Prem Dutt vs Krishan Dutt

Dev Darshan Sud, J.—The petitioner herein challenges the order passed by the learned Civil Judge(Senior Division), Kasauli, on an application under Order 6 Rule 17 read with Section 151 of the CPC (hereinafter referred to as `CPC'') instituted by the respondent-defendant, allowing the prayer of the respondent-defendant to amend the written statement.Before adverting to the facts of the present case, I note that Civil Suit pertains to the year 2004 and in 2012 parties are still filing pleadings and amended pleadings etc. I also find from the record that the plaintiff had also amended his pleadings and in addition instituted application under Order 8 Rule 9 and Section 151 CPC. Though the dispute seems to be petty but the parties are litigating with vigour.

Adverting to the application under Order 6 Rule 17 CPC, the defendant, wanted to incorporate in his pleadings that during the pendency of the suit, plaintiff illegally constructed chhaja and raised walls adjoining to his house, which are blocking the natural light, air etc. of his house, which require to be demolished. This application was resisted by the plaintiff primarily on the ground that a counter claim was filed by the defendant without seeking permission to amend the written statement and an application under Order 8 Rule 9 of the CPC filed by the plaintiff was rejected with a direction to the defendant to file written statement in consonance with the amended pleadings. The learned trial Court finds as a fact that the plaint was amended on two occasions, i.e. on 1.11.2006 before framing of issues and on 31.12.2010 after framing of issues when the case was listed for evidence of the defendants. It is submitted by learned counsel that while filing written statement to these amended plaints the defendant set up a counter claim but has not been permitted to do so and was directed to file written statement strictly in accordance with the pleadings made in the plaint.

The learned Court holds that since the cause pleaded accrued during the pendency of the suit, the amendment sought cannot be rejected. The case was listed for recording evidence of the defendant when the plaintiff amended his plaint on 31.12.2010, a long time after completing his evidence.

A number of submissions have been made by learned counsel appearing for the petitioner herein on the legality of the order passed by the learned Court below. Primarily, it is urged that the learned Court was wrong in not considering the delay in filing the application. A counter claim is being introduced by way of amendment in the written statement despite the fact that in the order on the application under Order 8 Rule 9 the defendant was confined to the pleadings in the plaint, and the application lacks bonafide. It is urged that the suit was filed in the year 2004, the written statement having been filed in November, 2004, at this belated stage no amendment can be granted. The amendment is based on separate cause of action which according to the plaintiff relates back to the year 1996-97 and prejudices the defence of the plaintiff.

Learned counsel relies upon the decision of the Supreme Court in South Konkan Distilleries and another vs. Prabhakar Gajanan Naik and others, (2008)14 SCC 632. The Court holds that though the Court should be liberal in granting amendment, prima facie the question of limitation should also be considered before adverting to the question of exercise of jurisdiction in allowing the amendment. The second judgment relied upon is Ramesh Chand Ardawatiya Vs. Anil Panjwani, to urge that the jurisdiction of the Civil Court is barred and that counter claim etc. should be bonafide.

The law cited is settled proposition of law. What I find is that even the plaintiff has been amending his pleadings time and again even at the stage when the defendant has to lead his evidence. I also note that merely permitting an amendment will not prove the case of the defendant which will require to be substantiated by evidence. On the question as to whether the particular facts are established, the plaintiff will be given adequate opportunity including the opportunity to prove as to whether the claim as introduced in the written statement is maintainable or not, whether it is time barred or that the claim is belated. These questions will be considered by the learned trial Court on the settled issues, amended pleadings and further on the evidence brought on record by both the parties. I, therefore, do not find any illegality in the order of the learned trial Court. This petition is disposed of accordingly with a direction issued to the learned trial Court to dispose of the case expeditiously as it has remained pending on its record for a period of more than eight years.