Holding

Amendment of a written statement is permissible under Order 6 Rule 17 CPC unless it causes serious prejudice, and the courts must adopt a liberal approach, allowing additional defences and inconsistent pleas even after the trial has not commenced.

Summary

The plaintiff filed a declaratory suit claiming ownership of certain land, alleging that sale deeds in his parents' names were benami transactions. The defendants denied the claim and later sought to amend their written statement to raise a limitation defence, assert that the parents had sufficient income to pay the price, and claim joint ownership after the parents' death. Both the trial court and the High Court rejected the amendment, prompting a Special Leave Petition before the Supreme Court. The Court examined the liberal policy of Order 6 Rule 17 CPC, noting that amendment of a written statement is not bound by the same restrictions as amendment of a plaint and that courts may allow additional defences unless serious prejudice is shown. It held that the limitation plea could be introduced, no inadmissible admissions were being withdrawn, and inconsistent pleas are permissible in a written statement. Consequently, the Supreme Court set aside the lower courts' orders and allowed the amendment, directing the defendants to file a revised written statement.

Issues considered

Whether the amendment of the written statement seeking to introduce a limitation defence and other alternative pleas should be allowed under Order 6 Rule 17 of the CPC.
Whether the amendment would cause prejudice or withdraw admissions made in the original written statement.
Whether inconsistent or alternative pleas can be raised in a written statement.
Whether the trial had commenced, thereby invoking the proviso to Order 6 Rule 17 restricting amendment.

Legislation cited

Code of Civil Procedure, 1908s. Order 6 Rule 17, s. Proviso to Order 6 Rule 17 (as inserted by the CPC (Amendment) Act, 2002)

Subjects

Amendment of pleadingsOrder 6 Rule 17Civil ProcedureLimitation defenceInconsistent pleasTrial commencementSpecial Leave PetitionDeclaratory suitBenami transaction

Judgment

BALDEV SINGH AND ORS. ETC. A
v.
MANOHAR SINGH AND ANR. ETC.

AUGUST 3, 2006

[DR. AR. LAKSHMANAN AND TARUN CHATTERJEE, JJ.] B

Code of Civil Procedure, 1908:

Order 6, Rule 17--Amendment of pleadings-Governing principles--
Plaintifffiled a suit for a declaration that he was the owner and in possession C
of the suit property alleging that the sale deeds executed in the names of his
parents were benami transactions-The defendants filed their written statement
denying that there was any agreement to sell the suit property or that the suit
property was owned and possessed by the plaintiff-The defendants filed an
application for amendment of the written statement alleging that the suit was D
barred by limitation, that the father of the parties had sufficient income to pay
the sale price of the suit property and that on the death of their parents the
names of the plaintiff and the defendants had been mutated in equal shares
in respect of the suit property-The High Court as well as the trial court
rejected the application for amendment-Correctness of--Held: Wide power
and unfettered discretion has been conferred on the Court to allow amendment E
of the pleadings-Courts should be extremely liberal in granting the prayer
for amendment of pleadings unless serious injustice or irreparable loss is
caused to the other side-Amendment of a plaint and amendment of a written
statement are not necessarily. governed by exactly the same principle--
Therefore, the courts should be more liberc:l in allowing amendment of the F
written statement than of plaint-Inconsistent pleas can be raised by the
defendants in the written statement although the same may not be permissible
in the case of a plaint-Amendment allowed

Words & Phrases:
G
,.. "Commencement of trial"--Meaning of--Jn the context of proviso to
Order 6, Rule 17 of the Code of Civil Procedure, I 908.

The plaintiff/respondent No. I filed a suit for a declaration that he
was the owner and in possession of the suit property alleging that the sale
259 H
260 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A deeds executed in the names of his parents were benami transactions. The
appellants/defendants filed their written statement denying that there \Vas
any agreement to sell the suit property or that the suit property was owned
and possessed by the plaintiff/respondent No. I.

During the pendency of the suit, the appellants/defendants filed an
B application for amendment of the written statement alleging that the suit
was barred by limitation, that the father of the parties had sufficient
income to pay the sale price of the suit property and that on the death of
their parents the names of the plaintiff and the defendants had been
mutated in equal shares in respect of the suit property. The High Court
C as well as the Trial Court rejected the application for amendment of the
written statement. Hence the appeal.

