Virupaksha and Others vs Shankarappa

B. Manohar, J.—Petitioners are the defendants in O.S. No. 414/2010 on the file of the Principal Civil Judge, Chikmagalur. Being aggrieved by the order dated 9.1.2014 rejecting I.A. No. 8 seeking for amendment of the written statement, they have filed this writ petition.

Respondent herein filed the suit seeking for declaration declaring that he is the lawful owner of the suit schedule property and mandatory injunction for removal of barbed wire fence and consequential relief of permanent injunction restraining the defendants, their agents from interfering with the peaceful possession and enjoyment of the suit schedule property. Defendant No. 4 filed written statement. The other defendants adopted the written statement filed by defendant No. 4. After framing of issues, defendants filed I.A. No. 8 under Order 6 Rule 17 of CPC seeking for amendment of written statement contending that they could not aver in the written statement regarding the agreement dated 8.8.1981 executed by the plaintiff and his wife, Smt. Gangamma and receipt of the amount on 25.4.2001. The said defence is very much necessary. Plaintiff objected for the said amendment of written statement contending that the written statement was filed in the year 2011. After lapse of two years, I.A. No. 8 filed seeking for amendment of written statement is not permissible. The Trial court after considering the matter in detail by its order impugned rejected the said application seeking for amendment of written statement. Being aggrieved by the order impugned, the present writ petition has been filed.

Sri N.R. Ravikumar, learned Advocate appearing for the petitioners contended that the order passed by the Trial Court is contrary to law. The document referred in the application was not available as on the date of filing of the written statement. Subsequently, they traced the agreement of the year 1981 and the receipt for having received a sum of Rs. 10,000/- by the plaintiff and his wife. The said document is necessary to settle the dispute between the parties. Learned counsel also relied on the judgment of the Supreme Court reported in Sushil Kumar Jain Vs. Manoj Kumar and Another, contending that the Court would be more liberal in allowing the application for amendment of written statement than that of plaint as the prejudice would be far less than former than latter. He also relied upon the judgment reported in Andhra Bank Vs. ABN Amro Bank N.V. and Others, holding that the application for amendment of written statement cannot be rejected on the ground of delay or on merit before commencement of trial. Hence, sought for allowing the writ petition.

Though the contesting respondent was served with notice, he remained unrepresented.

I have carefully considered the arguments addressed by the learned counsel appearing for the petitioners, perused the order impugned and other relevant records.

The petitioners are defendants in the suit filed by the respondent herein. They filed written statement to the suit and also filed I.A. No. 8 seeking for amendment of written statement before commencement of trial inter alia contending that the plaintiff and his wife executed an agreement dated 8.8.1981 and received a sum of Rs. 10,000/- on 25.4.2001 by issuing a receipt. The said fact was not pleaded in the written statement since the said document was not available on the date of filing the written statement. Subsequently, they traced the document and filed I.A. No. 8 for amendment of written statement. The said document is necessary to settle the dispute between the parties. The Trial Court rejected I.A. No. 8 on the ground that the document though was not available as on the date of filing the written statement, no averment is made in this regard. Hence, it is not open to seek for amendment of written statement. The Trial Court has lost sight of the various judgments of the Supreme Court, wherein the Supreme Court has clearly held that with regard to amendment of written statement, the Court should adopt far more liberal approach than adopted for allowing the amendment of plaint. Though the amendment cannot be claimed as a matter of right, the Court has power to permit the amendment of written statement, if the Court comes to the conclusion that such amendment is necessary to determine the real question and in spite of due diligence, the defendant could not raise earlier.

In the instant case, the amendment sought will not change the cause of action and nature of the suit. The petitioners being the defendants wanted to take one more defence, which is already taken in the written statement. The amendment of written statement will not affect the interest of the plaintiff. In view of the averments made in the written statement, the defendants can lead evidence. In the affidavit, they have clearly mentioned that in view of shifting of house, they could not get the said document. Subsequently, they traced the document. There is bona fide in the contentions of the learned Advocate appearing for the petitioners. Hence, I.A. No. 8 filed by the petitioners is required to be allowed and the order dated 9.1.2014 passed by the Trial Court cannot be sustained. Accordingly, I pass the following:

ORDER

The writ petition is allowed.

The order dated 9.1.2014 made on I.A. No. 8 in O.S. No. 414/2010 by the Principal Civil Judge, Chikmagalur is set aside. The Trial Court is directed to permit the defendants to amend the written statement by allowing I.A. No. 8. Parties to bear their own cost.