IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.952 of 2006 MD.MANJOOR ALAM Versus SHANKAR LAL AJAY ----------- 5 18.11.2008 Heard Mr. A.K. Mallick, learned counsel for the petitioner and Mr. Indrajeet Jha, learned counsel for the sole opposite party. In the opinion of this Court the prayer of the defendant- tenant-petitioner seeking amendment in the written statement could not have been rejected on the ground that such amendment sought in the written statement had an affect of withdrawing certain admission made by the petitioner in the original written statement. Mr. Mallick, learned counsel appearing on behalf of the petitioner has, in fact, explained this aspect that all that was sought to be added by the petitioner by bringing amendment in the written statement was that certain facts with regard to rent receipts granted by the plaintiff-landlord were sought to be added by explaining the system of payment of rent and acceptance of the same through the rent receipts. Such additional plea by way of amendment in the submission of Mr. Mallick, even if it was contrary to the earlier stand taken by the petitioner in his written statement, the same was capable of being allowed as the defendant can definitely put even contrary plea in his written statement. Mr. Mallick in this context has relied on the judgment of the Apex Court in the case of Usha Balashaheb Swami & Ors. Vrs. Kiran Appaso Swami & Ors. reported in 2007(3) BBCJ 275 (SC). Mr. Jha, learned counsel appearing on behalf of the - 2 - plaintiff-landlord-opposite party has, however, submitted that once the defendant-petitioner in his written statement in paragraph 7 had taken specific plea that no such rent receipts was ever issued by the plaintiff in favour of the petitioner, any amendment seeking a contradictory stand was impermissible, in as much as, it would amount to retracting from the earlier admission made in the written statement. Expanding his submission Mr. Jha also contended that such amendment in the written statement was actually malafide and was to only cover up the issue of last rent paid as decided in the order of the court below dated 24.1.2004 and affirmed by this Court also in the order dated 24.9.2004 in C.R. No. 154 of 2000. This Court having considered the aforementioned submissions is of the view that the amendment as sought by the petitioner in his written statement ought to have been allowed, in as much as, Courts have always been liberal in granting amendment in the written statement. The Apex Court in the case of Usha Balashaheb Swami (Supra) has held that addition of new ground or substituting or altering evidence by taking in consistent plea in the written statement cannot be held to be objectionable while allowing amendment in the written statement. The Apex Court, in fact, has drawn line of distinction between amendments in plaint vis-à-vis amendment in the written statement by holding that the test of adding or substituting any new cause of action, objectionable for the purpose of amendment in the plaint cannot be applied in the case of amendment in the written statement. - 3 - Judged, in this background and taking into consideration, the averments in paragraph No.7 of the original written statement, this Court is satisfied that even if the amendment proposed in the written statement raised some inconsistent plea of the defendant-petitioner, the same has to be still allowed. The whole approach of the court below in refusing such amendment in the written statement by applying test of amendment in a plaint therefore is an apparent jurisdictional error. In that view of the matter, the impugned order refusing amendment in the written statement is hereby set aside and the Court below is directed to allow amendment in the written statement as prayed by the petitioner. Before parting with, this Court however must clarify that effect of allowing amendment in the written statement in no way will take away the right of the plaintiff-landlord as with regard to last rent paid of Rs. 550/- per month as was determined by the Court below while deciding the issue under Section 15 of the B.B.C. Act in terms of the order dated 24.1.2004 which also received approval of this Court by dismissal of C.R. No. 154 of 2004 in an order dated 24.9.2004. This Court in the said order had held as follows:- “Though the court has committed error in saying that the receipt does not bear the signature of the tenant but has rightly come to the conclusion that the rent of the premises was Rs.550/- and as such he has rightly directed the petitioner to pay the arrears of rent at the rate of Rs. 550/- per month and also current rent at the same rate. Thus, on consideration. I find nothing wrong in the order, Accordingly, the revision petition is dismissed. Since the revision petition is dismissed the - 4 - interim order dated 19-7-04 would be inoperative. It is however, made clear that the petitioner shall be at liberty to file a petition before the court below that since he has disputed the quantum of rent, an issue be framed and parties be allowed opportunity to lead evidence in support of their case. In case such a petition is filed the court below shall frame an issue and allow the parties an opportunity to lead evidence and shall determine the current rent”. Thus, when the finding of last rent paid by the petitioner has received approval of this Court, any pleadings brought by the petitioner by way of amendment showing lesser payment through a written document will not be taken into account. This Court also must record that Mr. Mallick, counsel for the petitioner in the light of the aforementioned operative portion of the order of this Court dated 24.9.2004 in C.R. No. 154 of 2004 has frankly conceded that by virtue of amendment in the written statement the petitioner in the capacity of defendant-tenant would neither claim revision of the amount of rent already paid nor would question the payment of rent in future and would keep on paying the rent of Rs. 550/- per month till disposal of the suit. In that view of the matter, the amendment in the written statement of the petitioner would stand allowed only by Treating the rent of the premises at Rs. 550/- per month. With the aforementioned observations, clarifications and directions this Civil Revision Application to the extent indicated above is allowed. Bibhash/Abhay (Mihir Kumar Jha, J.)