Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Cal) 512

IN THE HIGH COURT AT CALCUTTA
SUBHASIS DASGUPTA, J.
M/s. Pragati Pratisthan Private Limited – Petitioner
Versus
Ashok Kumar Agarwal – Opp. Party
CO. No. 1599 of 2019
Decided On : 24-09-2021

Advocates Appeared:
For the Petitioner: Mr. Krishna Das Podder.
For the Opposite Party : Mr. R. A. Agarwal, Mr. Ananda Gopal Mukherjee, Ms. N. Pal.

Amendments to pleadings should not be allowed if they fundamentally change the nature and character of the case and if a fresh suit on the amended claims would be barred by limitation. Admissions in pleadings or judicial admissions made by the parties or their agents at or before the hearing of the case stand on a higher footing than evidentiary admissions and cannot be permitted to be wholly withdrawn.

Headnote:
Amendment of Written Statement - Ejectment Suit - West Bengal Premises Tenancy Act, 1997 - [KEYWORD] - Ejectment Suit - West Bengal Premises Tenancy Act, 1997, Order VI Rule 17 of C.P.C. - The court discussed the proposed amendment of the written statement in an ejectment suit and its implications. It considered the necessity, bona fide nature, prejudice to the other side, injustice, and changes to the nature of the case. The court emphasized that amendments should not be allowed if they fundamentally change the nature and character of the case and if a fresh suit on the amended claims would be barred by limitation. The court also highlighted the principles related to withdrawing admissions in pleadings and the binding nature of admissions made by the parties or their agents at or before the hearing of the case.
Fact of the Case:

The petitioner challenged the order allowing the amendment of the written statement in an ejectment suit. The petitioner argued that the amendment would displace him from his case and cause irreparable prejudice. The respondent contended that the amendment was necessary for proper adjudication of the case.
Finding of the Court:

The court found that the proposed amendment seeking to withdraw an admission made by the respondent would irretrievably prejudice the petitioner. It held that the amendment was not justified as it did not adhere to the parameters laid down by the Apex Court and the settled proposition of law.
Issues: The court addressed the issue of whether the prayer for amendment of the written statement was rightly allowed and considered the necessity, bona fide nature, prejudice to the other side, injustice, and changes to the nature of the case.
Ratio Decidendi: The court emphasized that amendments should not be allowed if they fundamentally change the nature and character of the case and if a fresh suit on the amended claims would be barred by limitation. It also held that admissions in pleadings or judicial admissions made by the parties or their agents at or before the hearing of the case stand on a higher footing than evidentiary admissions and cannot be permitted to be wholly withdrawn.
Final Decision: The court set aside the part of the impugned order dealing with the proposed prayer for amendment of the written statement and modified the impugned order to allow the amendment of the written statement with regard to certain proposed amendments.

JUDGMENT :

(Subhasis Dasgupta, J.) :

1. The subject matter of challenge is against the order dated 11th April, 2019 passed by the learned Judge, IVth Bench, Presidency Small Causes Court at Calcutta in Ejectment Suit No. 281 of 2017, allowing amendment of written statement of defendant.

2. Mr. Krishna Das Podder, learned advocate representing the petitioner/plaintiff, submitted that learned court below had erroneously allowed the prayer for amendment of the written statement, without truly appreciating the schedule of amendment proposing amendment of written statement as many as three (3) counts, and by reason of such amendment of the written statement being allowed, plaintiff had been irretrievably prejudiced by denying him the opportunity of extracting the admission from the defendant. More so, the proposed amendment of written statement pertaining to serial no. 1 of schedule of amendment, according to Mr. Podder, would seek to displace the plaintiff completely from his case.

3. Reliance was placed by the learned advocate for the petitioner on a decision reported in AIR 1977 SC 680 delivered in the case of M/s. Modi Spinning & Weaving Mills Co. Ltd. and Anr. Vs. M/s. Ladha Ram & Co. , wherein the Apex Court affirmed the decision of the concerned High Court rejecting the application for amendment of written statement, as the same would displace the plaintiff completely from the admission made by the defendant in his written statement.

4. As regards the proposed amendment appearing in serial nos. 2 and 3 of schedule of amendment, learned advocate for the petitioner contended that there had been no necessity for amendment of written statement with reference to of serial nos. 2 and 3, because in the original written statement, it was already there, and as such it was an unnecessary exercise made by the defendants/opposite parties, which learned court below ought not to have allowed. It was also contended by Mr. Poddar that it was a suit for recovery of kash possession of the suit premises, in respect of one room under possession of the defendant/opposite party in the first floor of the building, upon resorting to Section 6 of the West Bengal Premises Tenancy Act, 1997. The defendant/opposite party categorically admitted in his written statement that he was tenant in respect of one room in the first floor of the building, and has been using and occupying the said premises for three decades by paying rent therefor without any default. Such admission of defendant, if allowed to be resiled and/or withdrawn taking help of proposed amendment of the written statement, so far as serial no. 1 of schedule of amendment is concerned, the petitioner/plaintiff would be completely displaced from his suit, and further would be deprived of the opportunity of extracting the admission, deliberately and consciously made in the written statement, vide para 9 of the written statement.

5. Mr. Poddar also urged before the court that denial of ownership plaintiff/petitioner by the opposite party/tenant, and consequently denial of tenancy by the opposite party, not being raised in course of hearing of the petition filed by the opposite party/defendant under Sections 7(1) and 7(2) of the West Bengal Premises Tenancy Act, the petition for amendment of written statement was nothing, but harrasive, purposive and simply to displace the petitioner/plaintiff from the instant suit.

6. Capital was sought to be derived by the learned advocate for the petitioner from a further decision reported in (2009) 10 SCC 84 delivered in the case of Revajeetu Builders & Developers vs. Narayanaswamy & Sons & Ors., in order to establish that necessary factors for making consideration of the prayer for amendment of the written statement even could not be taken into account by the court below.

7. Mr. Ananda Gopal Mukherjee, learned advocate for the opposite party/tenant being assisted by Mr. R. A. Agarwal raised challenges against the submissions advanced by the learned advocate f