Under which circumstances the Appellate court can permit defendant to Add Facts Omitted Earlier In Written Statement?

The matter in hand would go to show that the petitioner/ defendant being illiterate and pardanashin lady was in fact unable to understand the pleadings in the written statement and therefore, in order to do justice effectively, the proposed amendment which is in the nature of clarification, ought to have been considered by the learned First Appellate Court. However, while taking hyper technical aspect and without considering the status of the defendant, such amendment was rejected. {Para 30}

31. To my mind, the impugned order suffers from improper exercise of jurisdiction. No doubt, the proposed amendment/facts were to the knowledge of the defendant when she filed the written statement, that ground could have been considered qua the status of the defendant being illiterate and pardanashin lady. At the most,costs could have been imposed since the proposed amendment is not in a mala fide manner and certainly it is not causing any prejudice to the plaintiff.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO. 1608 OF 2021

 Hasinabi w/o Abdul Latif Vs  Mohammad Sharif S/o Abdul Rajjak, 

CORAM : B.P. DESHPANDE, J.

PRONOUNCED ON : 7TH MARCH, 2024

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Can the court allow an amendment of the written statement if the defendant takes the additional ground of defence by said amendment?

From a perusal of the amendment application we find that the appellant in their prayer for amendment has only taken an additional defence that in view of Section 230 of the Indian Contract Act, the suit itself is not maintainable. It is well settled, as noted herein earlier, that at the time of considering the prayer for amendment of the written statement it would not be open to the Court to go into the fact whether in fact the suit in view of Section 230 of the Indian Contract Act was or is not maintainable.

6. That apart it is permissible in law to amend a written statement of the defendant by which only an additional ground of defence has been taken.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2946 of 2007 

Decided On: 10.07.2007

 Andhra Bank  Vs.  ABN Amro Bank N.V. and Ors.

Hon'ble Judges/Coram:

Tarun Chatterjee and Markandey Katju, JJ.

Author : Tarun Chatterjee, J.

Citation: MANU/SC/2907/2007, AIR 2007 SC 2511.

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To what extent court can allow amendment of written statement permitting defendant to withdraw admission?

In Ram Niranjan Kajaria, the Apex Court

held that even though an attempt to wholly resile

from an admission cannot be permitted, the

admission can be clarified or explained by way of

amendment and the basis of admission can be

attacked in a substantive proceedings. This court

in Pavithran also held that if an admission could

be explained away or can be rescinded or

superseded, there cannot be any prohibition

against such admission being allowed to be taken

away by amending the pleading. The aforementioned

decisions would have applied, had the attempt of

the petitioner been to only explain or clarify the

admission. On the contrary, the attempt here is to

withdraw the admissions and set forth an entirely

new case. As held by the Apex Court in Modi

Spinning and Weaving Mills (supra), the defendant

cannot be permitted to change his case completely

and substitute an entirely new case. Here, the

the amendments would, not only have the effect of

the defendant making inconsistent and alternative

pleadings, but also of completely displacing the

admissions made in the written statement. Even the

most liberal approach towards amendment of written

statements will not justify the approval of such

an application.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

 MR.JUSTICE V.G.ARUN

MUHAMMED ASHRAF, Vs  FASALU RAHMAN,

O.P.(C)No.1374 of 2021

Dated: 10TH DAY OF SEPTEMBER 2021

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Whether defendant can file counter claim by amending his written statement?

In the case of Ramesh Chand Ardawatiya Vs. Anil

Panjwani (supra), the Hon'ble Supreme Court has held that

counterclaim

can be filed either with written statement or by way

of amendment of written statement or further by way of

subsequent pleading under Order VIII Rule 9 of CPC. It has been

further observed in the said Judgment that the purpose of the

provision enabling filing of counterclaim

is to avoid multiplicity

of judicial proceedings and to save time of the Court as well as

prevent inconvenience to the parties. The Trial Court in the

present case has referred to the judgment of the Hon'ble Supreme

Court in the case of Bollepanda P. Poonacha and Another Vs.

K.M. Madapa, (2008) 13 Supreme Court Cases 179 wherein it

has been specifically held by the Hon'ble Supreme Court that right

to file a counterclaim

is an additional right. 

12. The aforesaid position of law as enunciated by the

Hon'ble Supreme Court in the above mentioned judgment makes

it clear that the defendant cannot be prohibited from filing a

counter claim merely because it failed to raise the same in the

written statement itself. Although, it is clear that the defendant

will not be entitled to file a counter claim if it had not filed written

statement at all. In the facts and circumstances of the present

case, it is evident that the respondent No.1 did file its written

statement on 28/6/2017 well within the time limit specified under

Order VIII Rule 1 as amended and applicable to cover the dispute.

