1 903 wp 3249.11.doc srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3249 OF 2011 Saraswati Shikshan Sanstha & Anr. ... Petitioners. vs. Shri Vijay Ramrao Pawar & Anr. ... Respondents. Mr. Mayuresh S. Lagu for the petitioner. Mr. A.M.Joshi for respondent no.1. CORAM : K.K.TATED,J DATE : 24/06/2011 PC: 1 Heard the learned counsel for the petitioner and the learned counsel for respondent no.1. 2 Rule. 3 Rule made returnable forthwith. 4 It is not necessary to issue notice to respondent no.2 i.e. Education Officer (Secondary), Zilla Parishad, 2 903 wp 3249.11.doc Pune as he is a formal party. The main dispute is between the Petitioner-management and Respondent no.1- teacher. 5 By this petition under Articles 226 and 227 of the Constitution of India, Petitioner - original Respondents no.1 and 2 challenge the order dated 3rd March, 2011 passed by the learned Presiding Officer, School Tribunal, Pune Region, Pune, rejecting their application dated 24th December, 2010 for amendment of written statement dated 21st August, 2010. 6 A few facts of the matter are as under: Respondent no.1 preferred an Appeal under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 before the School Tribunal, Pune Region at Pune for setting aside the termination of service of the Respondent no.1 from 14th June, 2010 and to direct the Petitioner- management to reinstate him in service from the date of termination and also claimed full back wages 3 903 wp 3249.11.doc from the date of termination till his actual reinstatement in the service. In the said Appeal the Petitioners appeared party in person and filed their written statement dated 21st August, 2010. Thereafter, the Petitioners made an application before the Tribunal under Rule 43 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 for seeking permission to appoint advocate on their behalf. Thereafter, as per the advice from the advocate, Petitioners filed an application (dated 24th December, 2010) for amendment to the written statement. The Respondent no.1 filed reply on 14th January, 2011 and opposed the said application. After hearing both the sides, the learned Presiding Officer, School Tribunal, Pune Region, Pune rejected the Petitioners’ application for amendment and therefore, the present writ petition. 7 The learned counsel appearing on behalf of Petitioner submits that the impugned order dated 3rd March, 2011 passed by the learned Presiding Officer, School Tribunal, Pune Region, Pune is against justice 4 903 wp 3249.11.doc equity and good conscience and against the law and the same is liable to be set aside. He submits that the Tribunal ought to have noted that under Order VI Rule 17 of the Civil Procedure Code, the Tribunal is empowered at any stage of the proceeding to allow to amend the pleadings. He further submits that the Tribunal failed to appreciate that the Petitioners after taking advice from their advocate decided to amend the written statement. Initially when they filed the written statement dated 21st August, 2010 in paragraph 3 it has been specifically submitted that the Respondent no.1 approached the Head Mistress of the School and stated that he was getting a job in an other institution and therefore, he required a character certificate and the same was issued. He submits that the initial written statement dated 21st August, 2010 was filed by them and they appeared before the Tribunal party in person. After engaging advocate and after his advice they preferred application for amendment of the written statement and thereby they wanted to state in the written statement that the Respondent no.1 himself 5 903 wp 3249.11.doc resigned from the said post. He submits that the learned Presiding Officer failed to appreciate that written statement can be amended at any stage before final decision of the matter. In support of his submission he relies on judgment in the matter of Sushil Kumar Jain vs. Manoj Kumar and another reported in (2009) (14) S.C.C. 38. In that case, the Apex Court held that under Order VI Rule 17 of the Civil Procedure Code, 1908 written statement can be amended at any stage before the matter is decided. Paragraph nos. 12, 13, 14 and 18 of the judgment reads as under: “12. In our view, having considered the averments made in the application for amendment of the written statement, it cannot be said that in fact neither any admission was made by the appellant in his original written statement nor had the appellant sought to withdraw such admission made by him in his written statement. That apart, a careful reading of the application for amendment of the written statement, we are of the view that the appellant seeks to only elaborate and clarify 6 903 wp 3249.11.doc the earlier inadvertence and confusion made in his written statement. Even assuming that there was admission made by the appellant in his original written statement, then also, such admission can be explained by amendment of his written statement even by taking inconsistent pleas or substituting or altering his defence. 13. At this stage, we may remind ourselves that law is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. “15 .... Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering, substituting a new cause of action.” (See Baldev Singh vs. Manohar Singh, SCC p.504, para 15) Similar view has also been expressed in Usha Balashaheb Swami Vs. Kiran Appaso Swami. 14. It is equally well settled that (SCC p.609, para 22) in the case of an amendment of a written statement, 7 903 wp 3249.11.doc "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." 