Supreme Court of India
SUSHIL KUMAR JAINversusMANOJ KUMAR & ANR.
- Citation
- 2009 INSC 700
- Decided
- 5 May 2009
- Disposal
- Appeal(s) allowed
- Bench
- TARUN CHATTERJEE
Holding
An amendment of a written statement may be allowed even after the trial is deemed to have commenced, provided the trial has not actually begun, and admissions in a written statement can be explained or withdrawn by such amendment.
Summary
In an eviction proceeding under Section 13 of the East Punjab Rent Restrictions Act, the tenant (appellant) filed a written statement and later sought to amend it under Order 6 Rule 17 of the CPC to correct inadvertent misstatements. The Rent Controller rejected the amendment, holding that it would allow the tenant to withdraw admissions, and the High Court affirmed this decision. The Supreme Court held that amendment of a written statement is governed by a more liberal principle than amendment of a plaint, and that an admission made in a written statement can be explained or withdrawn by amendment. The Court further observed that the proviso to Order 6 Rule 17 applies only after the trial has actually commenced, which had not happened as no issues were framed, no documents filed, and no evidence taken. Consequently, the orders of the Rent Controller and the High Court were set aside, the amendment was allowed, and the Rent Controller was directed to permit the amendment and dispose of the eviction proceeding within six months. The appeal was allowed.
Issues considered
- Whether the Rent Controller and the High Court were correct in rejecting the tenant's application for amendment of the written statement under Order 6 Rule 17, CPC.
- Whether the proviso to Order 6 Rule 17 bars amendment of a written statement after the commencement of trial.
- Whether an admission made in a written statement can be withdrawn or explained by amendment.
Legislation cited
- Code of Civil Procedure, 1908s. Order 6 Rule 17
Subjects
amendment of written statementOrder 6 Rule 17evictionrent controladmission withdrawaltrial commencementcivil procedureEast Punjab Rent Restrictions Act
Judgment
[2009] 9 S.C.R. 944
i,..
A SUSHIL KUMAR JAIN
v. "'
MANOJ KUMAR & ANR.
(Civil Appeal No. 3236 of 2009)
MAY 05, 2009 i-
B ~
[TARUN CHATTERJEE AND H.L. DATTU, JJ.] I
::
Code of Civil Procedure, 1908:
'
c Or.6, r.17 -Application of tenant for amendment of written ~
statement - Rejected by Rent Controller on the ground that
by such amendment tenant would be permitted to withdraw his .--
admissions made in W. S. - Held : Admission made by a iI
defendant in his W S. can be explained by filing an application
for amendment - East Punjab Rent Restrictions Act - s. 13. i
D
t
Or. 6, r. 17, proviso - Amendment of written statement -
Commencement of trial - Held : Since neither issues have
been framed nor documents have been filed nor evidence
has yet been adduced, proviso to r.17 would not.be applicable
E as trial has not commenced - Rent Control and Eviction.
In the eviction proceeding initiated against the
appellant tenant, he filed an application for amendment ~
of the written statement. The Rent Controller rejected the
-~
F application, inter alia, on the ground that in the event such
amendment being allowed, the tenant would be permitted
to withdraw his admissions made in the origi~al written
statement which was ~ot permissible in law. The revision
petition of the tenant having been rejected by the High r
Court, he filed the appeal. ,__
G
Allowing the appeal, the Court "
HELD: 1.1. The High Court as well as the Rent
·Controller acted illegally and with material irregularity in
H 944
1
I
SUSHIL KUMAR JAIN v. MANOJ KUMAR & ANR. 945
the exercise of their jurisdiction in not allowing the A
· application for amendment of the written statement of the
appellant. [Para 13] [951-G-H; 952-A]
1.2. A careful reading of the application for
amendment would show that the appellant seeks only to 9
elaborate and clarify the earlier inadvertence and
confusion made in his written statement. Even assuming
that there was admission made by the appellant in his
original written statement, then also, such admission can
be explained by amendment of the written statement C
even by taking inconsistent pleas substituting or altering
the defence. [Para 9] [950-F.:.G]
1.3. An amendment of a plaint and that of a written
·statement are not necessarily governed by. exactly the
same principle, and courts would be more liberal in D
allowing amendment of a written statement than that of
a plaint. Adding a new ground of defence or substituting
or altering a defence or taking inconsistent pleas in a
written statement does not raise the same problem as
adding, altering, substituting a new cause of action. [Para E
10) [950-G-H; 951-A]
Baldev Singh & Ors. vs. Manohar Singh & Anr. AIR 2006
SC 2832 and Usha Balashaheb Swami & Ors. vs. Kiran
Appaso Swami & Ors. AIR 2007 SC 1663 and Panchadeo
·Narain Srivastava vs. K. Jyoti Sahay AIR 1983 SC 462, F
relied on.
