Holding

An amendment to the written statement that does not introduce a new cause of action and is not inconsistent with the existing defence is permissible, and the court must not reject it on technical grounds of delay or alleged prejudice.

Summary

The plaintiff B.K.N. Pillai sued P. Pillai for eviction, alleging that the defendant was a licensee. The defendant initially pleaded that he was a lessee, but later sought to amend his written statement to add an alternative defence that, if he were a licensee, his licence was irrevocable under Section 60(b) of the Indian Easements Act, 1882, and that the suit was barred by limitation. Both the trial court and the Kerala High Court rejected the amendment, holding that it amounted to a withdrawal of the earlier admission and would prejudice the plaintiff. The Supreme Court held that the amendment did not introduce a new cause of action, was not inconsistent with the existing defence, and that the delay could be compensated by costs; therefore, the amendment should be allowed. Consequently, the appeals were allowed, permitting the defendant to amend his written statement subject to payment of licence arrears and costs.

Issues considered

Whether an amendment to the written statement after a delay is permissible under Order 6 Rule 17 CPC when it does not create a new cause of action.
Whether the proposed amendment amounts to a withdrawal of an earlier admission and causes irretrievable prejudice to the opposite party.
Whether a defence based on Section 60(b) of the Indian Easements Act, 1882 can be incorporated as an alternative plea.
Whether the limitation defence can be raised through amendment of the written statement.

Legislation cited

Code of Civil Procedure, 1908s. Order 6 Rule 17
Indian Easements Act, 1882s. Section 60(b)

Subjects

amendment of pleadingsOrder 6 Rule 17 CPCIndian Easements Actlicence vs leasecivil procedureprejudicelimitation

Judgment

B.K.N. PILLAI A
v.
P. PILLAI AND ANR.

DECEMBER 13, 1999

[S.P. KURDUKAR AND R.P. SETHI, JJ.] B

Civil Procedure Code, 1908-0rder 6 Rule 17-Pleadings-Amendment
of-All amendments of pleadings should be allowed which are necessary for
determination of the real controversies in the suit provided the proposed C
amendment does not alter or substitute a new cause of action on t!ze basis
of which the original /is was raised or defence taken-In such cases court
should not ·adopt hypertechnical approach.

Respondent/plaintiff filed suit against appellant/defendant seeking his
eviction on the ground that he was a licensee. Appellant/defendant pleaded in D
his written statement that he was not a licensee but a lessee, but after a
prolonged delay he filed an application for amendment of the written statement,
seeking to incorporate the plea that in case he is not held lessee, he was
_,,. entitled to the benefit of Section 60(b) of Indian Easement Act, 1882 according
to which his licence cannot be revoked by the grantor.
E
The trial court, and in appeal, the high Court, rejected the plea on the
ground that the proposed amendment amounted to withdrawal of the statement
made in the written statement.

Allowing the appeals, this Court
F
HELD: 1. The finding of the High Court that the proposed amendment
virtually amounted to withdrawal of any admission made by the appellant and
that such withdrawal was likely to cause irretrievable prejudice to the
resp_ondent, cannot be agreed to. The plea sought to be raised is neither
inconsistent nor repugnant to the pleas already raised in defence. The
alternative plea sought to be incorporated in the written statement is in fact G
the extension of the pleas of the respondent/plaintiff and rebuttal to the issue
framed regarding liability of the appellant of being dispossessed on proof of
the fact that he was a licensee liable to be evicted in accordance with the
}\TOVisions of law. The mere fact that the appellant had filed the application
271 H
272 SUPREME COURT REPORTS [1999) SUPP. 5 S.C.R.

A after a prolonged delay could not be made a ground for rejecting his prayer
particularly when the respondent/plaintiff could be compensated by costs.
(276-E; 276-C-EJ

2.1. The purpose and object of Order 6 Rule 17 CPC is to allow either
party to alter or amend his pleadings in such manner and on such terms as
B may be just The power to allow the amendment is wide and can be exercised
at any stage of the proceedings in the interest of justice. It is true that the
amendment cannot be claimed as a matter of right and under all
circumstances. But it is equally true that the courts while deciding such
prayers should not adopt hypertechnical approach. Liberal approach should
C be the general rule particularly in cases where the other side can be '
compensa$ed with the costs. Technicalities of law should not be permitted to
hamper the courts in the administration of justice between the parties.
Amendments are allowed in the pleading to avoid uncalled for multiplicity of
litigation. (273-G-H; 274-A)

D A.K. Gupta & Sons v. Damodar Valley Corporation, (1966) 1 SCR 796;
Smt. Ganga Bai v. Vijay Kumar and Ors., (1974) 2 SCC 393 and Ganesh
Trading Company v. Moji Ram, (1978) 2 SCC 91, referred to.