18. Referring to the proviso to Order 6 Rule 17 CPC, the learned counsel for the respondents argued that the proviso clearly bars that any application for amendment either of plaint or of written statement can be allowed after 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 the trial. Therefore, the learned counsel for the respondents submitted that in view of the proviso to Order 6 Rule 17 CPC, the High Court as well as the Rent Controller had acted within their jurisdiction in rejecting the application for amendment of the written statement on the ground that the trial had already commenced and therefore, no interference can be made in respect of the same. We are 8 903 wp 3249.11.doc unable to agree with this submission of the learned counsel for the respondents.” 8 On the basis of these submissions, the learned counsel appearing on behalf of the Petitioners’ submits that the impugned order passed by the learned Presiding Officer dated 3rd March, 2011 below Exhibit 24 in Appeal no.36 of 2010 is liable to be set aside and their application for amendment of written statement dated 24th December, 2010 (Exhibit 24) needs to be allowed. He submits that if their petition for amendment is not allowed they will cause irreparable loss and injury would be caused to them. 9 On the other hand, the learned counsel appearing on behalf of respondent no.1 – original Appellant vehemently opposed the present writ petition. He submits that there is no substance in the present writ petition and the same is liable to be dismissed. 10 It is submitted that the learned Presiding Officer after over all consideration held that the Petitioners are 9 903 wp 3249.11.doc not entitled to amend the written statement. He submitted that initially when the Petitioners filed the written statement dated 21st August, 2010 no where raised the issue of the resignation of the Respondent no.1. First time in the proposed amendment to the written statement they raised the issue about resignation of the Respondent no.1. He submits that they have not raised the issue about the resignation in their initial written statement. It amounts to complete change of said defence by the Petitioner. He further submits that the Petitioner cannot change the defence altogether amending their written statement by inserting the defence which was already available to them at the time of filing their written statement. He further submits that Petitioner cannot take a contrary stand by amending the written statement later on. In support of this submission, he relies on the judgment in the matter of M/s Modi Spinning & Weaving Mills Co.Ltd. And Another vs. M/s. Ladha Ram & Co. reported in (1976) 4 SCC 320. In that case, the Apex 10 903 wp 3249.11.doc Court held that amendment of written statement cannot be allowed when the effect would be to displace the plaintiff’s suit and deprive him of a valuable right already accrued to him. 11 I have gone through the copy of written statement dated 21st August, 2010 and the application filed by the Petitioner dated 24th December, 2010 for amendment of written statement, the reply filed by the Respondent opposing the same dated 14th January, 2011 and the impugned order dated 3rd March, 2011. After going through the impugned order passed by the learned Presiding Officer, it is clear that the learned Presiding Officer has taken the view that once the trial has commenced in view of proviso to the Order VII Rule 17 of the Civil Procedure Code, amendment of the pleading cannot be allowed. This view of the learned Presiding Officer is not maintainable in view of the judgment of the Apex Court in the matter of Sushil Kumar Jain (supra). The learned Presiding Officer rejected the Petitioner’s Application for amendment also on the 11 903 wp 3249.11.doc ground that at the time of filing written statement dated 21st August, 2010, the Petitioner had not raised the ground of resignation in their written statement and therefore, same cannot be allowed by way of amendment. I do not find any substance in this view of the learned Presiding Officer. Initially, Petitioner filed the written statement dated 21st August, 2010, when they appeared before the Tribunal party in person. Later on, they made an application to the Tribunal to grant them time to engage an advocate. After taking advice of the advocate, they made an application for amendment of the written statement and for placing the additional documents on record, including a copy of the resignation tendered by the Respondent no.1. 12 It is to be noted that the Apex Court in the matter of Usha Balasaheb Swami and others vs. Kiran Apparao Swami and others reported in 2007 (5) Mh.L.J. 593, held that addition of new ground of defence or substituting or altering a defence or taking 12 903 wp 3249.11.doc 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. Para no. 19 and 20 of the judgment reads thus: “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 13 903 wp 3249.11.doc 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. In that case, the defendant had initially 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 15A 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's case (supra) as follows :- 14 903 wp 3249.11.doc "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 statement under Order 6, Rule 17, Civil Procedure Code by taking a contrary stand than was stated originally in the written statement. This is opposed to the settled law open to a defendant to take even contrary stands or contradictory stands, 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." 13 Considering these facts and submissions made by the learned counsel appearing on behalf of Petitioner, Petition is allowed. Impugned order dated 3rd March, 2011 passed by the learned Presiding Officer, School Tribunal, Pune Region, Pune below Exhibit 24 in Appeal no.36 of 2010 rejecting the Petitioners’ application for amendment of written statement dated 24th December, 2010 is set aside. 15 903 wp 3249.11.doc 14 Petitioner’s application dated 24th December, 2010 for amendment of the written statement dated 21st August, 2010 is allowed. 15 Petitioner to carry out amendment within eight weeks from today and to serve amended copy on the respondent-original appellant. 16 No order as to costs. (K.K.TATED,J.)