Saturday, 22 December 2018

Whether it is necessary for court to decide all interlocutory applications before proceeding with trial of main suit?

Before parting with this case, it may be observed that the application for amendment of the pleadings was filed by the petitioner in March, 1990. Without passing any order on the said application, the Trial Court stated taking evidence on 4 September, 1990. It is stated by the Counsel for the petitioner that prayer was made before the learned Judge to dispose of the application for amendment of pleadings before proceeding with the recording of evidence but it was not considered. The application for amendment was decided only after more than 11/2 year on 10 October, 1991. I fail to understand why the trial Court did not dispose of the petition for amendment of the pleadings before proceeding with the recording of evidence because the decision on the application for amendment undisputedly would effect the entire litigation. I hope such practice, if in vogue, will be discontinued and all interlocutory applications would be disposed of as expeditiously as possible, in any event before proceeding with the trial of the main suit.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 859 of 1991 in Interlocutory Notice No. 595 of 1991 in L.E. and C. Suit No. 51/68 of 1979

Decided On: 11.02.1994

 Annoo Shetty Vs. Aishabai Hamid Khan

Hon'ble Judges/Coram:
Dr. B.P. Saraf, J.

Citation: 1994(1) LJSOFT 36


1. The petitioner is the defendant in a suit pending in the Small Causes Court at Bombay. He is aggrieved by the judgment and order of the Judge, Small Causes Court, Bombay dated 10 October, 1991 rejecting his application under Order 6, Rule 17 of the Code of Civil Procedure (C.P.C.) for amendment of his written statement.

2. A suit was filed by the respondent (original plaintiff) in the Small Causes Court at Bombay against the petitioner for his eviction from certain premises (suit premises) and arrears of compensation. Written statement was filed by the petitioner on 29 February, 1980. On the basis of the pleadings of the parties, issues were framed by the Court on 1 July, 1989. In March, 1990, the petitioner filed an application for amendment of his written statement. It was contended that the amendment was necessitated because of change of circumstances subsequent to the filing of the written statement on 29 February, 1980. The case of the petitioner was that during the pendency of the suit, he himself became the tenant of the suit premises and later, the entire building in which the suit premises was situated being converted into a Co-operative Housing Society, became the owner thereof. He, therefore, wanted to amend the pleadings suitably. The amendment was not allowed by the Court on the ground that it was irrelevant and inconsistent with the earlier pleadings of the petitioner. Aggrieved by the above order, the petitioner has filed this revision application.

3. I have carefully considered the facts of the case, the application for amendment and the impugned order. It appears that the suit was filed by the respondent against the petitioner for eviction. The case of the respondent was that the petitioner was inducted by him in the suit premises under an agreement dated 22 May, 1975 as a paying guest. The said agreement was revoked by notice dated 2 March, 1976 and the petitioner was asked to vacate the suit premises but the petitioner failed to do so. Hence the suit for eviction was filed.

4. The original defence of the petitioner was that he was in exclusive possession of the suit premises since December, 1972 as a licensee and the licence was in force and subsisting on 1 February, 1973. As such, the petitioner became a deemed tenant or protected licensee and was entitled to the protection of law. In the application for amendment it was stated that subsequent to the filing of the written statement, the petitioner had himself become the tenant in respect of the suit premises and had paid all the arrears of rent to the original owner who had also issued receipts in his name. It was further stated that thereafter the property was converted to Vinobha Bhave Nagar Tenants' Co-operative Society and the petitioner thereby became the owner of the suit property. The petitioner, therefore, wanted to suitably modify his pleadings in the written statement in the light of the above developments and proposed insertion of the following three paragraphs in the written statement originally filed by him:

9(a) The defendant states that the defendant has now become the tenant in respect of the said premises and the defendant has paid all the arrears of rent in respect thereof to the landlord and the said lord Shri Gouri Shankar Singh who is the owner of the said property, has issued in favour of the defendant a receipt in the name of the defendant accepting the defendant as the tenant in respect together with the plot of land under the said structure. The defendant will crave leave to refer to and rely upon the receipts for the payment of rent by the defendant in that behalf, when produced.

(b) The defendant states that the said property has been converted to the Vinobha Bhave Co-operative Society and the defendant has also been accepted as the owner of the structure and the land under the said structure. The said owner of the property Shri Gouri Shankar Sadhu Singh has also executed in favour of the defendant an affidavit-cum-declaration concerning the above matter. The defendant will carve leave to refer to any rely upon the same, when produced.