Therefore, the present case is not a situation where respondent

No.1 (defendant) is claiming to raise a counterclaim

in the

absence of written statement on record. The amendments

incorporated in Order VIII Rules 1 & 10 of CPC mandatorily

require written statement to be filed within outer limit of 120 days

and the Court is prohibited from extending the time so specified.

But, it would not lead to the conclusion that the defendant would

be completely prohibited from raising counterclaim

after expiry of

the period of 120 days. As laid down by the Hon'ble Supreme

Court the counter claim is an additional pleading and it can be

raised with leave of the Court subject to the rider that it shall

pertain only to cause of action that accrued to the defendant

either before or after filing of the suit but before the defendant

delivered its defence or time period for delivering its defence had

expired.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

Writ Petition No. 1688 of 2018

M/s Sri Sai Gopal Turbo Engineering Services, Vs. EM Services Private Limited,

CORAM : MANISH PITALE, J.

PRONOUNCED ON : 04.06.2019

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Whether court can permit withdrawal of admission by amendment of written statement?

I find from the impugned order that the Trial Court has merely

reproduced the head note in the judgment delivered in Usha

Balasaheb Swami Vs. Kiran Appaso Swami [AIR 2007 SC 1663].

There is not a single reason assigned in the impugned order allowing

the entire application Exh.29. In my view, an application for

amending

the written statement, especially when the amendment is

sought to delete certain admission and avernments, which may

favour the other side, cannot be lightly permitted. Deletion of certain

avernments and statements favouring the plaintiffs, by amending the

plaint, is a serious aspect. While delivering such an order, the Trial

Court is expected to apply it's mind and only after concluding that

the deletion is necessary, that an order could be passed. Imposing

costs is not an excuse to allow an application by an order which

suffers from lack of reasons.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.11 OF 2019

Kaka  Sahebrao Kapse,   Vs   Maruti  Apparao Disle,

( CORAM : Ravindra V.Ghuge, J.)

DATE : 26/09/2019

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Whether defendant can be permitted to amend his written statement to explain admission and to introduce additional pleas to support defence?

It has been laid down by a catena of decisions that as per order 6 Rule 17 of CPC amendment of pleadings by the defendant ought to be allowed where purpose of the proposed amendment is to elaborate the defence and to take additional plea in support of the case. It has also been laid down that where there is a direct admission in the original pleadings, it is open to the defendants to explain the same.

12. It is not the contention of the respondents that the petitioners are trying to add new ground of defence by substituting or altering the defence which has already been raised in the written statement. The law is well settled that the defendant can take inconsistent pleas in the written statement although the same may not be permitted in case of plaint. Powers of the Court under Order 6 Rule 17 CPC to allow amendment of pleadings are wide.

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 900 of 2017

Decided On: 24.02.2018

 Teotonio Faustino Vas Vs. Ana Maria Rodrigues and Ors.

Hon'ble Judges/Coram:

Prithviraj K. Chavan, J.

Citation: 2019(1) MHLJ 668

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Whether it is permissible to file counter claim after filing of written statement?

 So far as the counter-claim filed by respondents/defendants is concerned, Order VIII, Rule 6A(1) does not, on the face of it, bars the filing of the counter-claim by a defendant after he had filed the written statement. What is laid down under Rule 6A(1) is that a counter-claim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limited for delivering his defence has expired. Therefore, the counter-claim filed by the respondents/defendants after filing of the written statement is maintainable. In the facts of the present case, the cause of action shown to have been arisen before filing of the written statement.

17. In the case of Mahendra Kumar and another v. State of M.P. and others (supra), relied upon by the learned counsel for the petitioners/plaintiffs, it is clearly laid down that Rule 6A(1) of Order VIII of Civil Procedure Code does not bar the filing of a counter-claim by the defendant after filing of his written statement. It only provides with respect to the cause of action regarding which the defendant could file a counter-claim and the cause of action must have accrued to the defendant before he delivered his defence or before the time limited for delivering his defence has expired. In view of the same, I do not find any substance in the submissions made on behalf of the petitioners/plaintiffs that filing of a counter-claim after filing of the written statement is not permissible.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

W.P. No. 8320 of 2017

Decided On: 15.03.2018

Maruti Vithoba Kulal. Vs.  Nivrutti Deoram Kulal 

Hon'ble Judges/Coram:

V.K. Jadhav, J.

