Whether court can allow new plea to added by way of consequential amendment?

 In Gurdial Singh and others (supra), the Hon'ble Supreme Court in para 19 of its judgment has observed thus:

"19. When one of the parties has been permitted to amend his pleading, an opportunity has to be given to the opposite party to amend his pleading. The opposite party shall also have to make an application under Order 6, Rule 17, Civil Procedure Code which, of course, would ordinarily and liberally be allowed........................................."

It has been further observed that if leave to amend the pleadings was granted then permission to the other party to consequentially amend the pleadings is normally granted. It has been observed that no new plea can be permitted to be added in the garb of a consequential amendment though it can be applied by way of an independent amendment. Further reference has been made to provisions of Order VI, Rule 7 of the Code and it has been observed that no pleading except by way of amendment can raise a new ground or contain an allegation of fact inconsistent with the previous pleadings.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 6562 of 2015

Decided On: 30.06.2016
 Mohammed Abdul Wahid Vs.Niloger and Ors.

Hon'ble Judges/Coram:
A.S. Chandurkar, J.

Citation: LEX(BOM)2016 6 236

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Whether a party can be permitted to raise new plea which is not pleaded ?

It may be noted here that there is a fundamental difference between a case of raising additional ground based on the pleadings and the material available on record and a case of taking a new plea not borne out by the pleadings. In the former case no amendment of pleadings is required whereas in the latter it is necessary to amend the pleadings. The Court/Rent Controller in its discretion, with a view to do complete justice between the parties, may allow a party either to raise additional ground or take a new plea, as the case may be, if the circumstances so justify like a plea based on subsequent events. Whereas in the former situation, the case can be disposed on the material on record but in the latter case the pleadings will have to be amended and for that reason the parties have to be given reasonable opportunity to file further pleadings and adduce necessary evidence.

IN THE SUPREME COURT OF INDIA

C.A. No. 7346 of 1997

Decided On: 16.08.1999

J. Jermons Vs. Aliammal & Ors.

Hon'ble Judges/Coram:

V.N. Khare and S.S.M. Quadri, JJ.

Citation:(1999) 7 SCC 382

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Whether it is permissible to take new plea in consequential amendment?

 Rule 17 of Order VI provides for amendment of pleadings. Pleading shall mean plaint and written statement (see Order VI Rule 1). If the plaint is amended, the defendant gets a right to amend his written statement to answer the contentions put forward in the amended plaint. The defendant may file an additional written statement in respect of the matters covered by the amendment of the plaint. As provided in Rule 9 of Order VIII, no pleading subsequent to the written statement of a defendant other than by way of defence to set off or counter claim shall be presented except by leave of the Court and upon such terms as the Court thinks fit. But the Court may, at any time, require a written statement or additional written statement from any of the parties. As a matter of practice, Courts allow additional written statement to be filed after the plaint is amended. Such practice is recognised by the Supreme Court in Gurdial Singh and others v. Raj Kumar Aneja and others, MANU/SC/0077/2002 : AIR 2002 SC 1003, wherein it was held:

"18. When one of the parties has been permitted to amend his pleading, an opportunity has to be given to the opposite party to amend his pleading. The opposite party shall also have to make an application under Order 6, Rule 17 of the CPC which, of course would ordinarily and liberally be allowed. Such amendments are known as a consequential amendments. The phrase "consequential amendment" finds mention in the decision of this Court in Bikram Singh and others v. Ram Baboo and others, MANU/SC/0013/1981 : AIR 1981 SC 2036. The expression is judicially recognized. While granting leave to amend a pleading by way of consequential amendment the Court shall see that the plea sought to be introduced is by way of an answer to the plea previously permitted to be incorporated by way of amendment by the opposite party. A new plea cannot be permitted to be added in the garb of a consequential amendment, though it can be applied by way of an independent or primary amendment.

19. Some of the High Courts permit, as matter of practice, an additional pleading, by way of response to the amendment made in the pleadings by opposite party, being filed with the leave of the Court. Where it is permissible to do so, care has to be taken to see that the additional pleading is confined to an answer to the amendment made by the opposite party and is not misused for the purpose of setting up altogether new pleas springing a surprise on the opposite party and the Court. A reference to Order VI Rule 7 of the CPC is apposite which provides that no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same."

IN THE HIGH COURT OF KERALA

O.P.(C) No. 496 of 2011

Decided On: 27.10.2014

 Indira Bhai

Vs.

Madhusoodanan

Hon'ble Judges/Coram:

K.T. Sankaran, J.

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When new plea of hardship can not be raised in second appeal?