2.2. The principles applicable to the amendments to the plaint are equally
E applicable to the amendments of the written statement The courts are more
generous in allowing the amendment of the written statement as question of
prejudice is less likely to operate in that event The defendant has a right to
take alternative plea in defence which is subject to an exception that by the
proposed amendment other side should not be subjected to injustice and that
any admission made in favour of the plaintiff is not withdrawn. All amendments
F of the pleadings should be allowed which are· necessary for determination of
the real controversies in the suit provided the proposed a~endment does not
alter or substitute a new cause of action on the basis of which the original lis
was raised or defence taken. Inconsistent and contradictory allegations in
negation to the admitted position of facts or mutually destructive allegations
of facts should not be allowed to be incorporated by means of amendment to
G the pleadings. Proposed amendment should not cause such prejudice to the
other side which can not be compensated by costs. No amendment should be
allowed which amounts to or relates in defeating a legal right accruing to the
opposite party on account of lapse of time. The delay in filing the petition for
amendment of the pleadings should be properly compensated by costs and
H error or mistake which, if not fraudulent, should not be made a ground for
B.K.N. PILLAI v. P. PILLAI [SETHI, J.] 273
rejecting the application for amendment of plaint or written statement. A
[275-F-H; 216-A-BJ

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7222-23 of
1999.
From the Judgment Order dated 28.7.99 in CRP No. 1251199 & 1252/99 B
of the High Court of Kerala at Emakulam.

T.L. Vishwanatha Iyer, S. Balakrishnan, K.L. Rathee, Subramonium Prasad,
M.R. Rajendran Nair, K.M.K. Nair and Vipin Nair for the appearing parties.

The Judgment of the Court was delivered by
c
SETHI, J. Leave granted. Heard.
The respondent-plaintiff filed a suit against the appellant-defendant
praying for the grant of mandatory and prohibitory injunction seeking eviction
allegedly on the ground of his being a licensee. In the written statement filed
the appellant herein pleaded that he was not a licensee but a lessee. During D
the trial of the suit the appellant filed an application for amendment of the
written statement to incorporate an alternative plea that in case the court
found that the defendant was a licensee, he was not liable to be evicted as
according to him the licence was irrevocable. He further wanted to add a plea
that first and second prayers in the plaint were barred by limitation and that
as acting upon the licence he has executed works of permanent nature and E
incurred expenses in execution of the same his licence cannot be revoked by
the grantor under Section 60(b) of the Indian Eastements Act, 1882. The
prayer was rejected by the Trial Court as also by the High ~urt on the
ground that the proposed amendment, was mutually destructive which, if
allowed, would amount to permitting the defendant to withdraw the admission F
allegedly made by him in the main written statement.

The-purpose and object of Order 6 Rule 17 CPC is to allow either party
to alter or amend his pleadings in such manner and on such terms as may
be just. The power to allow the amendment is wide and can be exercised at
any stage of the proceedings in the interests of justice on the basis of G
guidelines laid down by various High Courts and this Court. It is true that
the amendment cannot be claimed as a matter of right and under all
circumstances. But it is equally true that t~e courts while deciding such
prayers should not adopt hypertechnical approach. Liberal approach should
be the general rule particularly in cases where the other side can be
compensated with the costs. Technicalities of law should not be permitted to H
274 SUPREME COURT REPORTS [1999] SUPP. 5 S.C.R.

A hamper the courts in _the administration of justice between the parties.
0

Amendments are allow~d in the pleadings to avoid uncalled for multipli~ity
of litigation.
This Court in A.K Gupta & Sons v. Damodar Valley Corporation,
[ 1966] I SCR 796 held : .,
B "The general rule, no doubt, is that a party is not allowed by amendment
to set up a new case or a new cause of action particularly when a suit
or new case or cause of action is barred: Weldon v. Neale, (1887) 19
QBD 394. But it is also well recognised that where the amendment
does not constitute the addition of a new cause of action or raise a
c different case, but amounts to no more than a different or additional
approach to the same facts, the amendment will be allowed even after
the expiry of the statutory period of limitation: See Charan Das v.
Amir Khan, AIR (1921) PC 50 and L.J. Leach and Company Limited
and another v. Jardine Skinner and Company, [1957] SCR 433.

D The principal reasons that have led ·to the rule last mentioned are,
first, that the object of courts and rules of procedure is to decide the
rights of the parties and not to punish them for their mistakes (Cropper
v. Smith, (1884) 26 Ch.D. 700) and secondly, that a party is strictly not
entitled to rely on the statute of limitation when what is sought to be
brought in by the amendment can be said in substance to be already
E in the pleading sought to be amended in Kishandas Rupchand v. ...,_
Rachappa Vithoba, (1909) ILR 33 Born. 644 approved in Pirgonda
Hongonda Patil v. Kalgonda Shidgonda Patil, [1957] SCR 595.
The e~pression 'cause of action' in the present context does not mean

