1 RADHEYSHYAM SHARMA VS. ADDITIONAL DISTRICT JUDGE(F.T.) NO.2, BHILWARA & ORS. (S.B.CIVIL WRIT PETITION NO. 2311/07) Dated:- 13 .1.2009. HON'BLE MR.JUSTICE SANGEET LODHA Mr.Vinay Jain, for the petitioner. Dr.Sachin Acharya for the respondents. Reportable 1. This writ petition is directed against order dated 2.3.07 passed by the Additional District Judge(F.T.) No.2, Bhilwara in Civil Suit No.137/04, whereby an application preferred by the defendants-respondents under Order VI Rule 17 of the Civil Procedure Code, 1908 ( in short “CPC” hereinafter) seeking leave to amend the written statement , stands allowed . 2. It is contended by the learned counsel for the petitioner that the learned trial court has committed grave error of law and facts by allowing the application . It is submitted by the learned counsel that by way of amendment at such a belated stage, when the matter was fixed for rebuttal evidence, the defendants cannot be permitted to take altogether a different stand. The learned counsel submitted that the agreement on the strength of which the amendment was sought for must be in possession of the defendants-respondents and therefore, it cannot be said that inspite of due diligence , the defendants could not have raised the matter before the commencement of the trial, which is sought to be raised by way of amendment. Accordingly, it is 2 submitted by the learned counsel that in view of the provisions of Order VI Rule 17, as amended by the the Code of Civil Procedure (Amendment) Act, 2002( in short “the Amendment Act,2002” hereinafter) amendment sought for ought not to have been allowed by the learned trial court at such a belated stage. In support of his arguments, the learned counsel has relied upon the decisions of the Hon'ble Supreme Court in the matter of “M/s Modi Spinning & Weaving Mills Co. Ltd. And another vs. M/s. Ladha Ram & Co.”, AIR 1977 S.C., 680, “Haji Mohammed Ishaq Wd. S.K. Mohammed and others vs. Mohamed Iqbal and Mohamed Ali & Co.”, AIR 1978 SC, 798, and “Gautam Sarup vs. Leela Jetly & Ors.”, 2008(7) S.C.C., 85. 3. Per contra, the learned counsel appearing on behalf of the respondents submitted that even inconsistent pleas can be raised by the defendant in the written statement although, the same may not be permissible in the case of the plaint. In this regard, the learned counsel has relied upon the decision of the Hon'ble Supreme Court in the matter of “Baldev Singh & Ors. vs. Manohar Singh & Anr.”, 2006(6) SCC, 498. The learned counsel submitted that after due consideration of the facts and circumstances of the case, the learned trial court has arrived at the finding that the amendment sought for does not change the nature of the dispute and for the complete and effectual adjudication of the dispute, it is absolutely necessary to permit 3 the amendment sought for,therefore, the sound judicial discretion exercised by the learned trial court should not be interfered with by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. In this regard, the learned counsel has relied upon the decision of the Hon'ble Supreme Court in the matter of “Sadhana Lodh vs. National Insurance Co. Ltd.” 2003(3) SCC, 526. Replying the arguments of the learned counsel appearing on behalf of the petitioner regarding applicability of the provisions of Order VI Rule 17 as amended by the Act of 2002, it is submitted by the learned counsel for the respondent that the written statement in the matter was filed on behalf of the defendants on 20.5.99 , therefore, the amended provisions of Order VI Rule 17 shall not apply to the pleadings filed prior to coming into force of the Act of 2002. In this regard, the learned counsel has relied upon the decision of the Hon'ble Supreme Court in the matter of “S.B.I. Hyderabad vs. Town Municipal Council”, 2007 DNJ(SC), 183. 4. I have considered the rival submissions and perused the material on record. 5. In the first instance,it will be appropriate to consider the rival submissions of the parties with regard to the applicability of the provisions of Order VI Rule 17 as amended by the Act of 2002. 6. It is to be noticed that as per the proviso appended to 4 Order VI Rule 17 of CPC by the Act of 2002, no application for amendment of the pleadings shall be allowed after the trial has commenced unless, the court comes to the conclusion that inspite of due diligence,the party could not have raised the matter before the commencement of the trial. 7. The question with regard to applicability of the proviso to Order VI Rule 17 to the applications preferred for amendment of the pleadings prior to commencement of the Amendment Act, 2002 was considered by this Court in the matter of “Kunana Ram vs. L.Rs.Magna Ram & Ors.” (S.B.Civil Writ Petition No.8126/08) , decided on 16.10.08 wherein after due consideration this court held as under: “15. It is pertinent to note that Order VI Rule 17 providing for the amendment of the pleadings is a procedural law and the parties to the proceedings have no vested right in the matters of procedure. The procedural law are generally held to be retrospective and therefore, they apply to all future and pending matter. Thus, on the strength of the provisions of Order VI Rule 17 as they were existing prior to the CPC(Amendment)Act, 2002, the parties to the proceedings cannot claim any vested right of amendment of the pleadings ignoring the new proviso to Rule 17 of Order VI inserted vide CPC(Amendment) Act, 2002. In considered opinion of this Court, the provisions of Order VI Rule 17 as amended by the CPC (Amendment) Act, 2002 is invoked by the court for deciding the applications preferred for amendment of the pleadings in the pending mattes, after coming into force of the said Act then, it cannot be said that the provision is being applied retrospectively. As a matter of fact, all applications for amendment of the pleadings filed by the parties to the suit or other proceedings, 5 after coming into force of the amendment provisions of Order VI Rule 17, have to be disposed of by the courts strictly in accordance with the amended provisions. Thus, in the considered opinion of this Court , the aforesaid contention of the learned counsel is also devoid of any merit.” 