 Ld. Senior Counsel argued that, point of hardship ought to
have been considered by the Courts. This point was never raised by
the defendant or his L.Rs. On this point, the ld. Counsel for the
plaintiff/present respondent placed reliance upon the decision of the
Apex Court in the case of Prakash Chandra Versus Narayan
reported in ( 2012) 5 SCC 403. In this case, the Apex Court has laid
down that there needs to be a specific contention about hardship and
issue also needs to be framed on that point. In view of this position of
law, this Court holds that, at this stage, such contention made by the

defendant cannot be considered.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
SECOND APPEAL NO. 132 OF 2015
 Shakuntala W/o Yeshwant Bhujange,
VERSUS
 Chandrakant S/o Hiraman Bhujange,
 CORAM : T. V. NALAWADE, J.
 DATE : 30TH SEPTEMBER, 2015.
Citation; 2016(2) ALLMR342

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When new plea of Repugnancy and implied repeal can not be permitted to be raised before supreme court?

One other contention of Shri Cama needs to be noticed.
Shri Cama argued before us that the 1969 Act being
inconsistent with the Contract Labour (Regulation and Abolition)
Act, 1970 would be repugnant to the said Act and therefore
invalid under Article 254 of the Constitution. He candidly
admitted that no such ground had been raised or argued before
the High Court, but asked that the Supreme Court allow him to
raise this plea as it is a pure question of law. We are afraid that
this is not possible for the reason that even if Shri Cama were
to be correct in his submission that the Central Parliamentary
Act of 1970 would impliedly repeal the 1969 State Act, yet
Section 30(1) of the said Act provides that despite the
provisions of the 1970 Act being allegedly inconsistent with the
1969 State Act, yet if contract labour employed in an
establishment are entitled to benefits which are more
favourable to them than those to which they would be entitled
under the 1970 Act, the contract labour shall continue to be
entitled to more favourable benefits, notwithstanding that they

also receive benefits in respect of other matters under the
Central Parliamentary Act. This being the case, it was
incumbent upon the writ petitioner not only to take up the plea
of repugnancy and implied repeal but also to state as a fact that
what the workmen would be entitled to under the 1969 State
Act would not be as beneficial as what they would be entitled to
under the 1970 Central enactment. This would then give the
respondent Board, in turn, an opportunity of either admitting or
denying this factual averment. There being no pleading to this
effect in the writ petition before the High Court, it is clear that it
is not possible for us to accede to Shri Cama’s request to go
into the argument on repugnancy and implied repeal.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9999 OF 2010
PEPSICO INDIA HOLDING P. LTD. …APPELLANT

VERSUS
GROCERY MARKET & SHOPS BOARD
& ORS. ...RESPONDENTS
Dated;February 12, 2016.
Citation;(2016) 4 SCC493

R.F. Nariman, J.

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Whether eviction suit filed by brother without joining sister as party is tenable?

Coming to the first question, in our considered opinion, the High Court erred in holding that the daughter of late A. Radhakrishnan, i.e., Tmt. R. Kanjana was a necessary party to the eviction petition filed by the appellants and hence failure to implead her rendered the eviction petition as not maintainable. This finding of the High Court, in our view, is against the law laid down by this Court in the case of Dhannalal (supra), wherein it is laid down that it is not necessary to implead all the co- owners in the eviction petition.

38) In the light of law laid down in the case of Dhannalal (supra), in our view, it was not necessary for the appellants to implead the Tmt. R. Kanjana – the daughter of late A. Radhakrishnan in the eviction petition. Even otherwise, as rightly argued by learned counsel for the appellants, the High Court should not have allowed respondent No.1 to raise such objection for the first time in the revision because it was not raised in the courts below. Be that as it may, the daughter having been later impleaded in the proceedings, this objection was not even available to respondent No.1.

Supreme Court of India

Tmt. Kasthuri Radhakrishnan & Ors vs M.Chinniyan & Anr on 28 January, 2016

Bench: J. Chelameswar, Abhay Manohar Sapre

Reportable
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5158 OF 2009

Citation;(2016)3 SCC296

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Whether High court can entertain plea raised by plaintiff when there is no pleading to that effect in plaint?

