally or with material irregularity. From the impugned order, I do not find any illegality or material irregularity. In fact, the trial Court has held that this amendment is necessary for the proper adjudication of the dispute between the parties.

In the result, the revision petition is dismissed.

Costs on the parties.