The following question arose before the Court:

Whether the amendment sought for in the written statement, in the
D facts and circumstances of the case, ought to have been allowed or not?

Allowing the appeal, the Court

HELD: I. It is well settled that Courts should be extremely liberal
in granting the prayer for amendment of pleadings unless serious injustice
E or irreparable loss is caused to the other side. (263-G-H(

Ma Shwe Mya v. Maung Mo Hnaung, AIR (1922) PC 249, referred
to.

2. In view of the provisions made under Order 6 Rule 17 of the Code
p of Civil Procedure, 1908 it cannot be doubted that wide power and
unfettered discretion has been conferred on the Court to allow amendment
of the pleadings to a party in such manner and on such terms as it appears
to the Court just and proper. While dealing with the prayer for
amendment, it would also be necessary to keep in mind that the Court
shall allow amendment of pleadings if it finds that delay in disposal of
G suit can be avoided and that the suit can be disposed of expeditiously.
(264-E(

3.1. The plea of limitation can be allowed to be raised as an

-
additional defence by the appellants. Accordingly, there is no reason as
H to why amendment of the written statement introducing an additional plea
BALDEV SINGH & ORS. ETC. v. MANOHAR SINGH 261
of limitation could not be allowed. A
Ragu Thilak D. John v. S. Rayappan, [20011 2 SCC 472, relied on.

3.2. The next question is that if such an amendment is allowed,
certain admissions made would be allowed to be taken away which are
not permissible in law. But there is no such admission of the appellants B
which was sought to be withdrawn by way of amending the written
statement. 1265-F-H]

3.3. The powers of the Court are wide enough to permit amendment
of the written statement by incorporating an alternative plea of ownership
in the application for amendment of the written statement. That apart, C
the facts stated in the application for amendment were in fact an
elaboration of the defence case. Even !f there was some admission in the
evidence as well as in the written statement, it was still open to the parties
to explain the same by way of filing au application for amendment of the
written statement. (266-0-F] D
Estral/a Rubber v. Dass Estate (P) Ltd., (2001] 8 SCC 97, relied on.

4.1. It is now well-settled that an amendment of a plaint and
amendment of a written statement are not necessarily governed by exactly
the same principle. It is true that some general principles are certainly E
common to both, but the rule that the plaintiff cannot be allowed to amend
his pleadings so as to alter materially or substitute his cause of action or
the nature of his claim has necessarily no counterpart in the law relating
to amendment of written statement. Adding a new ground of defence or
·substitution or altering· a defence does not raise the same problem as·
adding, altering or substituting a new cause of action. Accordingly, in the F
case of amendment of written statement, the courts are inclined to be more
liberal in allowing amendment of the written statement than of plaint and
the question of prejudice is less likely to operate with same rigour in the
former than in the latter case. (267-B-DI

-·
4.2. Inconsistent pleas can be raised by the defendants in the written G
statement although the same may not be permissible in the case of a plaint.
(267-E-F]

Mis. Modi Spinning and Weaving Mills Co. Ltd v. Mis. Ladha Ram &
Co., ( 1976) 4 SCC 320, relied on.
H
262 SUPREME COURT REPORTS [20061 SUPP. 4 S.C.R.

A 5. Commencement of trial as used in proviso to Order 6 Rule 17
CPC must be understood in the limited sense as meaning the final hearing
of the suit, examination of witnesses, filing of documents and addressing
of arguments. As the parties are yet to file their documents, there is no
reason to reject the application for amendment of the written statement
B in view of proviso to Order 6 Rule 17 CPC which confers wide power and
unfettered discretion to the Court to allow an amendment of the written
statement at any stage of the proceedings. 1268-A-BI

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3362 of2006.

C From the Order dated 7.4.2005 of the High Court of Punjab and Haryana
at Chandigarh in Civil Revision Nos. 1750 and 1572 of 2005.

Nidesh Gupta and S. Janani for the Appellant.

O.P. Aggarwal, Sudama Ojha, Maya Rao and Anurag Kumar for the
D Respondents.

The Judgment of the Court was delivered by

TARUN CHATTERJEE. Leave granted.

