@JUDGMENTTAG-ORDER
Aravind Kumar, J.@mdash1. This writ petition is directed against the order dated 18.08.2015 passed on I.A. No. 3 in O.S. No. 3204/2013 by IX Addl. City Civil and Sessions Judge, Bangalore - Annexure-A whereunder trial Court has rejected I.A. No. 3 filed by third defendant seeking amendment of written statement.
2. Respondents-1 and 2 herein have filed suit for specific performance of agreement of sale dated 23.06.2010 against defendants-1 and 2 represented by third defendant and seeking for execution of sale deed in favour of plaintiffs-1 and 2 jointly in respect of Schedule ''B'' property. Defendants-1 and 2 have filed their written statement as per Annexure-C and so also third defendant as per Annexure-C1 and all defendants have denied the averments made in the plaint. After commencement of trial, third defendant has filed an application - I.A. No. 3 under Order 6 Rule 17 CPC - Annexure-D seeking for amendment of written statement. Said application came to be opposed by plaintiffs by filing detailed statement of objections - Annexure-E and trial Court by impugned order dated 18.08.2015 - Annexure-A has dismissed the said application.
3. It is the contention of Sri Mohan Rao, learned Advocate appearing for petitioner - third defendant that petitioner is conversant with only Malayalam language and he was not aware of the contents of written statement filed earlier and only when third defendant changed his counsel by appointing a counsel conversant with Malayalam language, he became aware of certain facts of not having pleaded and as such, facts relevant for effective disposal of the case has been now pleaded in the proposed amendment of written statement and by allowing the said application no hardship would be caused to the plaintiffs. He would further elaborate his submission by contending that while considering an application for amendment of written statement, Courts should be liberal and rejection of the application in question by trial Court on the ground of delay is required to be set aside particularly when the proposed plea being relevant for disposal of the case. Hence, he seeks for allowing the writ petition by quashing the impugned order.
In support of his submissions, he has relied upon following judgments:
(1) , (2001) 8 SCC 97 ESTRALLA RUBBER VS. DASS ESTATE (P) LTD.
(2) , (2011) 12 SCC 268 STATE OF MADHYA PRADESH VS. UNION OF INDIA AND ANOTHER
(3) , (2007) 5 SCC 602 USHA BALASHAHEB SWAMI AND OTHERS VS. KIRAN APPASO SWAMI AND OTHERS
4. Per contra, Sri T.N. Vijayaraghavan, learned Advocate appearing for respondents-1 and 2 i.e., plaintiffs has supported the impugned order and has contended that third defendant is attempting to withdraw the plea put forward and substitute the same with new plea and same ought not to be allowed, as plaintiffs have acquired valuable right and as such, the proposed amendment cannot be allowed and therefore writ petition is liable to be dismissed.
In support of his submissions, he has relied upon following judgments:
(1) , AIR 1977 SC 680 (1) M/S. MODI SPINNING AND WEAVING MILLS CO. LTD., AND ANOTHER VS. M/S. LADHA RAM AND CO.,
(2) , (1998) 1 SCC 278 HEERALAL VS. KALYAN MAL AND OTHERS
(3) , (2009) 10 SCC 84 REVAJEETU BUILDERS AND DEVELOPERS VS. NARAYANASWAMY AND SONS AND OTHERS
(4) , AIR 2007 SC 806 AJENDRAPRASADJI N. PANDE AND ANR. VS. SWAMI KESHAVPRAKESHDASJI N. AND ORS.
(5) , AIR 2009 SC 1433 VIDYABAI & ORS. VS. PADMALATHA & ANR.,
(6) , ILR 2003 KAR 4814 SHIVA RAMA UPADYAYA VS. RAJA SATYANARAYANA SETTY.
5. Having heard the learned Advocates appearing for parties and on perusal of the pleadings as well as affidavit supporting the application for amendment, it would indicate that prime reason assigned by third defendant seeking for amendment of written statement is on the ground that all true facts though narrated to the then counsel engaged by third defendant, he had unfortunately not brought out these facts in the written statement already filed and on account of change of counsel, he was appraised of the true facts and had found that said pleading is not available in the written statement already filed and as such, the proposed amendment is necessary. In fact, the affidavit supporting the application - Annexure-D would indicate that third defendant has cast aspersions on the counsel who had been engaged at the first instance. Keeping this in mind, it requires to be examined as to whether proposed amendment of written statement is to be allowed or order of trial Court rejecting the application for amendment deserves to be affirmed?
