B.N. Chaturvedi, J.@mdashIn the course of proceedings before a Commission of Inquiry where the plaintiff was appearing in his professional capacity as a Senior Advocate, in his written submissions in the nature of arguments addressed to the Commission, the defendant allegedly made certain libellous statements, giving rise to an action for damages. Consequently, a suit for damages against the defendant was brought before this Court. Alleged defamatory statements Constituting basis of the suit, as reproduced in the plaint read as under:
"Hence his (plaintiffs)obsession with my sources is at the LTTE''s behest. According to my information ,Mr. Jethmalani has been receiving money from the LTTE being deposited in his son''s account in CITIBANK in New York. That such deposits take place has been admitted byMr. Jethmalani."
2. The defendant has by making present application sought to effect certain amendments in his written statement .A new paragraph 5A, to the following effect is sought to be added;
5A: "The alleged cause of action has been expunged by the Jain Commission of Inquiry, which on 22.11.1995 has ordered as follows:
"Shri Jethmalani submitted that during his deposition, Dr. Subramanian Swamy has made uncalled for and unwarranted remarks against him. Even in the written submissions submitted by Dr. Subramanian Swamy after the end of the deposition, he has leveled false and unwarranted remarks. All have to be expunged and he should have been protected from such a conduct of the witness which was highly reprehensible and condemnable in respect of which not only he but other members of the Bar present during the proceedings had also strongly protested. It is true that it was highly improper and unjustified on the part of Dr. Subramanian Swamy to pass any remarks against the counsel Sh.Jethmalani appearing on behalf of Ms. Jayalalitha. I had been taking strong exception to such remarks and had been warning and directing Dr. SubramanianSwamy to keep restraint and maintain the dignity of the proceedings. For a certain remark by Dr. Swamy in regard to Shri Jethmalani, everyone including the Commission felt hurt and Dr.Subramanian Swamy on that occasion apologised during the proceedings. However he failed to observe that restraint and made unwarranted remarks in his written submissions which he should not have done. All remarks against Sh. Jethmalani shall stand expunged .
Expunction means that the remarks were never made. The Commission having expunged them, they can no longer be treated as Part of the record of the court ,and the same cannot be relied upon until the order expunging there marks ,is revoked or set aside. The effect of the order of expunction is asif the remarks had never been made, and hence they cannot be the foundation of a suit for defamation for a statement made in the course of proceedings, particularly when it was the plaintiff himself who moved for expunction. In short the effect of the expunction is to mean that the remarks have never been made .Thus such expunged remark cannot make a cause of action in the instant suit .Hence there is no cause of action ;and the plaint must be summarily rejected".
3. Further, necessitated by proposed "addition of Para 5A, a consequential amendment in para 19 of the written statement is also sought to be carried out; by mentioning "in paras 4, 5, 5A, 6 of this written statement ,in place of ''in paras 4, 5, 6 of this written statement'' as occurring in that para 19.
4. Contest to the application is essentially based on pleas; firstly, that the proposed amendment is legally impermissible as notwithstanding that the plea now being sought to be incorporated did not form part of defendant''s pleadings, the same was raised on his behalf in the course of hearing on is 9989 of 2000under Order 7 Rule 11 CPC, which was dismissed by this Court vide order dated 27th November, 2000 and a SLP (Civil) No. 4948 of 2000 filed by the defendant before the Supreme Court, for setting aside the said order declining the application for rejection of plaint, on the same very grounds as urged before this Court earlier, was also dismissed by the Supreme Court by an order dated 16.4.2001; secondly, that the order dated 22nd November, 1995 of the Jain Commission of Inquiry came to be passed after institution of the suit; thirdly, that though the defendant filed his written statement in July, 1996 no reference to the said order dated 22nd November, 1995was made therein and that the application is wholly malafide, vexatious and aimed at protracting the trial and lastly, that in the course of admission/denial of documents ,the order dated 22nd November, 1995 of the Jain Commission of Inquiry was denied by the defendants ''inadmissible''.
5. Before embarking upon discussion on the instant application it would be worthwhile to take note of certain aspects emanating from the pleadings and the proceedings held heretofore. The defendant in his defense ,as set up in the written statement, interalia, pleads that there was no publication of the alleged defamatory statements and alternatively, thathe is protected u/s 6 of the Commission of Inquiry Act. Apart from raising the plea for rejection of plaint in view of aforesaid preliminary objections ,the defendant made an application being IANo. 9989/2000 under Order 7 Rule 11 CPC seeking rejection of plaint on the ground that the plaint does not disclose any ''tribal cause of action'' in view of protection available u/s 6 of the Commission of Inquiry Act. This application was, however, rejected by this Court vide order dated 27th November,2000 and the SLP filed against that order was also dismissed by the Supreme Court by an order dated 16th April, 2001.