Citation: 2018(5) MHLJ 290

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Whether party can add pleading regarding issue of law at any stage of proceeding?

As a corollary to the above discussion it needs to be observed with certitude that the issue as raised by the petitioner in the amendment application was in regard to the jurisdiction of the Family Court when issues of res judicata and conclusiveness of the decree of the Dubai Court are being asserted. This is an issue of law. In any case the plea as being urged in the amendment to the written statement is a plea of jurisdiction which can be permitted to be raised at any stage of the proceedings.
IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 12862 and 12863 of 2017

Decided On: 22.01.2018

 Vishal Nitinkumar Kondhia Vs. Jahnvi Vishal Kondhia

Hon'ble Judges/Coram:

G.S. Kulkarni, J.

Citation: 2018(3) MHLJ 823

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Whether grant of application for amendment in written statement can be allowed only if proposed case will succeed?

 This being the position, the case which was sought to be set up in the proposed amendment was an elaboration of what was stated in the written statement. The High Court has in the exercise of its jurisdiction Under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the Appellant in the amendment. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction Under Article 227. In Sadhna Lodh v. National Insurance Co. MANU/SC/0080/2003 : (2003) 3 SCC 524, this Court has held that the supervisory jurisdiction conferred on the High Court Under Article 227 is confined only to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction. In the exercise of its jurisdiction Under Article 227, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or tribunal has passed an order. The Trial Court had in the considered exercise of its jurisdiction allowed the amendment of the written statement Under Order 6 Rule 17 of the Code of Civil Procedure. There was no reason for the High Court to interfere Under Article 227. Allowing the amendment would not amount to the withdrawal of an admission contained in the written statement (as submitted by the Respondent) since the amendment sought to elaborate upon an existing defence. It would also be necessary to note that it was on 21 September 2013 that an amendment of the plaint was allowed by the Trial Court, following which the Appellant had filed a written statement to the amended plaint incorporating its defence. The amendment would cause no prejudice to the Plaintiff.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 19400 of 2017 (Arising out of SLP (C) No. 8858 of 2017)

Decided On: 15.12.2017

Raj Kumar Bhatia Vs. Subhash Chander Bhatia

Hon'ble Judges/Coram:

Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.

Citation:(2018)2 SCC 87

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Whether court can allow amendment of written statement destructive of earlier case at the stage of appeal?

Having considered the rival submissions and upon perusing the original pleadings viz. plaint and written statement as well as the proposed amendment, I find no hesitation in recording that the Court below was completely in error in concluding that the proposed amendment would be consistent with the stand already taken by the Respondent. However, I am of the considered view that the proposed amendment would not only be inconsistent with the earlier stand taken by the defendant, but is destructive of the same. I am persuaded to take this view, for the stand which was taken in the written statement was very specific that the Respondent was the direct tenant of the Petitioner. At no stage did the Respondent assert that he was claiming through the defendant No. 1. On the other hand his categorical case was that he was inducted in the suit premises after he was introduced by one Jitkar to the petitioner in the year 1960 and since then the petitioner had accepted him to be his tenant. This plea, in my view, is not only inconsistent with the new plea raised in the proposed amendment, but if the proposed amendment is allowed it would be clearly destructive of the original plea. Inasmuch as, by the proposed amendment, the Respondent, for the first time, wants to assert that he was in possession of the suit premises prior to 1.2.1973 in the capacity of sub-tenant of the defendant No. 1. There is perceptible difference between the stand taken in the original written statement and one suggested in the proposed amendment. No doubt the proposed amendment seeks to raise an alternative plea, but such an alternative plea if permitted would be totally destructive to the original stand. Moreover there is no foundation laid in the Trial Court to permit such a new plea. Besides that it would take the petitioner/plaintiff by surprise in the appeal. The Respondent cannot be allowed to take advantage of some averment in the plaint and succeed in this manner. There is nothing on record to show that the Respondent was in occupation of the suit premises as licensee of the original tenant Kondi Rama Dhinde, original defendant No. 1. To set up a claim of having protection under the provisions of Bombay Rent Act, the licensee must show that he had a subsisting licence on the relevant date. On the other hand, the stand taken by the Respondent all throughout the trial has been that the Respondent was paying rent directly to the Petitioner and was the direct tenant of the Petitioner. Respondent, therefore, cannot be allowed to approbate and reprobate or allowed to deviate from the earlier stand in the garb of an alternative plea that he is the licensee of defendant No. 1 especially when he had failed to categorically deny the case made out by the plaintiff and having admitted that the defendant No. 1 had no concern with the suit premises after 1960. The view that I propose to take, the same is supported by the decisions relied by the Counsel for the Petitioner. Whereas the decisions relied upon by the Respondent be clearly distinguished, for, in the present case I have no hesitation in concluding that if the proposed amendment is allowed it would permit the Respondent defendant No. 2 to raise a plea which would be destructive of the original stand taken in the written statement on the basis of which parties went to the trial. Moreover it would cause irreparable prejudice to the Petitioner herein, inasmuch as by the proposed amendment, the Respondent has for the first time asserted that he is in possession of the suit premises prior to 1.2.1973 as a licensee of the defendant No. 1. If the Respondent wanted to take this stand, it was incumbent upon him to do so in view of the express provisions contained in Order VIII of the C.P.C. with regard to the contents of the written statement. The Respondent having filed general and vague written statement while replying to the assertions in the plaint and at the same time took a specific stand, now the Respondent cannot be permitted to take the Petitioner by surprise on the stand on which no evidence has been adduced by either party before the Trial Court. Such an amendment, at the appeal stage, would be wholly inappropriate and ought not to be permitted in the interest of justice.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 71 of 1993

