W.P.No.5417 of 2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.5417 OF 2010 1. Krishnadas s/o Govinddas Ramayya, Age 63 years, Occu.Business, R/o Moulana Azad Chowk, Vaijapur, Taluka Vaijapur, District Aurangabad 2. Rajendra s/o Govinddas Ramayya, Age 57 years, Occu.Business, R/o Moulana Azad Chowk, Vaijapur, Taluka Vaijapur, District Aurangabad ..PETITIONERS (Original Defendants ) VERSUS Nagindas s/o Rangildas Bhatiya, Age 68 years, Occu.Agril., R/o Shrikrishna Mandir Road, Vaijapur, Taluka Vaijapur, District Aurangabad ..RESPONDENT (Original Plaintiff ) Mr P.F.Patni, Advocate for petitioners Mr A.D.Kasliwal, Advocate for respondent CORAM : SMT.NISHITA MHATRE, J. DATE : 31st March 2011 ORAL JUDGMENT 1. Rule, returnable forthwith, by consent. 2. The petition has been preferred against the order passed by the 2nd Joint Civil Judge Junior Division, Vaijapur on 2.11.2009. W.P.No.5417 of 2010 2 By this order, the application filed by the petitioners for amending their written statement has been rejected with costs of Rs.200/-. The suit filed before the Civil Judge, Junior Division, Vaijapur is for recovery of damages. The suit has been filed by the respondent on 31.12.2007. The written statement was filed by the petitioners on 16.6.2008. Various contentions have been raised by the petitioners in their written statement. It appears that the affidavit in examination-in-chief has been filed by the respondent No.1. After filing of this affidavit, the petitioners preferred an application for amending their written statement on 23.3.2009. By this amendment application the petitioners wished to take up the defence that they were in adverse possession of the suit property and, therefore, the suit was barred by limitation. 3. The trial Court has dismissed the application for amendment on the ground that it was delayed. 4. The learned Advocate for the petitioners submits that all that the petitioners wanted to ensure was that all the pleadings and the defences, which the petitioners desired to raise were incorporated in the written statement. He submits that although it was the contention of the petitioners in the eviction suit filed against them that they were tenants of the suit property, the respondent No.1 did not accept their contention and had, in fact, W.P.No.5417 of 2010 3 filed an appeal against the judgment and order of the trial Court. That eviction appeal is pending before the appellate Court. The learned Advocate, therefore, submits that the trial Court has completely erred in deciding that the amendment sought by the petitioners could not be allowed because of the delay in filing such an application. He relies on the judgments of the Supreme Court in the case of Usha Balasaheb Swami and others Vs. Kiranappaso Swami and others. reported in 2007 (5) SCC 602 and Andhra Bank Versus ABN Amro Bank N.V. and others, reported in 2007 (6) SCC 167. 5. The learned Advocate for respondent No.1 submits that the petitioners cannot be permitted to raise a new plea by amending their written statement, especially because it is contrary to the contentions raised in the earlier suit, namely that they were tenants of the respondent No.1. He submits that in no case can there be an adverse possession by a tenant and, therefore, such a plea cannot be raised by an amendment. Apart from this, the learned Advocate for respondent No.1 submits that the plea has been raised only to delay the proceedings. According to him, the suit has been filed for damages as the petitioners are in illegal occupation of the suit property. He submits that similar suits had been filed by the respondent No.1, claiming damages for various periods. These suits have been decreed. The petitioners had W.P.No.5417 of 2010 4 raised the defence that they were tenants of the respondent No. 1. In these circumstances, according to the learned Advocate there is no need to grant any relief to the petitioners in the present writ petition. He also relies on the judgment of the Supreme Court in the case of Vidyabai and ors. vs. Padmalatha and anr., reported in 2009 (4) Mh.L.J. 30 in support of his submission that the petitioners have not shown due diligence in order to avail of the provision for amendment of the written statement. 6. It is, no doubt, true that the petitioners had raised the defence in earlier proceedings that they were tenants of the suit property. The petitioners have raised this plea in the present case also. However, in my opinion such an amendment ought to have been allowed because there is no bar for contrary pleas to be taken by the defendant. Apart from this, as held by the Supreme Court in the aforesaid cases of Usha Balasaheb Swami and Andhra Bank, the principles applicable for amendment of plaints and written statements are different. In the case of Usha Balasaheb Swami, the Apex Court has held thus : 17. 