An order rejecting an application for amendment of a written statement
E passed by the Additional Civil Judge (Senior Division), Nawanshahar, Punjab
and Haryana and affirmed by a learned Judge of the Punjab and Haryana
High Court, is now under challenge before this Court by way of a Special
Leave Petition under Article 136 of the Constitution of India filed at the
instance of the defendants/ appellants excepting the Respondent No.2 herein.
F A suit has been filed by the plaintiff/respondent No. I (Manohar Singh)
for a declaration that he is the owner and in possession of 40 Kanals and 15
Medas comprised in Kh. No. 16(8-0), 17(8-0), 19(8-0).20/I (7-4), 25/1( 1-11)
of rect No.19 of Khewat No.212 Khatauni No. 163 as fully described to the
schedule of the plaint. (hereinafter referred to as "'the suit property'').

-
G
The case set up by the plaintiff/respondent No. I was that the sale deeds
executed on 24.6.1968 and 25.6.1968 in the names of his parents were benami
transactions and the plaintiff/respondent No. I was the real owner of the same
as his parents had no money to pay the consideration money of the suit
property and that the sale deeds were executed pursuant to an oral agreement
H to sell which was entered into only by the plaintifflrespondent No. I. The ...
BALD EV SINGH & ORS. ETC. v. MANOHAR SINGH [CHATTERJEE, J.)263

appellants entered appearance and filed their written statement, inter .a/ia, A
denying that there was any agreement to sell the suit property or that the suit
property was owned and possessed by the plaintiff/respondent No. I. It has
also been pleaded in the written statement that the defendant No.1 /appellant
No. I is the actual owner and in possession of the suit property because he
was residing in India continuously in village Bhin without any interruption B
from any one whereas the plaintiff is residirg permanently in Canada. During
the pendency of the suit, an application for amendment of the written statement
was filed by the appellants seeking its amendment in which it was alleged
that the suit was barred by limitation and that the plaintiff/respondent No. I
had no money to pay the sale price of the suit property, and that the father
of the parties, who was serving as a Foreman in the Central Government and C
their mother had sufficient income to pay the sale price of the suit property
and on the death of their parents the names of the plaintiff and the defendants
have been mutated in equal shares in respect of the suit property. Accordingly,
the defendants/appellants sought for amendment of the written statement in
the manner indicated herein earlier. It was further pleaded in the application
for amendment of the written statement that the amendment sought for was D
in fact an elaboration of the case made out in the written statement. The High
Court as well as the Trial Court rejected the application for amendment of the
written statement.

Feeling aggrieved by and dissatisfied with the order rejecting the E
application for amendment of the written statement, this Special Leave Petition
has been filed which, on grant of leave, was heard in presence of the learned
couns-::1 for the parties.

We have heard the learned counsel for the parties in detail on the
questiou whether the amendment sought for in the written statement, in the F
facts and circumstances of the present case, ought to have been allowed or
not.

Before we take up this question for our decision, we must consider
some of the principles to be governed for allowing an amendment of the
pleadings. G
It is well settled by various decisions of this Court as well as the High
Courts in India that Courts should be extremely liberal in granting the prayer
for &mendment of pleadings unless serious injustice or irreparable loss is
caused to the other side. In this connection, reference can be made to a
decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung, AIR H
264 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A (1922) P.C. 249 in which the Privy Council observed:

"All rules of courts 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
B liberally exercised, but nonetheless no power has yet been given to
enable one distinct cause of action to be substituted for another, nor
to change by means of amendment, the subject-matter of the suit."

Keeping this principle in mind, let us now consider the provisions
relating to amendment of pleadings. Order 6 Rule 17 of the Code of Civil
C Procedure deals with amendment of pleadings which provides that 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
th1: real questions in controversy between the parties. A bare perusal of this
D provision, it is pellucid that Order 6 Rule 17 of the Code of Civil Procedure
consists of two parts. The first part is that the Court may at any stage of the
proceedings allow either party to amend his pleadings and the second part is
that such amendment shall be made for the purpose of determining the real
controversies raised between the parties. Therefore, in view of the provisions
made under Order 6 Rule 17 of the CPC it cannot be doubted that wide
E power and unfettered discretion has been conferred on the Court to allow
amendment of the pleadings to a party in such manner and on such terms as
it appears to the Court just and proper. While dealing with the prayer for
amendment, it would also be neces>ary to keep in mind that the Court shall
allow amendment of pladings if it finds that delay in disposal of Suit can be
F avoided and that the suit can be disposed of expeditiously. By the Code of
Civil Procedure (Amendment) Act, 2002 a proviso has been added to Order
6 Rule 17 which restricts the Courts from permitting an amendment to be
allowed in the pleadings either of the parties, if at the time of filing an
application for amendment, the trial has already commenced. However, Court
may allow amendment if it is satisfied that in spite of due diligence, the party
G could not have raised the matter before the commencement of trial. So far as
proviso to Order 6 Rule 17 of the Code of Civil Procedure is concerned, we
shall deal with it later.