Decided On: 09.02.2001

Balu Appaji Sangaonkar  Vs.  Rangrao Dattoba Palkar

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation:2001(3) BOM CR,2001(2) ALLMR 556

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Whether court should see merits of amendment at time of deciding application for amendment?

This being the position, the case which was sought to be set up in the proposed amendment was an elaboration of what was stated in the written statement. The High Court has in the exercise of its jurisdiction under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the appellant in the amendment. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction under Article 227. In Sadhna Lodh v National Insurance Company (2003) 3 SCC 524, this Court has held that the supervisory jurisdiction conferred on the High Court under Article 227 is confined only to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction. In the exercise of its jurisdiction under Article 227, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or tribunal has passed an order. The Trial Court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under Order 6 Rule 17 of the CPC. There was no reason for the High Court to interfere under Article 227. Allowing the amendment would not amount to the withdrawal of an admission contained in the written statement (as submitted by the respondent) since the amendment sought to elaborate upon an existing defence. It would also be necessary to note that it was on 21 September 2013 that an amendment of the plaint was allowed by the Trial Court, following which the appellant had filed a written statement to the amended plaint incorporating its defence. The amendment would cause no prejudice to the Plaintiff.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO .19400 OF 2017
[Arising out of SLP (C) No. 8858 of 2017]

RAJ KUMAR BHATIA V SUBHASH CHANDER BHATIA 

Dated:December 15, 2017.

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Whether one defendant can object to amendment application filed by co-defendant?

The foremost contention that was raised by the learned Counsel for the respondent, is that there is no reason or cause for the defendant No. 1 to raise the objection to the amendment sought to be made by the co-defendant. He submits that it is the plaintiffs' objection alone, which needs to be considered and not of the co-defendant. He also submits that the dispute could be only in between the plaintiffs and the defendants and that alone needs to be resolved and not the dispute between the two sets of the defendants. He further submits that the plaintiffs gave no objection to such amendment being allowed and, therefore, there was nothing wrong when the amendment was allowed. While considering the application, the Court has to see if such amendment is allowed, any prejudice will be caused to the plaintiffs and whether any of the rights of the plaintiffs, would be affected or not. There is no doubt that in the routine course, the Courts are required to decide the question as to the granting of the application for amendment vis-a-vis the plaintiff and the defendant alone. I do not, however, agree with the submission of the learned Counsel Shri Sharma that the Court need not consider any of the objection of the co-defendant/ the defendant No. 1 in the present case. Apart from this case, the Court would certainly be required to decide a dispute between the two defendants when their interest could be adverse or become adverse. Such a contingency can arise even when the plaintiff abandons the claim and one of the defendants has substantial question to be decided as against any of the other defendants. Order 23 Rule 1(a) of Civil Procedure Code, permits the defendant to be transposed as a plaintiff. This is precisely because there could be a dispute between two defendants. Yet another reason why such an objection of the co-defendant, needed to be heard, is whether the other defendant was withdrawing any admission to his detriment. If there is any admission in the pleadings of one of the defendants, which may help the other defendant, he has every right to resist the admission being withdrawn. An admission has been defined in Section 17 of the Evidence Act as follows:

