Shri Charanjit Lal vs Shri Ramesh Kumar

Rajesh Bindal, J.—The defendant is before this court impugning the order dated 7.1.2011, passed by the learned court below, whereby in an application Filed by the respondent-plaintiff, the petitioner-defendant has been directed to delete fresh pleas taken in the amended written statement filed to the amended plaint. Briefly, the facts of the case are that the respondent-plaintiff filed a suit for partition with respect to the property detailed in the plaint, to which written statement was filed by the petitioner. The suit filed by the respondent-plaintiff was decreed by the trial court on 17.2.2006. Against the judgment and decree, the petitioner filed appeal before the learned lower appellate court. In the appeal, the respondent-plaintiff filed application seeking amendment of the plaint and also for permission to adduce additional evidence. The learned court below, while accepting the prayer made by the respondent-plaintiff, permitted him to amend the plaint and consequently permitted the petitioner to amend the written statement. The matter was remitted back to the learned trial court vide order dated 19.5.2009. It was thereafter that the respondent-plaintiff filed amended plaint before the trial court incorporating the permitted amendments to which amended written statement was filed by the petitioner raising certain additional pleas, to which the respondent-plaintiff raised objection. The learned trial court having directed for deletion of the additional pleas raised by the petitioner in the amended written statement, the order is impugned before this court.

Learned counsel for the petitioner, placing reliance upon Naresh Kumar v. Om Parkash,1 (1990)97 P.L.R. 670; Jia Lal and Another Vs. Met. Savitri Devi and Another, ; Usha Balashaheb Swami and others v. Kiran Appaso Swami and others,4 2007(2) R.C.R. (Civil) 830; Sheo Ram v. Madhu Ram and others,5 2009(3) R.C.R. (Civil) 646 and Revajeetu Builders & Developers v. Narayanaswamy & Sons and others,6 2010(1) R.C.R. (Civil) 27, submitted that the law pertaining to amendment of written statement is quite liberal. The additional issues sought to be raised are necessary for proper adjudication of the matter. The same will not change the nature of the suit in any manner. Once the plaintiff had been permitted to amend the plaint, the defendant had the right to file amended written statement taking even additional pleas. All what the petitioner-defendant had stated in the amended written statement by way of additional pleas was that certain preliminary objections are raised regarding maintainability of the suit. The same did not prejudice the respondent-plaintiff in any manner.

On the other hand, learned counsel for the respondent plaintiff, while placing reliance upon a judgment of Hon''ble the Supreme Court in Gurdial Singh and others v. Raj Kumar Aneja and others,7 (2002)130 P.L.R. 835 (S.C.), submitted that when a plaint is amended, as a consequence thereof the defendant is permitted to only file amended written statement, which is consequential. He cannot be permitted to raise additional pleas as the same would amount to permitting him to amend the written statement. He further submitted that in case the petitioner defendant is permitted to place on record the amended written statement, as was filed by him taking additional pleas, the same would amount to reviewing of the order passed by the District Judge as an application seeking to amend the written statement taking the same very pleas was filed when the matter was pending before the learned lower appellate court, but the same was rejected and the order attained finality. He further relied upon Raees Ahmed v. Shrigopal Prakash and others,8 2003(1) CCC 666 (Raj.) and Improvement Trust. Patiala through its Administrator/Chairman v. Jaswinder Kaur and others,9 (2010)160 P.L.R. 463.

Heard learned counsel for the parties and perused the paper book.

The issue under consideration in the present petition is as to whether a defendant is permitted to file amended written statement taking additional pleas as a consequence to the amendment of plaint or the amended written statement is to confine to the additions/changes made in the amended plaint only?

The issue has been gone into by Hon''ble the Supreme Court in Gurdial Singh''s case (supra), wherein it has been opined that a written statement to the amended plaint has to be confined to consequential amendments by way of an answer to the pleas per-mitted to be added in the pleadings to the opposite party by way of amendment. New pleas cannot be permitted to be added in the garb of consequential amendment. Relevant paragraph 18 thereof is extracted below:

When one of parties has been permitted to amend his pleadings, as opportunity has to be given to the opposite party to amend his pleading. The opposite party shall also have to make an application under Order 6 Rule 17 of the CPC which, of course, would ordinarily and liberally be allowed. Such amendments are known as a consequential amendments. The phrase ''consequential amendment'' finds mention in the decision of this court in Bikram Singh and Others Vs. Ram Baboo and Others, . The expression is judicially recognized. While granting leave to amend a pleading by way of consequential amendment the Court shall see that the plea sought to be introduced is by way of an answer to the plea previously permitted to be incorporated by way of amendment by the opposite party. A new plea cannot be permitted to be added in the garb of a consequential amendment, though it can be applied by way of an independent or primary amendment.