6. Amendment of written statement stands entirely on a different footing than amendment of a plaint. There cannot be any dispute to the proposition that a defendant can raise not only alternate pleas but also inconsistent plea.
7. Code of Civil Procedure, 1908 came to be amended by Act 22/2002 and proviso to Order 6 Rule 17 of the Code which came to be inserted reads as under:
"17. Amendment of pleadings.-The Court xxx 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"
A bare reading of above proviso would indicate that it is couched in a mandatory form. In other words, the Court''s jurisdiction to allow such an application is taken away unless the condition present thereof is satisfied namely, the Court must come to a conclusion that in spite of due diligence, party seeking amendment could not have raised such plea before commencement of trial. Thus, an application for amendment will have to be examined in this background. That apart, it is the primary duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between parties and only if such a condition is fulfilled, amendment will have to be allowed.
8. If an application for amendment is made after commencement of trial, a primary duty is cast on the trial Court to arrive at a conclusion that in spite of due diligence, applicant could not have raised such proposed plea before commencement of trial. The object of Order 6 Rule 17 CPC is that Courts should try the case on merits that comes before it and therefore has to allow all amendments that may be necessary for determining real question in controversy between the parties, provided it does not cause injustice or prejudice to the other side. Thus, the main purpose of allowing the amendment is to minimize the litigation.
9. In the case of STATE OF MADHYA PRADESH VS. UNION OF INDIA AND ANOTHER reported in , (2011) 12 SCC 268 the Apex Court has held that either party can alter or amend the pleadings in such manner and on such terms as may be just and necessary. However, amendment of pleadings cannot be claimed as a matter of right and while deciding such applications, Court should not adopt a hypertechnical approach, but liberal approach should be the general rule, particularly in cases where other side can be compensated by costs. It has been held by the Apex Court as under:
"7. The above provision deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it must be shown that in spite of due diligence, such amendment could not have been sought earlier.
8. The purpose and object of Order 6 Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule, particularly in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations."
10. Hon''ble Apex Court in the case of ESTRALLA RUBBER VS. DASS ESTATE (P) LTD., Reported in , (2001) 8 SCC 97 has held that if the proposed amendment is to elaborate the defence already raised and to take additional plea in support of its case, it is open to the defendant to explain the same, assuming that there was some admission indirectly. It has been held by Apex Court as under:
5. We have considered the submissions made on behalf of either side. The High Court set aside the order passed by the learned District Judge stating that the proposed amendment will have the effect of displacing the plaintiff from admission made by the defendant in its petition filed under Sections 17(2) and 17(2-A) of the Act and that such admission could not be permitted to be withdrawn. We have perused the relevant records including the original application and the proposed amendment. We are not able to see any admission made by the defendant as such, which was sought to be withdrawn. By the proposed amendment the defendant wanted to say that Ala Mohan Das was a permissive occupier instead of owner. The further amendment sought was based on the entries made in the revenue records. It is not shown how the proposed amendment prejudiced the case of the plaintiff. It is also not the case of the plaintiff that any accrued right to it was tried to be taken away by the proposed amendment. The proposed amendment is to elaborate the defence and to take additional plea in support of its case. Assuming that there was some admission indirectly, it is open to the defendant to explain the same. Looking to the proposed amendment, it is clear that it is required for proper adjudication of the controversy between the parties and to avoid multiplicity of judicial proceedings. The High Court also found fault with the defendant on the ground that there was delay of three years in seeking amendment to introduce new defence. From the records, it cannot be said that any new defence was sought to be introduced. Even otherwise, it was open for the defendant to take alternate or additional defence. Merely because there was delay in making the amendment application, when no serious prejudice is shown to have been caused to the plaintiff so as to take away any accrued right, the application could not be rejected. At any rate, it cannot be said that allowing the amendment caused irretrievable prejudice to the plaintiff. Further, the plaintiff can file his reply to the amended written statement and fight the case on merits. The impugned order passed by the High Court exercising jurisdiction under Article 227 of the Constitution to set aside the order passed by the learned District Judge in revision under Section 115-A of CPC allowing the amendment application filed by the defendant, is patently erroneous and unsustainable. In the impugned order the High Court observed that the order of the learned District Judge was apparently wrong but in our view it is otherwise."