-
Keeping these principles in our mind, let us now consider whether the
High Court as well as the Trial Court had erred in rejecting the application
H
BALDEV SINGH &ORS. ETC. v. MANOHAR SINGH [CHATTERJEE, J.]265

for amendment of the written statement filed by the appellants. A
A bare perusal of the order rejecting the application for amendment of
the written statement indicates that while rejecting the application for
amendment of the written statement, the High Court as well as the trial court
based their decisions mainly on three grounds. The first ground was that
since the appellants had made certain admissions in the written statement, its B
amendment cannot be allowed permitting the appellants to withdraw their
admission made in the same. Secondly, the question of limitation cannot be
allowed to be raised by way of an amendment of the written statement and
lastly inconsistent pleas in the written statement cannot also be allowed to be
raised by seeking its amendment. C
So far as the second ground for rejection of the amendment of the
written statement is concerned, we do not like to delve in detail in view of
the decision of this Court in the case of Ragu Thilak D.John v. S.Rayappan
and Ors., [200 I) 2 SCC 472. In para 6, this Court observed:
D
"If the aforesaid test is applied in the instant case, the amendment
sought could not be declined. The dominant purpose of allowing the
amendment is to minimize the litigation. The plea that the relief
sought hy way of amendment was barred by time is arguable in the
circumstances of the case, as is evident from the perusal of averments
made in paras 8(a) to 8(t) of the plaint which were sought to be E
incorporated by way of amendment. We feel that in the circumstances
of the case the plea of limitation being disputed could be made a
subject-matter of the issue after allowing the amendment prayed for."
(underlining is ours)

In view of this decision, it can be said that the plea of limitation can F
be allowed to be raised as an additional defence by the appellants. Accordingly,
we do not find any reason as to why amendment of the written statement
introducing an additional plea of limitation could not be allowed. The next
question is that if such amendment is allowed, certain admissions made would
be allowed to be taken away which are not permissible in law. We have G
already examined the statements made in the written statement as well as the
amendment sought for in the application for amendment of the written
statement. After going through the written statement and the application for
amendment of the written statement in depth, we do not find any such
admission of the appellants which was sought to be withdrawn by way of
--· amending the written statement . H

•
266 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A As noted herein earlier, the case set up by the plaintiff/respondent No. I
was that his parents had no money to purchase the suit property and it was
the plaintiff/respondent No. I who paid the consideration money. In the written
statement, this fact was denied and fu1iher it was asserted in the written
statement that the suit property was in fact purchased by their parents and
they had sufficient income of their own. In the application for amendment of
B written statement it was stated that the plaintiff/respondent No. I did not have
any income to pay the consideration money of the suit property and in fact
the parents of the plaintiff/respondent No. I had sufficient income to pay the
sale price. It was only pointed out in the application for amendment that after
the death of their parent;, the suit property was mutated in the joint names
C of the plaintiff/respondent No. 1 and the defendants in equal shares. Therefore,
the question whether certain admissions made in the written statement were
sought to be withdrawn is concerned, we find, as noied herein earlier, there
was no admission in the written statement from which it could be said that
by filing an application for amendment of the written statement, the appellants
had sought to withdraw such admission. It is true in the original written
D statement, a statement has been made that it is the defendant No. 11appellant
No. 1 is the owner and in continuous possession of the suit property but in our
view, the powers of the Court are wide enough to permit amendment of the
written statement hy incorporating an alternative plea of ownership in the
application for amendment of the written statement. That apart, in our view,
E the facts stated in the application for amendment were in fact an elaboration
of the defence case. Accordingly, we are of the view that the High Court as
wi:ll as the Trial Court had erred in rejecting the application for amendment
of the written statement on the ground that in the event such amendment was
allowed, it would take away some admissions made by the defendants/
appellants in their written statement That apart, in the case of Estm/la Rubber
F v. Dass Estate (P) Ltd, [2001] 8 sec 97, this Court held that even there was
some admissions in the evidence as well as in the written statement, it was
still open to the parties to explain the same by way of filing an application
for amendment of the written statement. That apart, mere delay of three years
in filing the application for amendment of the written statement could not be
G a ground for rejection of the same when no serious prejudice is shown to
have been caused to the plaintiff/respondent No. I so as to take away any
accrued right.

