Back
2016 Supreme(Bom) 1820
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
A.S. Chandurkar, J.
Dr. Mohammed Abdul Wahid S/o Late Dr. Mohammed Abdul Aziz – Petitioner
Versus
Smt. Niloger Wd/o Dr. Mohammad Abdul Salim – Respondent
Writ Petition No. 6562 of 2015
Decided On : 30-06-2016
For the Petitioner: Shri Masood Shareef.
For the Respondent: Dr. R.S. Sundaram.
Headnote:Civil Procedure Code, 1908-Order VI, Rule 17-Amendment of pleadings.-Grant of leave to amend pleadings, entitled other party to consequentially amend pleadings.
Certainly. Based on the provided legal document, here are the key points summarized:
-
The petitioner, who is the original plaintiff, filed a suit seeking declaration of his share in the property, along with a prayer for partition, possession, and injunction. The respondent filed a written statement opposing the claim (!) .
-
During the pendency of the suit, the plaintiff sought permission to amend the plaint, which included amendments to the schedule of the property and certain paragraphs. The trial court allowed this amendment and permitted consequential amendments to the defendant’s pleadings (!) .
-
The defendant moved to amend her written statement further, including adding new paragraphs. The trial court partly allowed this, permitting amendments only to specific paras and granting liberty to move separate applications for other amendments (!) .
-
The defendant later moved to add a particular paragraph (para 37A) to the written statement, which the trial court allowed. The plaintiff then sought to respond to this new paragraph by amending her pleadings, but the trial court rejected this application, citing that it was not consequential and that the plaintiff could only respond through evidence (!) .
-
The appellant’s counsel argued that the trial court erred in rejecting the plaintiff’s application to amend her pleadings, asserting that the amendment was a response to the defendant’s amendment and was not a consequential one. They relied on principles that generally permit parties to amend pleadings in response to amendments by the other side, especially when liberty has been granted (!) (!) .
-
The respondent’s counsel contended that the amendments made were merely clarifications or averments supporting existing pleadings and that further amendments were unnecessary or impermissible without new pleadings. They emphasized that amendments should not introduce new pleas unless properly permitted (!) .
-
The court observed that the trial court had granted liberty for amendments that were consequential but had denied permission for amendments that were not consequential, specifically regarding paragraph 37A. The subsequent application to amend was allowed, recognizing that the amendments were necessary for a fair adjudication of the case (!) .
-
The court reiterated the legal principle that when a party is permitted to amend pleadings, the opposite party should also be allowed to amend in response, especially if the amendments are consequential. It emphasized that amendments should not introduce new pleas or facts unless explicitly permitted (!) (!) .
-
The court found that the trial court was not justified in refusing the plaintiff’s application to amend her pleadings in response to the defendant’s amendment of paragraph 37A. The rejection was deemed a material irregularity, and the court set aside the order and allowed the application (!) (!) .
-
The final order directed the trial to be expedited, with a timeline set for the conclusion of the proceedings, and the writ petition was allowed accordingly (!) (!) .
-
Overall, the decision underscores that amendments made in response to other pleadings, especially when granted liberty, should be permitted to ensure a just adjudication, and the court’s refusal to allow such amendments can be challenged as irregular or improper (!) (!) .
Please let me know if you need further elaboration or specific legal insights.
A.S. Chandurkar, J.
1. Rule. Heard finally with the consent of the learned Counsel for the parties.
2. The petitioner is the original plaintiff who has filed suit for declaration with regard to his share in the suit property with a further prayer for a preliminary decree of partition, separate possession and perpetual injunction.
3. The respondent No. 1 herein filed her written statement opposing the claim as made in the suit. During pendency of the suit, the plaintiff moved an application under provisions of Order 6, Rule 17 of the Code of Civil Procedure, 1908 (for short, the Code) seeking leave to amend the plaint. By said amendment, the schedule of the suit property and some paragraphs after para 13 were sought to be amended. The trial Court by the order dated 1.4.2015 allowed the said application and also permitted the defendants to consequentially amending their pleadings. Pursuant to the aforesaid order, the defendant No. 1 moved an application below Exhibit 139 praying that the consequential amendment to the written statement be allowed. In this application besides the reply to the amended plaint, para 37A was also sought to be amended in the written statement. The trial Court by order dated 27.7.2015 partly allowed the said application. It permitted the defendant no. 1 to carry out the consequential amendment to paras 35B, 35C and 35D. The amendment in the other paras was not granted but liberty was granted with to move a separate application in that regard. An application for review filed by the defendant no. 1 came to be rejected.
4. Thereafter the defendant no. 1 moved another application below Exhibit 149 and sought to add para 37A to the written statement. The trial Court by order dated 17.10.2015 allowed the said application. In response thereto the plaintiff filed an application below Exhibit 151 seeking to reply to the averments made in para 37A of the written statement. The trial Court by the impugned order dated 26.10.2015 rejected the said application on the ground that as the plaintiff had amended the plaint and the defendant had also carried out the consequential amendment, there could not be any further amendment to the pleadings.
5. Shri Masood Shareef, the learned Counsel for the petitioner submitted that the trial Court was not justified in rejecting the application for amendment below Exhibit 151. According to him, the trial Court while permitting the defendant no. 1 to amend her written statement consequentially had specifically refused permission to add para 37A in the written statement on the ground that the pleadings in said paragraph were not of a consequential nature and had therefore granted liberty to move a separate application. Pursuant thereto, the application moved by the defendant no. 1 to add aforesaid paragraph was allowed by the trial Court by passing order below Exhibit 149. According to him, the plaintiff could not have been denied the permission to respond to these averments inasmuch as the amendment carried out vide para 37A was not consequential in nature but it was a fresh pleading. He therefore, submitted that the entire basis on which the amendment was disallowed was legally unsustainable. In support of his submissions the learned Counsel placed reliance on the decision of the Hon'ble Supreme Court in Gurdial Singh and others vs. Raj Kumar Aneja and others, (2002) 2 SCC 445.
6. Dr. R.S. Sundaram, the learned Counsel for the respondent no. 1 supported the impugned order. According to him, the trial Court was justified in rejecting the application moved by the petitioner. He submitted that pursuant to the initial amendment carried out by the plaintiff, the defendant had amended he pleadings. What was sought to be added thereafter in para 37A were merely averments in support of the pleadings that were already on record and that there could not be any denial of the averments made in the written statement by amending the plaint. According to him, if such an application is allow
