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HIGH COURT OF DELHI
CS(OS) 983/2010
JUDGMENT
Through: Mr.C. B. Rai, Advocate
Through: Mr.R. M.Sinha, advocate for defendant no.1
Mr.Rajesh Gupta and Mr.Harpreet Singh, Advocates for defendants No.2 & 3
1. Whether the Reporters of local papers may be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest? G.S.SISTANI, J. (ORAL) I.A. No.6635/2010
1. In view of the order passed on 23.09.2010, present application stands disposed of. I.A. No.6636/2010
2. This is an application for appointment of the Local Commissioner. The Local Commissioner has been appointed and he has filed his report. Accordingly the application is disposed of. I.A. No.12272/2010
3. Dismissed as not pressed. I.A. No.14736/2010
4. This is an application filed by defendant no.1 seeking amendment 2011:DHC:3881 in the written statement.
5. Counsel for the applicant submits that the necessity of filing of this application for amendment of the written statement has arisen on account of the fact that some developments have taken place after filing of the written statement. He further seeks leave from this court to make certain additions in the written statement, with a view to elaborate the defence which has already been raised, which are necessary for the complete and proper adjudication of the case and which could not be incorporated in the written statement in spite of due diligence. Counsel for the applicant also submits that defendant no.1 also seeks leave to add one paragraph containing various events and the dates in a chronological order, for the sake of convenience and proper adjudication of the dispute between the parties.
6. Counsel also wishes to make additions to paragraph 1 to the preliminary objections, necessity of which has arisen on account of the fact that in para 1 of the preliminary objections, the defendant had stated that the defendant no.1 had sold the property to Smt.Satyami vide agreement to sell dated 24.05.2010, however, by the present amendment the defendant no.1 seeks to incorporate that this agreement to sell stands cancelled on 12.10.2010 on a date subsequent to the filing of the written statement. The defendant also wishes to incorporate additional paragraphs 3 and 9 in the written statement by elaborating the defence already raised by the applicant. It is submitted that the proposed amendment are necessary for proper adjudication of the case.
7. Learned counsel has also submitted that the suit is at the initial stage and issues are yet to be framed in the matter and admission denial of the documents has not been taken place, besides, there is no delay in moving the present application for amendment.
8. Counsel for the plaintiff, non-applicant submits that the amendments sought to be incorporated are without any merit. Mr.Rai also submits that the purpose of filing the present application is to cover up the lapses and with a view to incorporate false events which have not been taken place. It is further submitted that the sole purpose of the applicant is to delay the matter under the garb of elaborating the defence which has already been taken in the written statement.
9. I have heard counsel for the parties. It will be useful to reproduce the observations of the Supreme Court made in paragraphs 19 to 22 of Usha Balashaheb Swami & Ors. v. Kiran Appaso Swami & Ors. 2007 V AD(S.C) 97.
14. It is now well-settled by various decisions of this Court as well as those by High Courts that the courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bonafide one. In this connection, the observation of the Privy Council in the case of Ma Shwe Mya v. Maung Mo Hnaung AIR 1922 P.C. 249 may be taken note of. The Privy Council observed: All rules of courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject-matter of the suit. (Underlining is ours)
20. It is equally well settled principle 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.
21. Such being the settled law, we must hold that 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 [see B.K. Narayana Pillai v. Parameswaran Pillai: AIR 2000(1) SCC 712) and Baldev Singh and Ors. v. Manohar Singh (2006 (6) SCC 498)]. Even the decision relied on by the plaintiff in Modi Spinning (supra) clearly recognises that inconsistent pleas can be taken in the pleadings. In this context, we may also refer to the decision of this Court in Basavan Jaggu Dhobi v. Sukhanandan Ramdas Chaudhary (Dead) [1995 Supp. (3) SCC 179]. In that case, the defendant had initially taken up the stand that he was a joint tenant along with others. Subsequently, he submitted that he was a licensee for monetary consideration who was deemed to be a tenant as per the provisions of Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This Court held that the defendant could have validly taken such an inconsistent defence. While allowing the amendment of the written statement, this Court observed in Basavan Jaggu Dhobi's case (supra) as follows: As regards the first contention, we are afraid that the courts below have gone wrong in holding that it is not open to the defendant to amend his statement under Order 6 Rule 17 CPC by taking a contrary stand than was stated originally in the written statement. This is opposed to the settled law open to a defendant to take even contrary stands or contradictory stands, the cause of action is not in any manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action.”
22. As we have already noted herein earlier that in allowing the amendment of the written statement a liberal approach is a general view when admittedly in the event of allowing the amendment the other party can be compensated in money. Technicality of law should not be permitted to hamper the Courts in the administration of justice between the parties. In the case of L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357], this Court observed "that the Courts are more generous in allowing amendment of the written statement as the question of prejudice is less likely to operate in that event". In that case this Court also held "that the defendant has right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to serious injustice."
10. Applying the settled principles of law to the facts of this case, it may be noticed that the amendment sought to be carried out in paragraph (1) of the preliminary objections, is to bring subsequent events on record that the agreement to sell entered into with one Smt.Satyami, has been cancelled. This amendment is opposed by counsel for the plaintiff, non-applicant on the ground that the same is without any merit. While considering an application for amendment, it is not necessary for the court to render a decision whether amendment is to be accepted or rejected on merits. By the amendment sought, the defendant is not withdrawing an admission nor is the plea totally inconsistent. As held by the Apex Court that while considering an application for amendment, the Court must take a liberal view in comparison to the amendment of a plaint as the question of prejudice would be far less in the case of amendment in the written statement. The case at hand is at the initial stage and issues are yet to be framed and even otherwise, there is no delay in moving the present application. Accordingly, the present application is allowed. Let the written statement be taken on record.
11. Let the amended written statement be taken on record. Replication to the amended written statement be filed within 30 days. Parties will file documents within the same period. Affidavit by way of evidence be filed by the plaintiff within six weeks.
12. List the matter before Joint Registrar on 30.09.2011 for admission/denial of documents. List the matter before court on 19.10.2011 for framing of issues. Parties will bring suggested issues to court on the next date of hearing.
13. It is also suggested by counsel for the parties that a retired Additional District Judge may be appointed as the Local Commissioner to record the evidence of the parties. The fee of the Local Commissioner is tentatively fixed at Rs.55,000/- to be shared by the parties. G.S.SISTANI,J AUGUST 02, 2011 ssn