1.4. In view of the decision in Baldev Singh and in
view of the admitted fact that in the instant case, not even
the issues have yet been framed, documents have not G
yet been filed, evidence has not yet been adduced, the
proviso to r. 17 of Or 6 of the Code of Civil ProcP.dure,
1908 has· no manner of application, as the trial has not
yet commenced. [Para 15 and 16] [953-A-B]
H
r
~-
946 SUPREME COURT REPORTS [2009] 9 S.C.R.
·A 1.5. The order of the High Court and that of the Rent
Controller are set aside. The application for amendment
of the written statement is allowed. The Rent Controller
is directed to permit amendment of the written statement
and thereafter proceed with the hearing of the eviction
B proceedings. [Para 17] [953-B-D] ·
Case Law Reference:
AIR 2006 SC 2832 relied on Para 10
AIR 2007 SC 1663 relied on Para 11
c
AIR 1983 SC 462 relied on Para 12
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3236 of 2009.
D From the Judgment & Order dated 15.07.2008 of the High
Court of Punjab & Haryana at Chandigarh in Civil Revision No.
3700 of 2008.
Shaian Sethi and Aribam Guneshwar Sharma for the
E Appellants.
Daya Krishan Sharma and Monika Sharma for the
Respondents.
The Judgment of the Court was delivered by
F
TARUN CHATTERJEE, J. 1. Leave granted.
2. This appeal is directed against the order dated 15th of
July, 2008 passed by a learned Judge of the High Court of
Punjab and Haryana at Chandigarh in Civil Revision No. 3700
G of 2008, by which the Civil Revision case filed by the tenanU
appellant was rejected, affirming the order passed by the Rent
Controller, Chandigarh, by which the Rent Controller had
rejected the application for amendment of the written statement
under Order 6 Rule 17 of the Code of Civil Procedure (in short
H
SUSHIL KUMAR JAIN v. MANOJ KUMAR & ANR. 947
[TARUN CHATTERJEE, J.]
"the CPC") filed by the appellant. A
3. The landlords/respondents have filed an ejectment
proceeding in respect of the Main Gate and Covered First Floor
of Shed No. 771, Industrial Area, Phase-II, Chandigarh
(hereinafter referred to as the "demised premises"). This
8
ejectment proceeding has been filed under section 13 of the
East Punjab Rent Restrictions Act (in short, the "Act"), in which
under paragraph 2 the appellant has been described as a
tenant in respect of the demised premises. In view of the
controversy raised before us, it would be appropriate to C
produce paragraph 2 of the said petition, which is, as
hereinunder:
"Paragraph 2: Respondent is a tenant in respect of
premises describable as Main Gate and Covered First
Floor of Shed No. 771, Industrial Area, Phase II, D
Chandigarh."
4. Be it mentioned herein that this is a paragraph, which
has sought to be amended that has resulted in controversy .
between the parties. The appellant has entered appearance E
and filed a written statement denying the material allegations
made in the said petition under Section 13 of the Act. So far
as the statements made under Paragraph 2 of the ejectment
proceeding is concerned, the appellant made the following
averments:
F
"Paragraph 2: That Paragraph 2 of the petition is also
admitted to be correct. It is however submitted that the
respondent is occupying other areas of 771 Industrial Area,
Phase II, Chandigarh as well under different tenancies." So
far as the other statements made in the ejectment G
proceeding are concerned, the appellants denied the
allegation made therein and sought for rejection of the
ejectment proceeding.