 Significantly, the above notwithstanding, in the plaint, the
plaintiffs while acknowledging the rubber plantation on the suit
land raised by the respondent-company, the assignee/transferee, in
possession in place of the original lessee, did assert that from prior
to the initiation of the lease in the year 1918, there was a private
forest on the suit land. They contended, to reiterate, that as the
lease period had expired after 36 years, the company had no right
to retain the possession of the suit land and claim fixity of tenure.
Noticeably however, the plaintiffs complained of non-payment of
lease rent at the rate of 693.75 paisa per annum by the
respondent-company from the year 1979 for which a decree for
arrear rent was also prayed for. Axiomatically thus, the plaintiffs
acknowledged and approved the possession of the leasehold land by
the respondent-company even after the expiry of the period of lease
in 1954 and did receive the annual rent at the same rate, even on
their admission up to the year 1978. In course of the arguments
before this Court, however, the learned senior counsel for the
appellant has not pursued the plea based on private forest and has
confined the assailment qua “plantation” as per clause 3 (1) (viii) of
Act 1963. The parties are also not at issue that on the date of the
lease, no plantation as defined in Section 2 (44) did exist on the
demised land. The plaint, to reiterate does not refer to such
plantation on the date of the lease, as well. In that view of the
matter, the appellant’s plea based on Section 3 (1) (viii) lacks
foundation in the plaint and in the strict sense of the term as the
debate has its genesis in a suit, ought not to have been entertained
by the High Court. This is more so, as the records substantiate that
the contention based on “plantation” was raised for the first time

before that forum.

 {REPORTABLE}
IN THE SUPREME COURT OF INDIA
 CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5163/2012
N K RAJENDRA MOHAN 
 Vs.
THIRVAMADI RUBBER CO. LTD & ORS 
 Dated: 02 July, 2015
Amitava Roy,J.
Citation;(2015) 9 SCC326

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Whether New plea can be raised before High court if there is no pleading and evidence adduced before lower court?

The contention urged on behalf of the respondent-firm that the Award of compensation of Rs.2 Lakhs in lieu of the reinstatement and 50% back wages by the High Court is on account of the alleged closure of the respondent establishment is neither supported by any pleading nor any evidence has been adduced before the Labour Court or this Court in that regard by the respondent-establishment. If any additional material is produced before the High Court, the same would be impermissible in law for the reason that the respondent-employer was required to plead with regard to the alleged closure and substantial evidence must be produced in support of the same before the Labour Court at the first instance, and no such plea has been taken before the Labour Court by them. In absence of such a plea, producing additional documents by the respondent-establishment before the High Court is totally impermissible in law for the reason that the High Court’s jurisdiction is to examine the correctness of the Award passed by the Labour Court in exercise of its judicial review power under Article 227 of the Constitution of India which is very limited. In the present case, even if we consider the facts, there is no additional material evidence produced on record before the High Court and it has no jurisdiction to receive the same and render its findings. Apart from the said reason no other reason has been assigned by the High Court in its judgment and order for modifying the Award passed by the Labour Court. Therefore, the legal contention urged in this regard on behalf of the respondent-establishment is misconceived and the same is liable to be rejected.

Supreme Court of India

Raj Kumar Dixit vs M/S. Vijay Kumar Gauri Shanker, ... on 12 May, 2015

Bench: Fakkir Mohamed Kalifulla, V. Gopala Gowda

NON-REPORTABLE

Citation;(2015) 9 SCC345

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Whether pleading can be amended at appellate stage permitting raising of new plea?

 It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The Court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting malafide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost.

 In Pandit Ishwardas vs. State of Madhya Pradesh and Ors., AIR 1979 SC 551, this Court observed :-

“We are unable to see any substance in any of the submissions. The learned counsel appeared to argue on the assumption that a new plea could not be permitted at the appellate stage unless all the material necessary to decide the plea was already before the Court. There is no legal basis for this assumption. There is no impediment or bar against an appellate Court permitting amendment of the pleadings so as to enable a party to raise a new plea. All that is necessary is that the Appellate Court should observe the well-known principles subject to which amendments of pleadings are usually granted. Naturally, one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the Appellate stage the reason why it was not sought in the trial court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an Appellate Court permitting an amendment at the appellate stage merely because the necessary material is not already before the Court.”

Supreme Court of India

Mahila Ramkali Devi And Ors vs Nandram Thr. Lrs.& Ors on 14 May, 2015

Bench: M.Y. Eqbal, Amitava Roy

  Citation; 2015(4) ALLMR 426 SC    

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Whether plea raised in high court though not pleaded in lower court can be entertained?

New plea raised before High Court in writ petition under Art. 227 of Constitution of India - Issue as to maintainability of

instant claim petition under MV Act neither pleaded by opposite party nor any evidence led by it in relation to that issue

during trial - That apart, opposite party not pressed the said issue framed by trial court - On such facts, held, High Court

erred in adjudicating upon the said issue raised for the first time in writ petition under Art. 227 of Constitution of India,

Montford Bros. of St. Gabriel v. United India Insurance, (2014) 3 SCC 394

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