IMPORTANT POINT
Where the defendant in a suit for eviction on ground of licencee but a lessee but later on sought to amend written statement incorporate an alternative plea that in case the Court found him to be a licensee he would be entitled to benefit of section 60(b) of Indian Easement Act, it could not be siad that amendment sought for if allowed would amount to permitting him to withdraw his admission in written statement so as to refuse amendment.

Headnote:Code of Civil Procedure, 1908-Order 6, rule 17-Amendment of pleadings-Amendment of written statement-Suit for eviction on ground defendant was licensee-Written statement pleading that defendant was not licencee but a lessee-Amendment sought, during trial, to incorporate alternative plea that in case of court found that defendant as a licensee his licence could not be revoked u/s 60(b) of Indian Easement Act-Rejection on ground proposed amendment mutually destructie, which, if allowed, would amount to permitting defendant to withdraw admission allegedly made in main written statement-Not correct-Plea sought to be raised neither inconsistent nor repugnant to pleas already raid in defence-Alternative plea extention of extention of earlier plea and rebutted of issue framed-Amendment permitted.
       The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation. (Para 3)
       The courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite part on account of lapse of time. The delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement. (Para 4).
       In the instant case defendant wanted to amend the written staement by taking a plea that in case he is not held a lessee, he was entitled to the benefit of Section 60(b) of the Indian Eastements Act, 1882. The plea sought to be raised is neither inconsistent nor repugnant to the pleas already raised in defence. The alternative plea sought to be incorporated in the written statement is in fact the extension of the plea of the respondent-plaintiff and rebuttal to the issue framed regarding liability of the appellant of being dispossed on proof of the fact that he was a licencee liable to be evicted in accordance with the provisions of law. The mere fact that the appellant had filed the application after a prolonged delay could not be made a ground for rejecting his prayer particularly when the respondent-plaintiff could be compensated by costs. We do not agree with the finding of the High Court that the proposed amendment virtually amounted to withdrawalof any admission made by the appellant and that such withdrawal was likely to cause irretrievable prejudice to the respondent. The appellant-defendant is permitted to amend the written statement to the extent of incorporating the plea of his entitlement to the benefit of Section 60(b) of the Indian Easements Act, 1882 only subject to his paying all the arrears on account of licence fee and costs assessed at Rs. 3,000/- (Paras 5 & 7).

JUDGEMENT

Sethi, J. -Leave granted. Heard.

2. The respondent-plaintiff filed a suit against the appellant-defendant praying for the grant of mandatory and prohibitory injunction seeking eviction allegedly on the ground of his being a licencee. In the written statement filed the appellant herein pleaded that he was not a licencee but a lessee. During the trial of the suit the appellant filed an application for amendment of the written statement to incorporate an alternative plea that in case the court found that the defendant was a licencee, he was not liable to be evicted as according to him the licence was irrevocable. He further wanted to add a plea that first and second prayers in the plaint were barred by limitation and that as acting upon the licence he has executed works of permanent nature and incurred expenses in execution of the same, his licence cannot be revoked by the grantor under Section 60(b) of the Indian Eastements Act, 1882. The prayer was rejected by the Trial Court as also by the High Court on the ground that the proposed amendment was mutually destructinve which, if allowed, would amount to permitting the defendant to withdraw the admission allegedly made by him in the main written statement.

3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.

4. This Court in A.K. Gupta & Sons v. Damodar Valley Corporation1 held :

"The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit or new case or cause of action is barred : Weldon v. Neale (1887) 19 QBD 394. But it is also well recognised that where the amendment does not constitute the recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than different or additional approach to the same facts, the amendments will be allowed even after the expirty of the statutory period of limitation : See Charan Das v. Amir Khan, AIR 1921 PC 50 and LJ Leach and Company Limited and Anr. v. Jardine Skinner and Company, 1957 SCR 438.

The principal reasons that have led to the rule last mentioned are, first, that the object of courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes (Cropper v. Smith (1884) 26 Ch.D. 700) and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended in Kishandas Rupchand v. Rachappa Vithoba (1909) ILR 33 Bom. 644 approved in Pirgonda Hongonda Patil v. Kalgonda Sidgonda Patil, 1957 SCR 595.

The expression cause of action in the present context does not mean every fact which it is material to be proved to entitle the plaintiff to succeed as was said in Cooke v. Gill (1873) 8 CP 107, in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amndement. That expression for the present purpose only means, a new claim made on a new basis constitut

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1999 Supreme(SC) 1500

Cases Referred (3)