The High Court of Orissa dismissed a Civil Miscellaneous Petition challenging an order rejecting an application to amend a written statement. The court held that introducing an inconsistent plea after the closure of plaintiff's evidence would cause prejudice and alter the nature of the suit.
CWP against the order of amendment rejection dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.42 of 2023
Bhikari Charan Mishra
…. Petitioner Mr. Soumya Mishra, Advocate
-versus-
Santosh Kumar Patra and others …. Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
JUDGMENT
Order No.
03.02.2023
Page 1 of 6
CMP No.42 of 2023
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his right, title and interest thereon. He also filed counterclaim praying inter alia declaration of his right, title and interest over the suit land. After closure of the evidence of the Plaintiff, when the Defendant No.1/Petitioner was preparing to lead evidence, it came to light that Advocate engaged by Defendant No.1 did not act properly to defend and safeguard his interest. It also came to light that some relevant facts were not pleaded in the written statement. Hence, an application under Order VI Rule 17 CPC was filed for amendment of the written statement filed by Defendant No.1. Amongst all, in para-6, the Defendant No.1 proposed to incorporate the pleading as under:-
“6. ‘That the contents of Para 7 of the written statement are incorrect and hence denied. It is incorrect to say that the suit land has been also recorded in the name of the plaintiff in the mutation ROR in OLR case No.8 of 2008 U/s. 19(c) and that the plaintiff has never alienated the suit land to anybody in any manner at any point of time and that so also his father or brother.’ In fact the Plaintiff, deceased Defendant No.2 & Defendant No.3 jointly transferred the suit land to the Defendant No.1 under RSD No.785, dt.17.05.1991 and the Defendant No.1 is in possession over the suit land since the date of purchase. Mutation ROR if any is forthcoming the same has been done behind the back of the Defendant No.1 & the same will not confer any title in favour of the Plaintiff.”
Learned trial Court by misconstruing the scope of amendment of the written statement in exercise of power under Order VI Rule 17 CPC, rejected the same as if he was adjudicating the suit itself. It is his submission that parameters for consideration of an application for amendment of plaint and a written statement are completely different. Contradictory and inconsistent plea can be incorporated to the written statement by way of amendment, which is not permissible in case of
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CMP No.42 of 2023
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amendment of plaint. He relied upon the ratio in the case of Usha Balasahaheb Swami and others Vs. Kira Appaso Swami and others , reported in (2007) 5 SCC 602, wherein Hon’ble Supreme Court held as under:-
“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 (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 :……….
21. As we have already noted herein earlier that in allowing the amendment of the written statement a liberal approach is a general view when admittedly in the event of allowing the amendment the other party can be compensated in money. Technicality of law should not be permitted to hamper the Courts in the administration of justice between the parties. In the case of L.J. Leach and
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CMP No.42 of 2023
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Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357], this Court observed
"that the Courts are more generous in allowing amendment of the written statement as the question of prejudice is less likely to operate in that event".
In that case this Court also held
"that the defendant has right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to serious injustice."
3.1 It is his submission that prejudice, if any, caused to the Plaintiff can be compensated in terms of cost. If the amendment is not allowed, it will be more prejudicial to the Defendant No.1 than the prejudice that would have been caused to the Plaintiff, if amendment is allowed. The amendment sought for will bring on record the true state of affairs and the suit can be adjudicated effectively. He, therefore, prays for setting aside the impugned order under Annexure-7 and to allow the prayer of Defendant No.1 in the petition under Order VI Rule 17 CPC.
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CMP No.42 of 2023
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detail particulars to that effect. By way of amendment the Defendant No.1 sought to introduce a completely new case. Since the evidence of the Plaintiff has already been closed on the basis of the available pleadings, amendment of written statement at this stage will certainly prejudice him. In case of Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited, reported in 2022 SCC OnLine SC 1128, it is held as follows:-
“ 70. Our final conclusions may be summed up thus:
(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.
(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and
(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
(iv) A prayer for amendment is generally required to be allowed unless
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CMP No.42 of 2023
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(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is mala fide, or
(iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs………”
The amendment sought for do not satisfy the aforesaid requirements, as set out by Hon’ble Supreme Court. It, however, appears that learned trial Court has made some observations on the correctness of the sale deed. But certainly the same will not be a ground for adjudication of the suit. Since the parties have contested the suit on the basis of the pleadings and materials available on record, amendment of the written statement at the belated stage, i.e., after closure of the evidence from the side of the Plaintiff, should not be allowed. Hence, learned trial Court has rightly rejected the petition under Order VI Rule 17 CPC for amendment of the CMP.
(K.R. Mohapatra)
Judge
s.s.satapathy
Page 6 of 6
CMP No.42 of 2023
2 issues framed by the court
Whether an amendment of written statement under Order VI Rule 17 CPC is maintainable after closure of plaintiff's evidence when it introduces an inconsistent and contradictory plea.
Whether the trial court committed an error in rejecting the amendment application by adjudicating the suit merits instead of solely on amendment principles.
Colour shows how this judgement treated each authority
Usha Balasahaheb Swami and others Vs. Kira Appaso Swami and othersReferred¶25
(2007) 5 SCC 602 · Who else cites this
B.K. Narayana Pillai v. Parameswaran PillaiReferred¶26
B.K. Narayana Pillai v. Parameswaran Pillai (2000(1) SCC 712) · Who else cites this
Baldev Singh & Ors. v. Manohar SinghReferred¶26
Baldev Singh & Ors. v. Manohar Singh (2006 (6) SCC 498) · Who else cites this
Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (Dead)Referred¶26
[1995 Supp (3) SCC 179] · Who else cites this
L.J. Leach and Co. Ltd. v. Jardine Skinner and Co.Referred¶32
[AIR 1957 SC 357] · Who else cites this
Life Insurance Corporation of India Vs. Sanjeev Builders Private LimitedDistinguished¶41
2022 SCC OnLine SC 1128 · Who else cites this
1 provisions across 1 enactments
Bhikari Charan Mishra
Santosh Kumar Patra and others
K.R. Mohapatra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
