Allowed

Balsrang Arengh and 2 Ors. v. Dinesh Kumar Mittal and 3 Ors.

Gauhati HC22 Nov 2019CRP(IO)/184/2017

Case brief

AI extract

What is this about?

This High Court disposed of a revision petition against a civil judgment rejecting an amendment application. The trial court dismissed the petition due to delay after trial started. This court held that delay is not fatal when the amendment supplements defences already pleaded in a prior related counter-claim and relies on Andhra Bank case law. The impugned judgment was set aside and the amendment

What did the court decide?

Impugned order set aside; amended written statement to be accepted after fixing a specific date for filing; plaintiffs allowed to file additional evidence on affidavit.

Balsrang Arengh and 2 Ors. Vs Dinesh Kumar… — Civil Procedure and Limitation | Gauhati HC (2019)

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GAHC010271562017

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP(I/O) 184/2017

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1:BALSRANG ARENGH AND 2 ORS R/O- GDC GUEST HOUSE, POLOFOREST COLONY, SHILLONG- 793001, MEGHALAYA

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2: SHEBANISH ARENGH R/O- GDC GUEST HOUSE POLO FOREST COLONY SHILLONG- 793001 MEGHALAYA

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3: SEVEN SISTERS PLASTICS PRIVATE LIMITED VILL- AMJOK UMTRU POWER HOUSE ROAD BYRNIHAT DIST- RI BHOI- 79310

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VERSUS

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1:DINESH KUMAR MITTAL and 3 ORS. S/O- SRI HUKUMCHAND MITTAL, R/O- 3-E, ASTHA APARTMENT, SUHAGPUR, REHABARI, GUWAHATI- 781008, DIST- KAMRUP METRO, ASSAM

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2:SRIMATI SEEMA MITTAL W/O- SRI DINESH KUMAR MITTAL R/O- 3-E ASTHA APARTMENT SUHAGPUR REHABARI GUWAHATI- 781008 DIST- KAMRUP METRO ASSAM

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3:STATE BANK OF INDIA

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LOCAL HEAD OFFICE DISPUR GUWAHATI- 781006 REP. BY ITS CHIEF GENERAL MANAGER 4:THE CHIEF MANAGER STATE BANK OF INDIARM-ME CAMP KHANAPARA 1ST FLOOR KHANAPARA- 781022 DIST- KAMRUPM ASSAM 5:THE CHIEF MANAGER STATE BANK OF INDIA BYRNIHAT- 793101 DIST- RI-BHOI MEGHALAYA 6:SRI PUNAM CHAND SHARMA R/O- DUDHNOI GOALPARA PIN- 783124 ASSA

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Advocate for the Petitioner : MS K GOSWAMI

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Advocate for the Respondent : MR K JAIN R- 1and2

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BEFORE

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THE HON’BLE MR JUSTICE PRASANTA KUMAR DEKA O R D E R

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22. 11. 2019

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Heard Mr. K Goswami, learned counsel for the petitioners. Also heard Mr. N Alam, learned counsel for the respondent Nos. 1 and 2, Mr. L K Talukdar, learned counsel for the respondent Nos. 3,4 and 5.

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Order impugned in this revision petition was passed by the learned Civil Judge No. 2, Kamrup (M) at Guwahati passed in Misc. (J) Case No. 837/2016 arising out of T.S. No. 247/2014. The plaintiffs respondent Nos. 1 and 2 filed the suit against the present petitioners who are impleaded as proforma defendants. They filed their written statement which by way

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of subsequent application under Order 6 Rule 17 of CPC sought for amendment. The same was dismissed by holding as follows:

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“The suit is at the stage of cross-examination of PW1. The trial of the suit, apparently, has commenced. The application under Order VI R.17 CPC was filed by the proforma defendants seeking amendment of written statement, admittedly, after the commencement of the trial. The application for amendment filed by the proforma defendant also does not disclose any material to come to a conclusion that in spite of due diligence, the amendment petition could not have been filed or the proforma defendant could not have raised the matter before the commencement of the trial.