11. However, if the amendment were to introduce entirely different case or a new case and displace the plaintiff completely from admissions made by defendants in the written statement, then such application will have to be necessarily disallowed or rejected as held by Apex Court in the case of M/S. MODI SPINNING AND WEAVING MILLS CO. LTD., AND ANOTHER VS. M/S. LADHA RAM AND CO., reported in , AIR 1977 SC 680.
12. The factors which requires to be taken into consideration while dealing with application for amendment has been explained illustratively by the Apex Court in the case of REVAJEETU BUILDERS AND DEVELOPERS NARAYANASWAMY AND SONS AND OTHERS reported in , (2009) 10 SCC 84 whereunder it has been that following basic principles ought to be taken into consideration while allowing or rejecting the application for amendment namely, it has to be examined as to:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and
(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
If the amendment sought for would cause serious prejudice to plaintiff more so, when proposed amendment seeks to introduce a new case or totally inconsistent, then such amendment would not be allowed and in case of such prayer for amendment falling within the ambit of proviso to Order 6 Rule 17 CPC, defendant has to prove that in spite of due diligence he could not have raised such plea before commencement of trial and it is very much necessary after deciding the real controversy involved.
13. Keeping these contours in mind, when the facts on hand are examined, it requires to be noticed at the cost of repetition that undisputedly, third defendant has sought for amendment of written statement after commencement of trial namely, when the evidence of first plaintiff was being recorded. Thus, there cannot be any dispute to the fact that claim of third defendant seeking for amendment of written statement would fall within the four corners of proviso to Order 6 Rule 17 CPC. Hence, third defendant will have to establish that despite due diligence, it could not raise the plea now sought to be put forward in the proposed amendment of written statement. As already noticed herein above, plea put forward in the affidavit supporting the application was on account of third defendant "not being so much fluent in English". Third defendant has also attempted to shift the mistake on the counsel who had filed written statement on behalf of third defendant which undisputedly was on the instructions given by third defendant. Written statement filed at the first instance by third defendant which is at Annexure-C1 was on 05.10.2013. Application for amendment of written statement came to be filed on 11.08.2014. Further, third defendant has contended that certain true facts are not incorporated in the written statement and as such, certain alleged subsequent events is also sought to be put forward in the written statement of third defendant.
14. Trial Court by impugned order has rejected the application on the grounds (1) it is belatedly filed; (2) it would cause prejudice to the plaintiffs; (3) amendment is sought after trial has commenced, and (4) certain reckless allegations are being made in the proposed amendment and thereby, withdrawing the admissions already made.
15. It is in this background, it will have to be examined as to whether proposed amendment of written statement has been sought for diligently or does not take away valuable admissions of third defendant made which is in favour of plaintiffs or proposed amendment is very much necessary for resolving the controversy between the parties. The proposed amendment of written statement is lengthy and voluminous. Third defendant is seeking for deletion/addition/substitution of paragraphs 2, 3, 4, 6 to 8, 10, 14 to 16.
16. Third defendant is seeking for deletion of last line in paragraph 2 and in its place, new facts are sought to be pleaded. A perusal of written statement filed at the first instance - Annexure-C1 would indicate that contents of paragraph 2 of the plaint has been denied to the extent expressly indicated therein and has admitted rest of the contents of paragraph 2 of the plaint as true. In other words, document Nos. 1 and 2 relied upon by plaintiffs and referred to in paragraph 2 of the plaint has been admitted by third defendant. However, the basis on which said document came into existence is sought to be explained away. As such, the amendment sought for does not take away the valuable admission particularly when third defendant has denied the contents of paragraph 2 specifically. Hence, said amendment if allowed would not take away any valuable admission nor it would cause any prejudice to plaintiffs.
17. However, amendment sought for in paragraphs 3 and 4 is virtual withdrawal of the plea already put forward in the written statement - Annexure-C1 and as such, said amendment if allowed, would place plaintiffs in a disadvantageous position and it would take away the valuable admission given by third defendant in the written statement (Annexure-C1) filed earlier and also on account of third defendant seeking for deletion of two lines in paragraph 3 and last portion of paragraph No. 4.