F
'every fact which it is material to be proved to entitle the plaintiff to
succeed' as was said in Cooke v. Gill, (1873) 8 CP 107, in a different
f.
context, for if it were so, no material fact could ever be amended or
added and, of course, no one would want to change or add an
immaterial allegation by amendment. That expression for the present
purpose only means, a new claim made on a new basis constituted by
new facts. Such a view was taken in Robinson v. Unicos Property
G
Corporation Limited, ( 1962) 2 All ER 24, and it seems to us to be the
only possible view to take. Any other view would make the rule futile.
The words 'new case' hfive been understood to mean 'new set of
ideas': Doman v.J.W Ellis and Company Limited, (1962) 1 All ER 303.
This also seems to us to be a reasonable view to take. No amendment
H will be allowed to introduce a new set of ideas to the prejudice of any
'
B.K.N. PILLAI v. P. PILLAI [SETHI, J.] 275
right acquired by any party by lapse of time." A
Again in Smt.Ganga Bai v. Vijay Kumar & Ors., [1974] 2 SCC 393 this
Court held:

"The power to allow an amendment is undoubtedly wide and may at
any stage be appropriately exercised in the interest of justice, the law B
of limitation notwithstanding. But the exercise of such far reaching
discretionary powers is governed by judicial considerations and wider
the discretion, greater ought to be the care and circumspection on the
part of the Court."

In Mis. Ganesh Trading Company v. Moji Ram, [1978] 2 SCC 91 it was C
held:-

"It is clear from the foregoing summary of the main rules of pleadings
and provisions for the amendment of pleadings, subject to such terms
as to costs and giving of all parties concerned necessary opportunities D
to meet exact situations resulting from amendments, 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
short coming 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 E
not incapable of being rectified so long as remedial steps do not
unjustifiably injure rights accrued."

The principles applicable to the amendments of the plaint are equally applicable
to the amendments of the written statements. The courts are more generous
in allowing the amendment of the written statement as question of prejudice F
is less likely to operate in that event. The defendant has a right to take
alternative plea in defence which, however, is subject to an exception that by
the proposed amendment other side should not be subjected to injustice and
that any admission made in favour of the plaintiff is not withdrawn. All
amendments of the pleadings should be allowed which are necessary for G
determination of the real controversies in the suit provided the proposed
amendment does not alter or substitute a new cause of action on the basis
of which the original !is was raised or defence taken. Inconsistent and
contradictory allegations in negation to the admitted position of facts or
mutually destructive allegations of facts should not be allowed to be
incorporated by means of amendment to the pleadings. Proposed amendment H

-
276 SUPREME COURT REPORTS [1999] SUPP. 5 S.C.R.

A should not cause such prejudice to the other side which can not be
compensated by costs. No amendment should be allowed which amounts to
or relates in defeating a legal right accruing to the opposite party on account
of lapse of time. The delay in filing the petition for amendment of the pleadings
should be properly compensated by costs and error or mistake which, if not
B fraudulent, should not be made a ground for rejecting the application for
amendment of plaint or written statement.

In the appeals the appellant-defendant wanted to amend the written
statement by taking a plea that in case he is not held a lessee, he was entitled '
s'
to the benefit of Section 60(b) of the Indian Eastements Act, 1882. Learned
C counsel for the appellant is not interested in incorporation of the other pleas
raised in the application seeking amendment. The plea sought to be raised is
neither inconsistent nor repugnant to the pleas already raised in defence. The
alternative plea sought to be incorporated in the written statement is in fact
the extension of the plea of the respondent- plaintiff and rebuttal to the issue
framed regarding liability of the appellant of being dispossessed on proof of
D the fact that he was a licensee liable to be evicted in accordance with the
provisions of law. The mere fact that the appellant had filed the application
after a prolonged delay could not be made a ground for rejecting his prayer
particularly when the respondent-plaintiff could be compensated by costs.
We do not agree with the finding of the High Court that the proposed ,-
'
E amendmertt virtually amounted to withdrawal of any admission made by the
appellant and that such withdrawal was li_kely to cause irretrievable prejudice
to the respondent.

It has been stated on behalf of the respondent at the Bar that the
appellant having not come to the court with clean hands is not entitled to any
F discretionary relief. It is contended that the appellant has not paid any licence
fee as per the terms of the additional licence granted in his favour. It has been
stated that in case the appeals are allowed the appellant-defendant be directed
to pay all the arrears of the licence fee. We find substance in the submission
made on behalf of the respondents.
G Under the circumstances, the appeals are allowed by setting aside the
orders impugned. The appellant-defendant is permitted to amend the written
statement to the extent of incorporating the plea of his entitlement to the
benefit of Section 60(b) of the Indian Easements Act, 1882 only subject to his
paying all the arrears on account of licence fee and costs assessed at Rs.
H 3,000 within a period of one month from the date the parties appear in the Trial
B.K.N. PILLAI v. P. PILLAI [SETHI, J.] 277
Court. The payment and receipt of the arrears of licence fee shall be without A
prejudice to the rights of the parties which may be adjudicated by the trial
court. Costs of the appeals are made easy.

- K.K.T. Appeals allowed.