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For the foregoing rationale in the attending facts and circumstances, the petition for amendment of the written statement is liable to be rejected.

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It is ordered accordingly.

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This Misc (J) case is dismissed on contest. No costs.”

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Being aggrieved this revision petition is preferred by the present petitioners. Mr. Goswami submits that the defence wanted to be introduced in the written statement are required in order to protect the interest of the petitioners and as such though the suit was at the stage of filing evidence on affidavit by the plaintiff side but before filing of the evidence the amendment petition was preferred. The learned court below ought to have considered the said particular stage and having not done so the impugned order is liable to be interfered.

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Mr. Alam vehemently objected to the submission of Mr. Goswami on the ground that there is no illegality in the impugned order. It is submitted that in another suit being M.S. No. 297/2011 wherein the plaintiff respondent Nos. 1 and 2 are defendants along with the predecessor-in-interest of present petitioners by filing written statement had already pleaded the facts which they wanted to introduce in the written statement in the suit. Accordingly, relying M/S Modi Spinning and Wearing Mills Co. Ltd. Another V. M/S Ladha Ram and Co. reported in (1976) 4 SCC 320 Mr. Alam further submitted that in the written statement of the petitioners there are specific admission in some of the issues by them and if the amendment is allowed the said admission would displace the same.

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I have given due consideration to the submissions of the learned counsel. The amendment sought to be introduced is in the written statement by supplementing the defence already on record. The fact wanted to be introduced by way of amendment had

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already been pleaded in Money Suit No. 297/2011 filed by the UCO Bank, Silpukhuri Branch wherein the plaintiffs respondents and father of the present petitioners were impleaded as defendants. Therein the late father of the present petitioners had filed counter-claim stating the facts what the present petitioners wanted to introduce in T.S. No. 247/2014 which in my opinion cannot be held displacement of admission in the written statement of the present petitioners. Moreover from the perusal of the amendment petition nowhere it is found for striking out any paragraph or pleading in the written statement. If at all there is any admission the same will remain in the written statement.

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In Andhra Bank Vs. ABN Amro Bank reported in AIR 2007 SC 2511 the appellant who was the defendant in a suit sought for amendment of the written statement at the hearing stage (evidence of the defendant) which was disallowed. Rejecting the said order, the Hon’ble Apex Court it is permissible in law to amend a written statement of the defendants by which an additional ground of defence is taken. Delay was no ground for not allowing the prayer for amendment of the written statement. Here the plaintiffs respondents can very well cross-examine the petitioners in order to demolish the said defence what they sought to introduce in the written statement. Amendment are also to be allowed for deciding the real controversies between the parties to the suit. The petitioners in order to avoid delay in disposal of the suit can well be directed to file the amended written statement within a specific time limit keeping in view the provision of Order VI Rule 18 CPC. Merely because the trial had commenced and the reasons for non explanation as to why the amendment could not be brought before commencement of trial cannot be the grounds for rejection of the petition keeping in view the counter-claim of the late father of petitioners in M.S. No. 297/2011 wherein the plaintiff respondents Nos. 1 and 2 are also defendants. Accordingly, I am constrained to interfere in the impugned order which I accordingly do by setting aside the same.

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Considering the same, this revision petition succeeds thereby directing the learned court below to accept the amended written statement by fixing a date for the same. Failure to file the written statement on the date to be fixed would amount to waiver of the right to file the same without there being any further extension of time. The plaintiffs respondents may be allowed to file additional evidence on affidavit as the stage of cross-examination of

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the plaintiffs witnesses are not over. No costs. Interim order if any, stands vacated.

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JUDGE

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Comparing Assistant

Balsrang Arengh and 2 Ors. v. Dinesh Kumar Mittal and 3 Ors.

Case brief

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Balsrang Arengh and 2 Ors. v. Dinesh Kumar Mittal and 3 Ors.

Case brief

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