Let us now take up the last ground on which the application for
amendment of the written statement was rejected by the High Court as well
H as the Trial Court. The rejection was made on the ground that inconsistent ......
BALD EV SINGH & ORS. ETC. v. MANOHAR SINGH [CHATTERJEE, J.]267

plea cannot be allowed to be taken. We are unable to appreciate the ground A
of rejection made by the High Court as well as the Trial Court. After going
through the pleadings and also the statements made in the application for
amendment of the written statement, we fail to understand how inconsistent
plea could be said to have been taken by the appellants in their application
for amendment of the written statement, excepting the plea taken by the B
appellants in the application for amendment of written statement regarding
the joint ownership of the suit property. Accordingly, on facts, we are not
satisfied that the application for amendment of the written statement could be
rejected also on this ground. That apart, it is now well settled that an
amendment of a plaint and amendment of a written statement are not
necessarily governed by exactly the same principle. It is true that some general C
principles are certainly common to both, but the rules that the plaintiff cannot
be allowed to amend his pleadings so as to alter materially or substitute his
cause of action or the nature of his claim has necessarily no counterpart in
the law relating to amendment of the written statement. Adding a new ground
of defence or substituting or altering a defence does not raise the same
problem as adding, altering or substituting a new cause of action. Accordingly, D
in the case of amendment of written statement, the courts are inclined to be
more liberal in allowing amendment of the written statement than of plaint
and question of prejudice is less likely to operate with same rigour in the
·• former than in the latter case.
E
This being the position, we are therefore of the view that inconsistent
pleas can be raised by defendants in the written statement although the same
may not be permissible in the case of plaint. In the case of Mir. Modi Spinning
and Weaving Mills Co. Ltd & Anr. v. Mis. Ladha Ram & Co., [I976] 4 SCC
320, this principle has been enunciated by this Court in which it has been
clearly laid down that inconsistent or alternative pleas can be made in the F
written statement. Accordingly, the High Court and the Trial Court had gone
wrong in holding that defendants/appellants are not allowed to take inconsistent
pleas in their defence.

Before we part with this order, we may also notice that proviso to
Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not G
be allowed when the trial of the Suit has already commenced. For this reason,
we have examined the records and find that, in fact, the trial has not yet
commenced. It appears from the records that the parties have yet to file their
documentary evidence in the Suit. From the record, it also appears that the
Suit was not on the verge of conclusion as found by the High Court and the H
268 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A Trial Court. That apart, commencement of trial as used in proviso to Order
6 Rule 17 in the Code of Civil Procedure must be understood in the limited
sense as meaning the final hearing of the suit, examination of witnesses,
filing of documents and addressing of arguments. As noted herein after,
parties are yet to file their documents, we do not find any reason to reject the
B application for amendment of the written statement in view of proviso to
Order 6 Rule 17 of the CPC which confers wide power and unfettered
discretion to the Court to allow an amendment of the written statement at any
stage of the proceedings.

For the reasons aforesaid, we are of the view that the High Court as
C well as the trial court erred in rejecting the application for amendment of
written statement. Accordingly, the orders of the High Court and the trial
court are set aside, the application for amendment of written statement is
allowed. The defendants/appellants are directed to file an amended written
statement within a period of one month from the date of production of this
order before the trial court positively. Considering the facts and circumstances
D of this case, we direct the trial court to dispose of the suit within a period of
one year from the date of communication of this order to it. The appeals are
allowed. There will be no order as to costs.

v.s.s. Appeal allowed.