6. I have heard the arguments on either side.
7. Opposing the proposed amendment much emphasis was laid on the fact that the plea now being sought to be canvassed by way of proposed amendment having earlier been raised and negatived by this Court as well as by the Supreme Court, is no longer available to the defendant. A reference to the order dated 27thNovember, 2000 rejecting the is 9989/2000 under Order7 Rule 11 CPC, would however reveal that the merits of such a plea had not been examined and decided in that order .On that occasion rejection of the plaint was sought on the plea that the same does not disclose any'' tribal cause of action'' in view of Section 6 of the Commission of Inquiry Act. Holding that facts of the given case did not attract application of Section 6 of the Commission of Inquiry Act, the plea rejection of plaint was discarded. The SLP against the order dated 27th November, 2000 was dismissed by the Supreme Court by a non speaking order .Thus, even if the defendant had taken the plea in question in the course of arguments on the IA9989/2000 or in his SLP before the Supreme Court, there is no indication that such plea was indeed adverted to and negatived. Effect of dismissal of the SLP by the Supreme Court by a non speaking order is not indicative of all the pleas taken therein being examined and rejected. This can be better answered in the words of the Supreme Court in
"It is true that against earlier decision of the High Court, a SLP was rejected by this Court but as it was not a speaking order ,it cannot be said that this Court had put its imprimatur on the observations found in paragraph 14 of the judgment in Jha case which we have referred to earlier. As held in the decision of this Court in Indian Oil Corporation Ltd. v. State of Bihar,when SLP is summarily rejected ,it occasions no merger of the order of the lower Court in the order of the Supreme Court, and even such an order can be challenged in the High Court .
8. Moreover, prejudging merits of proposed amendment is not in keeping with the law on amendment of pleadings .Unless it is frivolous, vexatious, malafide or in intended to overreach the Court, an amendment which helps in resolving the real controversy between the parties, deserves to be allowed and it is not open to decide at this stage if the person seeking the amendment will ultimately succeed in his plea or not.
9. Next argument that the order dated 22ndNovember, 1995 of Jain Commission of Inquiry came into being after institution of the suit is of relevance only in the context of plea for rejection of plaint for not disclosing cause of action. Any subsequent event bearing effect on the final outcome of the matter in controversy can be sought to be incorporated in the pleadings .Thus the second plea is not a valid objection against the proposed amendment being allowed.
10. Amendment of pleadings can be sought at any stage of the proceedings. A particular plea based on certain facts being available at the time of filing of the suit or written statement but not finding mention in the pleadings, cannot constitute a good ground to refuse incorporation thereof in the pleadings at a subsequent stage unless the move in the respect sounds frivolous, vexatious or malafide. Thus even though the order dated22nd November, 1995 relating to expunction of the alleged libellous statement had come into existence before the defendant filed his written statement, the amendment in question cannot be disallowed on this ground alone. Of course the proposed amendment is being characterised as malafide and vexatious, no material with reference to the record could be brought forth to garner support for such kind of argument. The recording of evidence is already on and there has been no set-back to the progress of the trial on account of present application for amendment. There is no denial that the order dated 22nd November, 1995 expunging the alleged defamatory statement constitutes part of proceedings held before Jain Commission of Inquiry. The plea based on the said order which the defendant seeks to incorporate is a legal one and no additional evidence would appear necessary to provide sustenance to it. Thus ,in the event of proposed amendment being granted, the same cannot be said to result in protracting the trial .
11. Lastly, the fact that in the course of admission/denial of documents, the order dated 22ndNovember, 1995 was termed by the defendant as'' inadmissible ''cannot operate as a bar against seeking the present amendment based on that order. The question relating to admissibility or inadmissibility of a particular piece of evidence falls within the domain of court''s jurisdiction and it is wholly inconsequential as to how a party to the suit terms the same. Admission/denial of documents is simply aimed at cutting short the oral evidence to prove the execution and contents of a particular document. If the defendant refused to admit the order dated 22nd November, 1995terming the same as ''inadmissible'' he cannot be pleaded to be estopped from seeking to rely upon the same for his defense.
12. Viewed in the light of aforesaid, no ground is made out justifying refusal for the proposed amendment. The application is Therefore granted and the proposed amendment is permitted to be incorporated in the written statement .
