Ramesh Chandra vs District Judge and Others

Anil Kumar, J.—Heard Sri Sudeep Seth, learned Counsel for Petitioner and Sri Puneet Chandra, learned Counsel for Respondents.

The facts in brief as stated by the learned Counsel for the Petitioner are that initially Radhy Sharan Srivastava (now deceased) filed a Suit for arrears of rent and ejectment, registered as SCC Suit No. 9 of 1996 in the Court of Judge Small Cause Court/Civil Judge (Senior Division) Unnao. On 19.2.1997 written statement has been filed by the Petitioner/tenant.

Learned Counsel for the Petitioner further submits that in the said suit an order dated 27.11.2003 (Annexure No. 3 to the writ petition) passed against the Petitioner, challenged by way of revision, registered as Revision No, 1 of 2004, allowed by the revisional Court vide order dated 25.2.2005.

Order dated 25.2.2005 passed by revisional Court was challenged by the Petitioner before this Court by filing Writ Petition No. 1507 (M/S) of 2005 in which an interim order granted in favour of the Petitioner/tenant on 23.8.2006. Subsequently by order dated 14.7.2010 writ petition allowed.

In view of the above said factual background, it is submitted by Sri Sudeep Seth, learned Counsel for the Petitioner that an application for amendment in written statement moved on 27.10.2010, registered as Paper No. 190-Ga to which Respondent Nos. 3 to 6 legal heirs of the original landlord Sri Radhey Sharan Srivastava filed their objection on 1.11.2010 registered as Paper No. 191-Ga.

By order dated 15.11.2010 opposite party No. 2 Judge Small Cause Court/Civil Judge (Senior Division) Unnao rejected Petitioner''s application for amendment in written statement. Aggrieved by the same, Revision filed registered as SCC Revision No. 15 of 2010, dismissed on 8.2.2011 by opposite party No. 1/District Judge, Unnao.

Sri Sudeep Seth, learned Counsel for the Petitioner/tenant while challenging impugned order dated 8.2.2011 (Annexure No. 1) and order dated 15.11.2010 (Annexure No. 2) passed by opposite parties No. 1 and 2 respectively submits that the said orders are illegal arbitrary in nature because it settled proposition of law that amendment in written statement may be allowed liberally and in support of his arguments he placed reliance in the case of Andhra Bank Vs. ABN Amro Bank N.V. and Others, , so orders which are under challenged liable to be set an side and the present writ petition may be allowed.

Sri Puneet Chandra, learned Counsel for the Respondents vehemently opposed the present writ petition and argued that orders passed by the Court below are perfectly valid and in accordance with law application for amendment moved in order to linger on the proceedings in the matter in question as such there is neither any infirmity or illegality in the orders passed by the Court below and the petition filed by the Petitioner liable to be dismissed.

I have heard the learned Counsel for the parties and gone through the record.

Before dealing the controversy involved in the present case, I feel it proper to have a glance to the provisions of Order 6, Rule 17 CPC quoted as under-

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.

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

From a bare perusal of Order 6, Rule 17 of the Code of Civil Procedure, it is clear that the Court is conferred with power, at any stage of the proceedings, to allow alteration and amendments of the pleadings if it is of the view that such amendments may be necessary for determining the real question in controversy between the parties.

The proviso to Order 6, Rule 17 of the Code, however, provides that no application for amendment shall be allowed after the trial has commenced unless the Court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

Hon''ble the Apex Court in the case of Ajendraprasadji N. Pandey and Anr. v. Swami Keshavprakeshdasji N. and Ors. AIR 2007 SCW 513, while dealing with the matter regarding amendment of written statement in paragraph No. 3 has held as under:

The Respondents/Plaintiffs filed application for amendment of the plaint of Special Civil Application No. 156 of 2002 and also produced further documents vide list Ex. 25. The trial Court granted amendment of the plaint and further dismissed the application of the Appellants objecting the jurisdiction of the Court. The Appellants preferred appeal to the High Court challenging the above order. The High Court admitted the appeal and finally dismissed the application for stay and directed the appeal to be placed for final hearing. On 31.01.2003, the new Acharya was appointed by the Committee constituted pursuant to the Resolution dated 15.05.2002. The Appellants preferred SLP No. 3351 of 2003 before this Court challenging the order of the High Court. This Court modified the order of the High Court and requested Chief Justice of the Gujarat High Court to ensure that hearing and disposal of the appeal takes place as expeditiously as possible as according to this Court an important question was required to be decided in the matter. The High Court dismissed the appeal from Order No. 421 of 2002. SLP No. 1538 (Civil Appeal No. 3380) was preferred by the Appellant No. 1 before this Court against the above referred judgment of the High Court. The said appeal was decided and the matter was remanded back to the High Court, inter alia, observed that:

the dispute centers around the question as to whether the removal of Ajendra Prasad Narejdra Prasad Pandey from the post of Acharya on the basis of a purported Resolution dated 11.5.2000 passed by a body calling itself as Satsang Mahasabha was valid. Intimately linked to this issue is the legality of the action taken to istall Rakeshprasadji Mahendraprasadji "##.." it is to be noted that legality of the appointment of Rakeshprasadji as Acharya was questioned. So, as noted above, the basis revolves around the question of legality of the decision taken to remove Ajendraprasadji and legality of appointment of Rakeshprasadji "##.." it is needless to note that while deciding the issue of injunction, the Courts have to consider three cumulative factors, viz. prima facie case, balance of convenience and irreparable loss. Definite findings are to be given on these aspects, on a prima facie basis.

In the case of B.K.N. Narayana Pillai Vs. P. Pillai and Another, Hon''ble the Supreme Court has held as under:

The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The Courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The Defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favour of the Plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original is was raised or defence taken, Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which can not be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement.

Hon''ble the Apex Court in the case of Andhra Bank Vs. ABN Amro Bank N.V. and Others, while dealing with the matters relating to the amendment in written statement has held that it is a well settled law that delay is no a ground for refusal of prayer of amendment in a written statement and further held that the amendment in a written statement should be considered liberally and the additional ground taken by a Defendant to be incorporated in a written statement shall be allowed.

In view of the above said facts, the principle which emerged out that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.

Such being the settled law, in the case of amendment of a written statement, the Courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case but while doing so, it should be kept in mind that no serious injustice or irreparable loss is cost to the other side on the ground that the prayer of amendment is not bona fide one.

Now applying the above said proposition of law in the instant case, I find that the orders passed by Courts below are not in accordance with settled proposition of law, so the same are liable to be set aside.

For the foregoing reasons, the writ petition is allowed. The orders dated 8.2.2011 (Annexure No. 1) passed by opposite party No. 1 in S.C. Revision No. 15 of 2010 (Ramesh Chandra v. Gagan Srivastava and Ors.) and the order dated 15.11.2010 (Annexure No. 2) passed by opposite party No. 2 in SCC Case No. 9 of 1996 (Radhey Sharan Srivastava v. Ramesh Chandra are set aside. However, keeping in view the facts and circumstances of the present case, trial Court/Judge Small Cause Court/Civil Judge (senior Division) Unnao is directed to decide the matter in question after hearing the learned Counsel for the parties in accordance with law preferably within a period of six months from the date a certified copy of this order is produced before it.