2007 Supreme(SC) 531

2007(3) Supreme 582
SUPREME COURT OF INDIA
(From Bombay High Court)
Tarun Chatterjee and R.V. Raveendran, JJ.
Usha Balashaheb Swami & Ors. — Appellants
versus
Kiran Appaso Swami & Ors. — Respondents
Civil Appeal No. 2019 of 2007
(Arising out of SLP (C) No. 3366 of 2006)
Decided on 18-4-2007
Counsel for the Parties :
For the Appellants : V.N. Ganpule, Sr. Advocate, Ms. Punam Kumari, S.B. Meitei and Naresh Kumar Gaur, Advocates.
For the Respondents : U.U. Lalit, Sr. Advocate, S.A. Desai, Mrs. A.S. Desai, Vikram Saluja, A.N. Suryawanshi, Venkateswara Rao Anumolu, V.B. Joshi, Pramit Saxena, Prashant Chitmiah and Yash Pal Dhingra, Advocates.

IMPORTANT POINT
In a case of amendment of a written statement the Courts would be more liberal in allowing than that of a plaint as the question of prejudice would be far less in the former than in the latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed.

Headnote:(i) Civil Procedure Code, 1908 — Order 6 Rule 17 — Amendment of written statement — Addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement not objectionable — In case of amendment of a written statement, courts are more liberal in allowing an amendment than that of a plaint as question of prejudice would be far less in the former than in the latter case.

       Held : From a bare perusal of Order 6 Rule 17 of the Code of Civil Procedure, it is clear that the court is conferred with power, at any stage of the proceedings, to allow alteration and amendments of the pleadings if it is of the view that such amendments may be necessary for determining the real question in controversy between the parties. The proviso to Order 6 Rule 17 of the Code, however, provides that no application for amendment shall be allowed after the trial has commenced unless the court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. However, proviso to Order 6 Rule 17 of the Code would not be applicable in the present case, as the trial of the suit has not yet commenced. (Para 18)

       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. (Para 19)

       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. (Para 20)

       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. (Para 21)

       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. (Para 22)

       (ii) Civil Procedure Code, 1908 — Order 6 Rule 17 — Amendment of written statement — Admissions made previously not withdrawn — Certain additional facts incorporated — Suit for partition — Suit properties originally belonged to one ‘V’ (since deceased) — On his death, ‘A’ and ‘B’ (since deceased) inherited suit properties — Appellants, defendants 8 to 14 are heirs and LRs of ‘B’ while plaintiff and defendants 1 to 7 inherited suit properties on death of ‘A’ — Appellants filed written statement in which they admitted that plaintiff and defendants 1 to 7 were entitled to one half share in the suit properties — Application for amendment of written statement filed by appellants for adding that plaintiff and defendants 3 to 7 could not acquire right, title and interest in joint family properties, as they were illegitimate children of ‘A’ — Trial Court allowed application for amendment — In revision, High Court rejected amendment of written statement on ground that it was not permissible for appellants to withdraw admission made previously — Whether High Court was justified in reversing discretionary order of trial Court — (No).

       Held that in a case of amendment of a written statement the Courts would be more liberal in allowing than that of a plaint as the question of prejudice would be far less in the former than in the latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed, we may now proceed to consider whether the High Court was justified in rejecting the application for amendment of the written statement. (Para 23)

       The appellants had stated in para 8 of their original written statement “that plaintiff and defendant Nos. 1 to 7 have got 1/2 share and defendant Nos. 8 to 14 have got 1/2 share in all the family properties” and that the maternal aunts have also got share. By seeking incorporation of paras 8A and 8B and substitution of para 8 in the written statement, the appellants have maintained the admissions made by them in para 8 of the written statement but added a proviso or condition to the admission. Therefore, it was not a case of withdrawal of the admission by the appellants by making the application for the amendment of the written statement but in fact such admission was kept intact and only a proviso has been added. This, in our view, is permissible in law and the question of withdrawing the admission made in para 8 in its entirety in the facts as noted herein above, therefore, cannot arise at all. (Para 26)

       Since we have already held that in the case of amendment of a written statement, the defendant is entitled to take new defence and also to plead inconsistent stand and in view of our discussions made herein above that by making the application for amendment of the written statement, admission was not at all withdrawn by the appellants nor a totally inconsistent plea was taken by the appellants in their application for amendment of the written statement, the High Court had failed to appreciate that by the proposed amendment, the appellants were not withdrawing their admission in respect of the half share in the ancestral property rather they only added that the plaintiff and defendant Nos. 3 to 8 could be entitled to such share if they proved to be the legitimate children of Appasao (since deceased) who was entitled to half share in the property of late Veersangayya. That apart, it appears from the record that the written statement filed by the appellants was before the death of defendant No.1 (first wife of Appasao). After the death of defendant No.1, when plaintiff and defendant Nos. 2 to 8 claimed themselves as heirs and legal representatives of defendant No.1, the appellants sought amendment of the written statement challenging the legitimacy of plaintiff and defendant Nos. 2 to 8. In view of the discussions made herein above, we do not think that it was impermissible in law for the appellants to seek amendment of the written statement in the manner it was sought for. (Para 27)

       Therefore, it was neither a case of withdrawal of admission made in the written statement nor a case of washing out admission made by the appellant in the written statement. As noted herein earlier, by such amendment the appellant had kept the admissions intact and only added certain additional facts which need to be proved by the plaintiff and defendant Nos. 2 to 8 to get shares in the suit properties alleged to have been admitted by the appellants in their written statement. Accordingly, we are of the view that the appellants are only raising an issue regarding the legitimacy of plaintiff and defendant Nos. 3 to 7 to inherit the suit properties as heirs and legal representatives of the deceased Appasao. Therefore, it must be held that in view of our discussions made herein above, the High Court was not justified in reversing the order of the trial court and rejecting the application for amendment of the written statement. (Para 28)

       For the reasons aforesaid, we are unable to sustain the judgment of the High Court rejecting the application for amendment of written statement on the ground that if such amendment was allowed it would seriously prejudice the plaintiff. There is yet another aspect of the matter. The trial court on consideration of the written statement as well as the application for amendment of the written statement, in its discretion allowed the application for amendment of the written statement. The High Court ought not to have reversed the said order of the trial court, rejecting the application for amendment of the written statement, when the trial court has exercised its discretion in allowing the amendment of written statement on consideration of the principles of law and the material on record. (Para 31)