IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CMPMO No.297 of 2008 Date of Decision : 22.7.2009 Ram Swaroop …Petitioner. Versus: Khalil Mohammad & Ors. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, J. Whether approved for reporting?1 No For the petitioner: Mr. R. K. Gautam, Sr. Advocate with Mr. Mehar Chand, Advocate. For the respondents: None Sanjay Karol, J. (Oral) The petitioner herein has assailed the impugned order dated 28.7.2008 passed by the Civil Judge (Jr. Division), Court No.II, Paonta Sahib, Distt. Sirmaur, H.P. in CMA No. 116/6 of 2008 filed in Civil Suit No.119/1 of 2005, whereby his application filed under Order 6 Rule 17 CPC stands rejected. The plaintiffs (respondents herein) filed a suit for possession against the defendant (petitioner herein) with respect to the suit premises, admittedly in possession of the defendant. The defendant seriously contested the suit, inter alia, 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 on the ground that the plaintiffs had gifted the suit land to the defendant in the year 2002, when the defendant was put into actual possession of the suit premises. Where after, he constructed a residential house and started residing therein without any hindrance. The written statement was filed on 9th December, 2005. Before the plaintiffs could conclude their evidence, on 12.12.2007 the defendant moved an application under Order 6 Rule 17 CPC seeking amendment of the written statement and more specifically in para-1 incorporating the following pleas: “That the plaintiff and the defendant had agreed to solve the matter of the construction of the house in an amicable manner through the medium of the Local Panchayat under the Chairmanship of the President Shri Baljeet Singh, wherein on 20.1.07 the members Panchayat had got the plaintiff agreed that the house was built by the defendant in the circumstances mentioned above and the plaintiff shall pay an amount of Rs.2,10,000/- to the defendant before 15.2.2007 as the cost of the house and upon which it will be handed over to the plaintiff and the plaintiff had readily agreed to the same though the defendant was clearly at a disadvantage but under the pursuation of the Panchayat, he also agreed to the same. The compromise agreement was duly signed but the plaintiff again became dishonest and resiled from the agreement. This shows and proves that the house built by the defendant has been built under the circumstances mentioned in the preceding paragraph.” 3 In terms of the said application, the defendant wanted to substitute his earlier stand that “the plaintiffs had gifted the suit land to the defendant in the year 2002”. The trial Court, in terms of the impugned order dismissed the application on the ground that the proposed amendment would change the nature and character of the stand taken in the written statement and also no documentary proof in respect of the proposed amendment was placed on record to substantiate the plea. Notices issued to the respondents herein, were served upon them. However, they have chosen not to cause appearance. Hence, the matter is being heard in their absence. Mr. R. K. Gautam, learned senior counsel has invited my attention to the ratio of law laid down by the Apex Court in Usha Balashaheb Swami vs. Kiran Appaso Swami (AIR 2007 SC 1663). The relevant paragraph of the said report, necessary for adjudication of the controversy in issue, is reproduced as under:- “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 4 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. 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 (2000(1) SCC 712) and Baldev Singh & Ors. v. Manohar Singh (2006 (6) SCC 498)]. Even the decision relied on by the plaintiff in Modi Spinning (supra) 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 (Dead) [1995 Supp (3) SCC 179].” Keeping in view the aforesaid principle of law laid down by the Apex Court, the reason for rejecting the application is totally unsustainable in law. The Court was dealing with the case of an amendment of a written statement and not the plaint. In a case of amendment of written statement, it is open to the defendant to take a new ground of defence or substitute or alter the defence which is inconsistent with the earlier plea. Mr. Gautam is right in contending that the Court below erred in not appreciating the ratio of law laid down by the various Courts in the judgments referred to, during the course of 5 the hearing. Perusal of the impugned order evidently reflects the said fact. Further, the correctness of the pleas which are now sought to be taken, is to be considered during trial and not at the stage of deciding the application for amendment. The plea taken by the defendant could have been proved even by leading oral evidence. The application was filed without any delay and even before the completion of the plaintiffs’ evidence. It cannot be said that the application was filed on flimsy grounds and with the sole object of delaying the suit. The amendment is necessary for adjudication of the controversy in issue. For the aforesaid reasons, the impugned order dated 28.7.2008 is set aside. The application filed by the plaintiffs under Order 6 Rule 17 CPC is allowed. The parties are directed to appear before the trial Court on 25.8.2009. The amended written statement be filed within four weeks from today. Record be sent back along with a copy of this order immediately to the trial Court. CMP No.717/2008 In view of the disposal of the main matter, this application also stands disposed of. ( Sanjay Karol ), Judge. July 22, 2009. (rana)