Section 17- Admission - An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned." Not only Section 17 here is important, but to decide this question we need to look into two more provisions. Those provisions are Section 18 of the Indian Evidence Act as well as Rule 1 of Order 12 of Civil Procedure Code. What Section 18 says, is that a statement by a person interested in the subject matter, is an admission. It says if a person having proprietary or pecuniary interest in the subject matter of proceeding gives admissions, all admissions if they are made during continuance of interest of the person making the statements, are admissions. In the instant case, the plaintiffs have claimed that they are the owners of half property while the defendant No. 1 claims that he had purchased the suit property in the name of the defendant No. 3 from his own funds. The defendant Nos. 3 and 4, by their original written statement, had endorsed this stand of the defendant No. 1. Obviously, they had made statement as envisaged by Section 18 which could be treated as an admission. Rule 1 of Order 12 of Civil Procedure Code, says that any party to a suit, may give notice by his pleadings or otherwise in writing that he admits the truth of the whole or any part of the case of any other party. The words used in Rule, are "any other party" and not necessarily an adverse party. It could be either the plaintiff or the defendant also.

The above discussion clearly goes to show that the codefendant does have a right to challenge or oppose the amendment sought to be made by the other defendants.

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition Nos. 691 of 2008 and 8 of 2009

Decided On: 18.03.2009

 Shri Armando Pereira Vs. Shri Jude D'Souza S/o John D'Souza and Ors.

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Whether court can allow amendment of written statement on ground of negligence of Advocate?

 In the instant case, the statement that in spite of being duly instructed, the learned Advocate on record did not incorporate the pleading as sought to be raised is the only justification for not raising the plea earlier. However, it cannot be taken to answer the test of "due diligence" as required by the proviso under Rule 17, Order 6, Civil Procedure Code. The proviso contemplates parties to exercise due care and caution in raising the matter before the Court and once trial commenced, no new or additional plea can be permitted to be raised unless the party shows that with all diligence at its command, it could not raise it before commencement of the trial. The due diligence prescribed by the proviso is of the parties and of nobody else including the Advocate on record. If Counsel of the party refuses to take up certain pleas wished by his client to be taken up, the least and perhaps the only thing the client can do to get his wish fulfilled is to go to another counsel who will pay heed to him or else accept the judgment of his counsel for good. If he adopts the latter course, he cannot say later on, almost as an afterthought and by way of repentance, that although he toiled hard, he could not raise the plea earlier due to the stand taken by his earlier counsel. If a party chooses to accept the advice of Advocate "completely believing in him and his extra ordinary experience" as mentioned in the petitioner's amendment application in the present suit, instead of going to another Advocate well in time, he cannot be heard to say and imply that he was diligent when he "duly instructed" the Advocate but was helpless when his Advocate refused to follow the particular instructions. Due diligence contemplated by the said proviso is something akin to situation of helplessness or of things, beyond one's own control. Such is not the case here. A party always has the choice of Advocates.

13. A party can of course say, he being not a legal expert, would not know immediately that decision of his Advocate is not sound and so he would not be in a position to promptly exercise his choice of Advocates and would be able to do so only after passage of some time, when he would learn or be told about the incorrectness of approach of his Advocate. Even this justification, in my opinion, cannot answer the test of due diligence. The reason being that a representative or Advocate and the party being represented in a case are not two separate identities in that case, so far as conduct of the case is concerned. Whatever an Advocate does on behalf of the client is considered to be done by the party himself. The acts of the Advocate before the Court are binding upon the party he represents and what he submits before the Court on facts is only what the party says and what he says in law is with the approval, express or assumed, of the party. In other words, all actions taken before the Court by an Advocate, are the actions of the party. So, there is no splitting of concept of due diligence, one of the party and the other of the Advocate, so as to enable the party to be excused for negligence of the Advocate just by showing his own diligence. If such a ground is to be taken as a good ground, it may provide an effective tool to the lazy and indolent parties to conveniently get over the rigour of due diligence test prescribed under the proviso to Rule 17, Order 6, Civil Procedure Code. All that he would have to do is change the Advocate blaming it on the previous Advocate.

IN THE HIGH COURT OF BOMBAY AT GOA

W.P. No. 625 of 2013

Decided On: 11.04.2014

Conception Fernandes Vs.Tasneem Shaikh

Hon'ble Judges/Coram:

S.B. Shukre, J.

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