IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revision No.79 of 2007 Date of Decision: 27.5.2008 ________________________________________________________________ Sh.Krishan Lal … Petitioner Versus Smt.Ganga Devi and others … Respondents. ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? Yes For the Petitioner (s) : Mr. Romesh Verma, Advocate. For the Respondents : Mr. Vishal panwar, counsel for R-1. Mr.G.S.Rathore, counsel for respondent Nos.4 to 9. ________________________________________________________________ Deepak Gupta, J. (Oral ). This petition is directed against the order of the learned Civil Judge (Senior Division), Solan dated 9.5.2007 whereby he has rejected the application filed by the petitioner (hereinafter referred to as the defendant No.1) for amendment of the written statement. Briefly stated, the facts of the case are that Smt.Ganga Devi filed a suit against the petitioner Krishan Lal and Man Singh. Later on one Ramesh Chand who had derived title from the defendant Man Singh was also impleaded as defendant No.3. According to the plaintiff she is the daughter of Smt.Vidya Devi widow of Shri Shankar and 2 defendant No.2 is her brother and she and defendant No.2 are the only natural heirs of deceased Vidya Devi entitled to inherit the suit land in equal shares. Defendant No.1 filed a written statement in which he alleged that he was also the son of Smt.Vidya Devi from the loins of Sh.Shankar and the natural heir of Vidya Devi and Shankar. However, according to him he had been adopted by Daulat Ram @ Daulia real brother of Shankar and therefore in the record he was shown as the son of Daulat Ram. According to him being the natural heir of Shankar and Vidya he was entitled to succeed to her estate. Further defendant No.1 set up a plea that Smt.Vidya Devi had executed a Will on 17.8.1996 whereby she had bequeathed her properties in favour of both the defendants Krishan Lal and Man Singh in equal shares. Man Singh in his written statement set up a plea that in fact the last will of Smt.Vidya Devi was dated 16.10. 1992 whereby Smt.Vidya Devi had willed her entire property in his favour. Defendant No.1 also filed a counter claim praying for a declaration that he alongwith defendant No.2 have succeeded the property of Vidya Devi in equal shares. On the other hand Man Singh defendant No.2 also filed a counter claim on the basis of a 3 Will dated 16th October, 1992 praying for a declaration that he is the sole heir of Vidya Devi. The case was contested on various grounds and various issues were framed. The plaintiff also amended the plaint. The defendant No.1 was proceeded against ex- parte. After a long time he moved an application for setting -aside the ex-parte order which was allowed and the ex- parte proceedings set aside. He filed the present application for amendment of the written statement out of which the present proceedings arise. By means of the amendment the petitioner wants to set up an additional plea that despite having been adopted by Daulat Ram he being the natural heir of Vidya Devi in accordance with the custom of the area, he cannot be deprived of his share in the agricultural land of his natural parents. This application was rejected by learned trial Court mainly on the ground that the application for amendment has been filed after the commencement of the trial and as such this amendment cannot be allowed since defendant No.1 had failed to show that he had acted with due diligence. The learned trial Court while rejecting the application has relied upon a judgment of the Hon’ble 4 Single Judge of this Court in Jeet Ram Kishore vs. Sunder Singh, 2004(2)Shi.L.C. 80. The question that arises is as to whether proviso to Order 6 Rule 17 as introduced by the Code of Civil procedure (Amendment) Act, 2002 is applicable to the present case or not. Order 6 rule 17 as amended reads as follows: “17.Amendment of pleadings.-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” There is no change by the amendment to the main provision of the Rule. However, by means of amendment brought in by the Amendment Act of 2002, a proviso has been incorporated which provides that no Court shall allow an amendment unless it comes to the conclusion that despite due diligence a party could not have raised the matter before commencement of trial. Admittedly, this proviso was incorporated w.e.f. 1.7.2002. In the present case the suit was filed before the said date. This question is no longer res integra. The Apex 5 Court in State Bank of Hyderabad vs. Town Municipal Council, (2007) 1 SCC 765 has clearly held that the amended provisions of Order 6 rule 17 CPC will not apply to those cases where the pleadings were filed before 1.7.2002. The order of learned District Judge in so far as it holds that the application is hit by the proviso is not legally correct. The Supreme Court time and again has laid down that the approach of the Courts while considering the applications for amendments of the written statement has to be very liberal. The Apex Court in Rajesh Kumar Aggarwal and others vs. K.K. Mod and others, (2006) 4 SCC 385, has held that the Court must allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. The Apex Court held that real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties. In case Baldev Singh and others vs. Manohar Singh and another, (2006) 6 SCC 498 the apex Court held that a defendant can be permitted to add a new ground of defence or substitute or alter a defence and in that sense the scope of amendment of written statement is much wider 6 than that of amending a plaint. The Apex court also held that the Courts should be more liberal while allowing the amendment of a written statement. The law with regard to the amendment has been crystallized in the latest judgment of the Apex court in Usha Balashaheb Swami and others vs. Kiran Appaso Swami and others, (2007) 5 SCC 602, wherein the apex Court held as follows: “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, 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 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 bonafide one. In this connection, the observation of the Privy Council in the case of Ma Shwe Mya v. Maung Mo Hnaung [AIR 1922 P.C. 249] may be taken note of. The Privy Council observed: "All rules of courts 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 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." (Underlining is ours) 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 7 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………… 21………… 22. Keeping these principles in mind, namely, that in a case of amendment of a written statement the Courts would be more liberal in allowing than that of a plaint as the question of prejudice would be far less in the former than in the latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed, we may now proceed to consider whether the High Court was justified in rejecting the application for amendment of the written statement.” In the present case, by amendment defendant No.1 is not in any manner changing the nature of the suit or raising a defence which is inconsistent with the pleas taken by him in the original plaint. He no doubt is setting up a new defence that there is a custom under which he is entitled to inherit the property of his natural parents. However, this does not change the nature of the suit and therefore, in my opinion, following the law laid down by the Apex court as detailed hereinabove there is no other option but to allow the petition. However, I have found from the record that the defendant No.1 has been prolonging the matter for a long time. Precious time of the Court and the parties has been wasted which time could have been saved if the defendant 8 No.1 had pleaded these facts in the original written statement or sought this amendment at an early stage. However, the other parties can be compensated for the delay by payment of costs. The amendment is, therefore, allowed subject to payment of Rs.5000/- as costs to be shared equally by the plaintiff and defendant No.2. In case the costs are not paid the petitioner shall not be allowed to amend the written statement. After the amendment is allowed the plaintiff and defendant No.2 shall also be given adequate opportunity to amend their pleadings. Additional issues, if any, arise may also be framed. Defendant No.1 only be given two opportunities to lead his evidence. This order is being passed in view of the various delaying tactics employed by defendant No.1 and the fact that the suit was filed more than 10 years back. Needless to say that after the defendant No.1 produces his evidence if any, the plaintiff and defendant No.2 shall also have the right to produce their evidence in support of their case. The petition is disposed of in the aforesaid terms. May 27, 2008. ( Deepak Gupta ),J. PV