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, W.P.No.5417 of 2010 5 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. 18. It is now well settled by various decisions of this Court as well as those by the 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 bona fide one. In this connection, the observation of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung may be taken note of. The Privy Council observed : (IA pp.216-17) “All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no W.P.No.5417 of 2010 6 power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit.” 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. 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 (see B.K. Narayana Pillai v. Parameswaran Pillai and Baldev Singh v. Manohar Singh). Even the decision relief on by the plaintiff in Modi Spg. clearly recognises that inconsistent pleas can be taken in the pleadings. In this context, we may also refer to the decision of this Court in Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary. In that case, the defendant had initially W.P.No.5417 of 2010 7 taken up the stand that he was a joint tenant along with others. Subsequently, he submitted that he was a licensee for monetary consideration who was deemed to be a tenant as per the provisions of Section 15-A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This Court held that the defendant could have validly taken such an inconsistent defence. While allowing the amendment of the written statement, this Court observed in Basavan Jaggu Dhobi case as follows : (SC p.180, para 3) “3. As regards the first contention, we are afraid that the courts below have gone wrong in holding that it is not open to the defendant to amend his written statement under Order 6 Rule 17 CPC by taking a contrary stand than what was stated originally in the written statement. This is opposed to the settled law. It is open to a defendant to take even contrary stands or contradictory stands, thereby the cause of action is not in any manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action.” Therefore, the approach of the Courts while considering whether an amendment to a written statement should be permitted should be liberal. The Apex Court has observed that technicalities of law should not be permitted to hamper the Courts in the administration of justice between parties. W.P.No.5417 of 2010 8 7. Thus, in my view the amendment sought by the petitioners ought to have been allowed. It is well settled that the defendant is not barred from raising contradictory pleas in the written statement. The trial Court has thus erred in rejecting the amendment application. 8. The ground on which the amendment has been refused is that there was a delay in preferring the application for amendment. In the case of Andhra Bank (supra), the Apex Court has observed that it was well-settled that delay was no ground for the refusal of a prayer for amendment of a written statement. In fact, the Court has observed that while considering whether an amendment should be permitted to the pleadings, the Court cannot go into the question of the merit of such an amendment. The only issue to be considered is whether the amendment would be necessary for a decision of the real controversy between the parties to the suit. In the present case, therefore, in my opinion, the trial Court has erred in rejecting the application for amendment only because it was filed nine months after the written statement was taken on record. 9. In the case of Vidyabai and others, the Apex Court has observed that while permitting amendment to a written statement, the Court must consider whether there has been due W.P.No.5417 of 2010 9 diligence on the part of the parties. This judgment in the case of Vidyabai and others does not consider the judgments in the case of Usha Balasaheb Swami as well as Andhra Bank. However, after taking into account the observations in the judgment of Vidyabai and others, in my opinion, the petitioners have made out a case to have their written statement amended. Granting the amendment would not, in any manner, reflect upon the defence raised by the petitioners by the amendment application. The trial Court has exceeded its jurisdiction by refusing the amendment application on the ground that it was delayed. 10. Accordingly, the writ petition is allowed. Impugned order is set aside. The amendment application filed by the petitioners is allowed. The amendment shall be carried out by the petitioners within two weeks from today on payment of costs of Rs.200/- to the respondent No.1. Costs are condition precedent. 11. Rule made absolute accordingly. ( SMT. NISHITA MHATRE, J.) (vvr/5417.10wp)