18. Further, third defendant has yet again sought for deletion of first and second sentence in paragraphs 6 and 7 and substitute the same with a new plea. Third defendant having admitted status of first plaintiff in paragraph 6 of the written statement - Annexure-C1 cannot be heard to contend that such admission is to be deleted. Likewise, admission about third defendant representing himself as Power of Attorney holder of defendant Nos. 1 and 2 pleaded in paragraph 7 of the written statement - Annexure-C1 cannot be withdrawn by pleading entirely new facts. Thus, amendment of paragraphs 6 and 7 of the written statement sought for, if permitted, would amount to permitting the valuable admission made by third defendant being withdrawn and thereby placing plaintiffs in disadvantageous situation.
19. In paragraph 8 of the plaint, it has been contended by plaintiffs that certain excess amount had been paid to third defendant i.e., in excess of sale consideration agreed upon under the agreement of sale dated 23.06.2010, which plea has been denied by third defendant in written statement - Annexure-C1 and now a plea is sought to be put forward to elaborate the said plea by contending that plaintiffs have not produced any document to indicate such additional construction is to be carried out. This plea is an amplification of plea already available on record. No prejudice or hardship would be caused to plaintiffs, if such plea is allowed to be brought on record. Hence, same deserves to be permitted to be brought on record.
20. Insofar as paragraph 10 of written statement - Annexure-C1 is concerned, when perused, it would indicate that it is in reply to averments made in paragraph 10 of the plaint, whereunder it has been contended by plaintiffs that defendants represented by third defendant has received a total sum of Rs. 37,83,000/- and same has been denied by third defendant. However, by the proposed amendment, third defendant is seeking for insertion of additional plea which cannot be considered either as substituting earlier plea or withdrawing the earlier plea raised or putting forth an entirely new case and thereby causing severe prejudice to the plaintiffs. In that view of the matter, this Court is of the considered view that plea sought to be put forward in paragraph 10 by third defendant under the proposed amendment deserves to be allowed as it would not cause any prejudice to plaintiffs.
21. Yet another amendment which has been sought for by third defendant is deletion of entire paragraph 14 of written statement - Annexure-C1 and substitution of the same with a new plea. As could be seen from the written statement - Annexure-C1, third defendant has stated certain facts giving rise to execution of joint development agreement and now by proposed amendment, he is seeking for deletion of the same, which if permitted, would result in displacing the earlier plea and same being substituted by entirely new plea which was never the case of third defendant. As such, said amendment sought for cannot be permitted. Likewise, third defendant is seeking for deletion of first sentence in paragraph 15 of written statement - Annexure-C1 which would indicate that third defendant has narrated the manner in which Bank Account was opened, transactions being conducted and cash being paid to plaintiffs by third defendant and now by proposed amendment, said plea is sought to be withdrawn by entirely setting up a new case which if permitted, would result in great prejudice to the plaintiffs and would result in an entirely new defense being allowed to be put up by third defendant. As such, amendment sought for to paragraph 15 of written statement cannot be permitted.
22. Third defendant has also sought for deletion of almost entire paragraph 16 of the written statement - Annexure-C1. A perusal of said plea would indicate that third defendant has thereunder admitted signature of third defendant having been obtained by plaintiff No. 1 on suit documents. Now under the proposed amendment, third defendant is seeking for deletion of these averments and same is sought to be substituted by entirely new plea which was never the case of third defendant. As such, permitting third defendant to amend paragraph 16 of written statement - Annexure-C1 would amount to displacing the original plea with a new plea and valuable right accrued to plaintiffs namely, admission of certain transactions by third defendant would get erased, if substituted plea is brought on record. Thus, it would definitely cause great prejudice to plaintiffs and would take away plaintiffs valuable right.
23. For the reasons indicated herein above, this Court is of the considered view that writ petition deserves to be allowed in part.
Hence, the following:
ORDER
(1) Writ petition is hereby allowed in part.
(2) Order dated 18.08.2015 passed by IX Addl. City Civil and Sessions Judge, Bangalore in O.S. No. 3204/2013 rejecting I.A. No. 3 is hereby set aside in part.
(3) I.A. No. 3 - Annexure-D filed under Order 6 Rule 17 CPC is hereby allowed in part on costs. Writ petitioner is permitted to amend paragraphs 2, 8 and 10 of written statement as sought for and rest of the prayer for amending the written statement as sought for is rejected.
(4) Third defendant to pay costs of Rs. 5,000/- to plaintiffs.
Ordered accordingly.