The issue was further gone into by this court in Improvement Trust, Patiala''s case (supra), wherein it has been opined that in reply to the amended plaint, new facts cannot be introduced under the garb of amendment and reply should be confined to paragraph of the plaint allowed to be amended.

In similar lines is the judgment of Rajasthan High Court in Races Ahmed''s case (supra).

As far as the judgments relied upon by learned counsel for the petitioner are concerned, the issue under consideration in Baldev Singh''s case (supra), Usha Balashaheb Swami and others'' case (supra) and Revajeetu Builders & Developers'' case (supra) was regarding amendment of the written statement, where a prayer was made seeking permission thereof. The aforesaid judgments do not deal with the issue regarding filing of amended written statement to the amended plaint, hence distinguishable.

As far as judgments of this court in Naresh Kumar''s case (supra) and Sheo Ram''s case (supra) are concerned, the same have only to be noticed and ignored for the reason that subsequently Hon''ble the Supreme Court in Gurdial Singh''s case (supra) has specifically opined that by tiling amended written statement to the amended plaint, new pleas cannot be permitted to be taken. In Jia Lal''s case (supra), this court has merely opined that in case the plaintiff has been allowed to amend the plaint, the defendant has corresponding right to file the amended written statement to the amended plaint.

From the enunciation of law, it is clear that in case the plaintiff is permitted to amend the plaint, the defendant will have corresponding right to file consequential amended written statement replying to the changes made in the amended plaint. The change in the amended written statement will only confine to that. New pleas cannot be permitted to be raised as the same will fall on a different footing, namely, amendment of the written statement for which a different procedure may have to be followed.

Besides the aforesaid legal position pertaining to the filing of amended written statement to the amended plaint, another fact, which is important in the case in hand, is that when the matter in dispute was pending before the learned lower appellate court in the appeal filed by the petitioner, an application seeking permission to amend the written statement was filed seeking to incorporate new pleas in the preliminary objections, which are same which have been incorporated now additionally in the amended written statement and the aforesaid application was dismissed and the order attained finality.

For the reasons mentioned above, in my opinion, the impugned order passed by the court below does not call for any interference by this court. Accordingly, the revision petition is dismissed.

Before parting with the order, this court would like to reiterate what was stated by Hon''ble the Supreme Court in Gurdial Singh''s case (supra) pertaining to the manner in which the amendments made are to be shown in the pleadings. These are to be highlighted so as to make a distinction between un-amended and amended portions. Paragraph 17 thereof is extracted below:

Thus, once a prayer for amendment is allowed the original pleading should incorporate the changes in a different ink or an amended pleading may be filed wherein with the use of a highlighter or by underlying in red the changes made may be distinctly shown. The amendments will be incorporated in the pleading by the party with the leave of the Court and within the time limited for that purpose or else within fourteen days as provided by Order 6 Rule 18 of the CPC. The Court or an officer authorized by the Court in this behalf, may compare the original and the amended pleading in the light of the contents of the amendment application and the order of the Court permitting the same and certify whether the amended pleading conforms to the order of the court permitting the amendment. Such practice accords with the provisions of CPC and also preserves the sanctity or record of the Court. It is also conducive to the ends of justice in as much as by a bare look at the amended pleading the Court would be able to appreciate the shift in stand, if any, between the original pleading and the amended pleading. These advantages are in addition to convenience and achieving maintenance of discipline by the parties before the court. Amendments and consequential amendments, allowed by the Court and incorporated in the original pleadings, would enable only one set of pleadings being available on record and that would avoid confusion and delay at the trial. Most of the High Courts in the country follow this practice, if necessary by making provisions in the rules framed by the High Court for governing the subordinate Courts and their Original Side, if there be one. In fact in the State of Punjab and Haryana and Union Territory of Chandigarh, there is a local amendment whereby the text of Rule 17 in Order 6 of the CPC has been renumbered as sub rule (1) and the following sub-rule (2) added:-

(2) Every application for amendment shall be in writing and shall state the specific amendments which are sought to be made indicating the words or paragraphs to be added, omitted or substituted in the original pleadings.

The above said rule appears to have been completely overlooked while moving the application for amendment. It is expected that the Courts in Punjab, Haryana and Chandigarh would follow the rule in letter and spirit.

[Emphasis supplied]

It is generally seen that the aforesaid Rule and the directions of Hon''ble the Supreme Court are not being followed diligently and the amended pleadings are filed without showing any distinction about the unamended and amended portions. The learned courts below to ensure that filing of amended pleadings by the parties are strictly in terms of the directions of Hon''ble the Supreme Court in Gurdial Singh''s case (supra). The order be brought to the notice of the Registry of this court and be sent to the learned courts below for compliance.