8. However, the conclusion as aforesaid was drawn by this court in ignorance of the provisions of Section 16(2)(b) of the Act of 2002, which reads as under:- “16(2) Notwitstanding that the provisions of this Act have come into force or repeal under sub- section(1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897- (a) ****** (b) the provisions of Rules 5, 15 , 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure(Amendment) Act, 1999 and Section 7 of this Act.” 9. A bare perusal of the aforesaid provisions goes to show that the proviso to Order VI Rule 17 inserted by the Amendment Act, 2002 shall not apply to the pleadings filed before the commencement of Section 16 of the Code of Civil Procedure(Amendment) Act 1999 and Section 7 of the Amendment Act, 2002. Moreover,considering this aspect of the matter, the Hon'ble Supreme Court in State Bank of Hyderabad's case(supra), wherein the amendment sought for was related to the suit having been filed in the year 1998 has held that proviso 6 to Order VI Rule 17 shall not apply. 10. Thus, I have no hesitation in holding that the view taken by this Court as aforesaid in Kunana Ram's case (supra) , oblivion of the provisions of Section 16(2) of the Act of 2002 is per incuriam and has no binding effect. 11. Adverting to the facts of the present case, it is to be noticed that the written statement sought to be amended by the defendant-respondent was filed on 20.5.99 therefore, in view of the provisions of Section 16(2)(b) of the Amendment Act, 2002 proviso to Order VI Rule 17 shall not apply and the application preferred by the defendant seeking leave to amend the written statement was required to be dealt with by the learned trial court keeping in view the provisions of Order VI Rule 17 as existing prior to coming into force of the Amendment Act, 2002. 12. The next contention of the learned counsel for the petitioner is that by way of amendment of the written statement, the defendants cannot be permitted to raise inconsistent pleas and substitute or alter the defence already taken. It is pertinent to note that in the written statement filed, the defendants have taken the stand that the disputed property was purchased by their father for the HUF , however, since their father was not having sufficient fund therefore, an amount of Rs.8,000/- was paid to the vendor Shri Ganesh Balai by the plaintiff Shri Radhey Shyam. However, by way of amendment of 7 the written statement on the strength of the agreement dated 3.2.70 discovered subsequently, the defendants have taken the stand that it was agreed upon by Shri Radhey Shyam that on payment of Rs.8,000/-, he will transfer the property in favour of the defendants namely, Sanwar Mal, Chaman Lal and Shyam Sunder. Thus,the stand sought to be taken by the defendants by way of amendment in no manner alters or substitute the stand already taken by the defendants. Likewise, it cannot be said that leave to amend written statement granted in favour of the defendants amounts to permitting them to take inconsistent pleas. As a matter of fact, the amendment sought for is only an elaboration of the defence already set out by the defendants in the written statement. Moreover, as laid down by the Hon'ble Supreme Court in Baldev Singh's case (supra), even inconsistent pleas can be raised by the defendant in the written statement although, the same may not be permissible in case of the plaint. In this view of the matter, the contention raised by the learned counsel for the petitioner as aforesaid is devoid of any merit. 13. Lastly , coming to the contention of the learned counsel for the petitioner that the learned trial court was not justified in permitting the amendment sought for at such a belated stage when the matter is fixed for rebuttal evidence , suffice it to say that an application seeking amendment sought for cannot be rejected solely on the ground of delay. In this regard, the 8 reliance may be placed on the decisions of the Hon'ble Supreme Court in the matter of “Sampath Kumar vs. Ayyakannu & Anr.”, AIR 2002 SC3369 and “Pankaja & Anr. vs. Yellappa(Dead) by Lrs. & Ors.”, 2004 DNJ(SC), 826. 14. In Sampath Kumar's case(supra), the Hon'ble Supreme Court considering the question of delay in moving an application for amendment , observed as under:- “9. Order 6, Rule 17 of the CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting-forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait- jacket formula can be laid down . The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.” 15. In Pankaja's case supra, the Hon'ble Apex Court while dealing with the scope of court's jurisdiction to allow an amendment, the Hon'ble Supreme Court observed as under:- “12. So far as the Court's jurisdiction to allow an amendment of pleadings is concerned, there can be 9 no two opinions that the same is wide enough to permit amendments even in cases where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held that the dominant purpose of allowing the amendment is to minimise the litigation, therefore, if the facts of the case so permit, it is always open to the court to allow applications in spite of the delay and laches in moving such amendment application. 13. But the question for our consideration is whether in cases where the delay has extinguished the right of the party by virtue of expiry of the period of limitation prescribed in law, can the Court in the exercise of its discretion take away the right accrued to another party by allowing such belated amendments. 14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserve the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.”(emphasis added) 16. Thus, the legal position settled by the Hon'ble Apex Court as above, makes it abundantly clear that the Order VI Rule 17 as it was existing prior to the amendment of Civil Procedure Code ,(Amendment )Act , 2002 empowers the court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as deemed fit by the court. The application seeking amendment cannot be rejected solely on 10 the ground of delay. However, the discretion vested in the court to allow the amendment of the pleadings at any stage of the trial or even at the appellate stage has to be exercised judicially. Whether an amendment is to be allowed in a particular case or not has to be decided by the court after examining the facts and circumstances of the case in their entirety. 17. In the instant case, having considered the pleading of the parties, this Court is of the considered opinion that the amendment sought for is necessary for effective and complete adjudication of the lis between the parties.It goes without saying that if the defendants are permitted to lead further evidence in view of the amendment incorporated then, the plaintiff will have right to lead evidence in rebuttal, therefore, apparently, no serious prejudice is likely to be caused to the plaintiff. 18. In view of the discussion above, the judicial discretion exercised by the learned trial court does not warrant interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 19. In the result, the writ petition fails, it is hereby dismissed. No order as to costs. (SANGEET LODHA),J. Aditya/-