(c) The defendant states that in view of the circumstances of the case, and particularly in view of the above facts, the right under which the plaintiff was litigating in the above suit, has ceased and has come to an end absolutely and the plaintiff no longer is entitled to proceed with the above suit as there is no title left in favour of the plaintiff in respect of the said property and therefore, the suit is liable to be dismissed with costs.

The respondent-plaintiff objected to the proposed amendment. According to him, by the proposed amendment, the petitioner was seeking to bring on record a totally new case by amending the written statement and stating therein events which had taken place during the pendency of the suit. According to the plaintiff such amendment in the written statement could not be allowed.

5. The learned Judge, Small Causes Court considered the rival submissions. He also examined the merits and consequences of the changed circumstances stated by the petitioner in his petition for amendment and observed that the amendment sought to be made, particularly in Para 9(b), was irrelevant and inconsistent with the earlier pleadings in the original written statement. Besides, according to the learned Judge, if the proposed amendments were allowed, the respondent-plaintiff would be no longer be entitled to proceed with the suit. He, therefore, dismissed the petition for amendment.

6. I have perused the impugned order. I have also heard the learned Counsel for the parties at length. Counsel for the petitioner submits that the courts usually take notice of subsequent events to shorten litigation by allowing suitable amendment in the pleadings for that purpose. In support of this contention reliance is placed on a number of decisions of the Supreme Court, more particularly the decision in M. Laxmi & Co. v. A.R. Deshpande, MANU/SC/0513/1972 : [1973]2SCR172 . Counsel for the respondent, on the other hand, supports the order of the Trial Court and submits that the amendments sought to be made have the effect of depriving the respondent-plaintiff of the right accruing to him from the admission made in the written statement earlier. By the proposed amendment the petitioner seeks to bring in contradictory and inconsistent pleadings which, according to him, is not permissible. Besides, his submission is that the amendment has the effect of changing the basic nature and structure of the case and that being so, the amendment cannot be allowed. Reliance is placed on the decisions of the Supreme Court in Modi Spg. Wvg. Mills v. Ladha Ram & Co., MANU/SC/0012/1976 : [1977]1SCR728 , Md. Ishaq v. Md. Iqbal & Md, Ali & Co., MANU/SC/0032/1978 : [1978]3SCR571 , decision of this Court in D.S. Construction v. Export C.G. Corpo, 1991 M.L.J 50, decision of the Gauhati High Court Amar Singh Chetri v. Bijay Chandra Modak, MANU/GH/0012/1993.

7. I have carefully considered the rival submissions. Order 6, Rule 17 of the Civil Procedure Code deals with the power of the Court to allow amendment of the pleadings. It reads :

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.

It is clear from a plain reading of this rule that the Court may allow either party to amend his pleadings in such a manner and on such terms as may be just. This may be done at any stage of the proceedings. It also indicates that all such amendments should be allowed as may be necessary for the purpose of determining the real questions in controversy between the parties.

8. The scope and ambit of the above provision has been considered by the Supreme Court and the High Courts from time to time. It is well-settled that the Court should be extremely liberal in granting amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. It is also well-settled that the Court can take notice of the subsequent events. These cases are where the Court finds that because of altered circumstances like devolution of interest, it is necessary to shorten litigation or where the original relief has become inappropriate by subsequent events. The Court can take notice of such circumstances. The true test for allowing the amendment is to find out whether the proposed amendment works any serious injustice to the other side.

It is also well-settled that the Court can always take notice of subsequent events to shorten litigation, to preserve the rights of both the parties and to subserve the ends of justice. As observed by the Supreme Court in M. Laxmi & Co. v. A.R. Deshpande, MANU/SC/0513/1972 : [1973]2SCR172 :

"It is true that the Court can take notice of subsequent events. These cases are where the Court finds that because of altered circumstances like devolution of interest it is necessary to shorten litigation. Where the original relief has become inappropriate by subsequent events, the Court can take notice of such changes. If the Court finds that the judgment of the Court cannot be carried into effect because of change of circumstances the Court takes notice of the same. If the Court finds that the matter is no longer in controversy the Court also takes notice of such events. If the property which is the subject-matter of suit is no longer available the Court will take notice of such event. The Court takes notice of subsequent events to shorten litigation, to preserve rights of both the parties and to subserve the ends of justice."
In Vineet Kumar v. Mangal Sain Wadhera, MANU/SC/0333/1984 : [1984]2SCR333 , the Supreme Court dealing with the case of amendment of the plaint reiterated that the events and developments subsequent to the institution of the written statement must be taken into consideration in appropriate cases to permit substantial justice.

In Pandit Ishwardas v. State of M.P., MANU/SC/0021/1979 : (1979)4SCC163 , it was held by the Supreme Court that there is no impediment or bar even against the Appellate Court permitting amendment of pleadings so as to enable a party to raise a new plea provided the Appellate Court observes the well-known principle subject to which the amendment of pleadings are usually granted.

As observed by the Supreme Court in M/s. Ganesh Trading Co. v. Moji Ram, MANU/SC/0018/1978 : [1978]2SCR614 :

"..... provisions for the amendment of pleadings, ..... are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued."
The principles were also summed up by the Supreme Court in Suraj Prakash v. Raj Rani, MANU/SC/0045/1980 : AIR1981SC485 , where it was observed:

"All rules of Court 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 for another, nor to change, by means of amendment, the subject matter of the suit."
It was reiterated by the Supreme Court in Haridas Aildas v. Godrej Rustom, MANU/SC/0019/1981 : AIR1983SC319 that the courts should be extremely liberal in granting amendments of pleadings unless serious injustice or irreparable loss is caused to the other side.

In Amar Singh Chetri v. Bijay Chandra Modak, MANU/GH/0012/1993 it was observed:

"Ordinarily, in dealing with an application to amend the plaint, the Court would ask questions like - whether the application would alter the nature and character of the suit so fundamentally as to cause irreparable injury to the opposite party, whether the amendment is necessary for the purpose of determining the real questions in controversy between the parties and whether the proposal of the amendment is devoid of bona fides."
The law on the subject was summed up by this Court in Ashok v. Gourammabai, MANU/MH/1028/1993 : 1994 Mh.L.J. 286 in the following words :

"The position that emerges from the above decisions of the Supreme Court is that an amendment should always be allowed if it is necessary for the purpose of determining the real questions and controversies between the parties and if it can be made without injustice to the other party. There is no injustice if the other side can be compensated by costs. The only exception is where the amendment would take away from a defendant a legal right which accrued to him by lapse of time. Even amendments modifying the original cause of action or adding another may be allowed if the entire subject-matter of the suit is not altered. Introduction of a new cause is no ground for refusing to allow amendment so long as the defendant has the opportunity of meeting the new case by amendment of the written statement and by leading evidence in respect of his defence. Avoidance of multiplicity of suits is also one of the relevant considerations."
All these decisions clearly go to show that amendment of pleadings should be liberally allowed except in cases where vested rights of any of the parties are affected.

9. The decision of this Court in D.S. Construction v. Export C.G. Corpo, 1991 Mah.L.J. 50, on which reliance is placed by the counsel for the respondent, was rendered on consideration of the facts of that case and has no application to the controversy in the present case.

I have also perused the decision of the Supreme Court in Modi Spg. v. Wvg. Mills v. Ladha Ram & Co., MANU/SC/0012/1976 : [1977]1SCR728 . The ratio of this decision, in my opinion, is in no way different than the ratio of the decisions set out above. The Supreme Court made it clear that inconsistent pleas can be made in the pleadings and amendment cannot be refused on that ground. The rejection of amendment of written statement was approved by the Supreme Court in the above case in view of the fact that the proposed amendment was sought for displacing the plaintiff completely from the admissions made by the defendants in the written statement. It was in that view of the matter that it was held by the Supreme Court:

"If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court."
10. Considering the law set out above, I am of the clear opinion that in the instant case the learned Judge, Small Causes Court, Bombay was not justified in refusing to allow the amendment of the written statement. The said order is, therefore, set aside. Learned Judge, Small Causes Court is directed to allow the amendment of the written statement.

11. Before parting with this case, it may be observed that the application for amendment of the pleadings was filed by the petitioner in March, 1990. Without passing any order on the said application, the Trial Court stated taking evidence on 4 September, 1990. It is stated by the Counsel for the petitioner that prayer was made before the learned Judge to dispose of the application for amendment of pleadings before proceeding with the recording of evidence but it was not considered. The application for amendment was decided only after more than 11/2 year on 10 October, 1991. I fail to understand why the trial Court did not dispose of the petition for amendment of the pleadings before proceeding with the recording of evidence because the decision on the application for amendment undisputedly would effect the entire litigation. I hope such practice, if in vogue, will be discontinued and all interlocutory applications would be disposed of as expeditiously as possible, in any event before proceeding with the trial of the main suit.

12. In the result, the revision application is allowed. Under the facts and circumstances of the case, there shall be no order as to costs.




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