5. During the pendency of the ejectment proceeding under H
S48 SUPREME COURT REPORTS [2009) 9 S.C.R.
A Section 13 of the Act, more precisely, on 6th of June, 2008,
an application under Order .6 Rule 17 of the CPC was filed by
the appellant, praying for an amendment of the written
statement stating inter alia that there was inadvertently some
confusion and misstatement of facts which needed to be
s rectified and that the proposed amendment was necessary for
adjudication of the real matter in controversy. The amendment
sought for clearly stated that there are three different portions
under one tenancy and not different portions under different
tenancies, which can be evident from the original written
c statement filed by the appellant. By filing the application for
amendment of the written statement, the appellant sought
deletion of the words "under different tenancies", what was
sought to be removed was the contradiction and confusion
having been raised in the written statement which was never
intended to be an admission. The appellant further alleged that
0
by amendment he sought to explain and adopt a different and .
\_
inconsistent plea in the written statement. However, it would be
appropriate for us to reproduce the amendment prayed for
. which is in the following manner :
E "4. That in para 2 of the reply the word "under different
tenancies" be deleted.
5. That para 3 of the reply be substituted with the following
paragraph :-
F That para 3 of the petition as stated is not correct .·
and is thus, denied. It is, however, admitted that the
respondent came in the premises initially in an area of 15
X 45' facing main road on a· monthly rent of Rs.5000/-.
Subsequently, in the year 2003 more portion was .added,
G i.e. main gate faving Taj Furniture and the First Floor and
the rent of all the three portion was agreed to be Rs. 7000/
-. Rs. 5000/- per month had been paid through payee's
account cheques and Rs. 2000/- per month had been paid
in cash for which no receipt has been issued by Manoj
H Kumar. The total rent up to December, 2007 has been
SUSHIL KUMAR JAIN v. MANOJ KUMAR & ANR. 949
[TARUN CHATIERJEE, J.]
paid in the above-said manner. It is wrong and denied that A
the monthly rent was payable in advance by 7th of each
month or that it was required to be increased by 5% each
year. The respondent continued to pay Rs. 7000/- per
month to Manoj Kumar who had been receiving the rent
each month till the month of December, 2007. It is 8
respectfully submitted that there has been very cordial
relations between Manoj Kumar and the Respondent and
there was lot of trust and confidence and because of the
Trust and confidence, the Respondent had been payment '
Rs. 2000/- per month in case without obtaining the receipt C
and has paid the entire rent up to December, 2007. The
Respondent is ready and willing to pay the rent @ Rs.
70001- per month from 01.01.2008 onwards. The petitioner
has exploited the good relationship and after receiving the
rent in case till December, 2007, he has filed the present
petition. D
6. That para 4 of the reply be allowed to be amended and
the word "November" occurring in second line be
substituted with the word "December". In the 4th line, the
word "December, 2007" be substituted with 1st "January, E
2008."
7. That likewise the word "November" 2007 be substituted
with word "December'' 2007 occurring in sub-para (i) of
para 5 and the word "December, 2007" be substituted with
F
"January, 2008".
8. That the proposed amendment is necessary for the
adjudication of the matter in controversy. The amended
reply is filed herewith."
G
6. The learned Rent Controller, Chandigarh, rejected the
application for amendment of the written statement inter alia
holding that if such amendment was allowed,. the appellant
would be permitted to withdraw his admissions made in the
original written statement, which is not permissible in law. The H
950 SUPREME COURT REPORTS (2009] 9 S.C.R.
A High Court affirmed the ord.er of the Rent Controller similarly
holding that the appellant shall not be permitted to withdraw the
admission made in the original written statement and
accordingly, rejected the Civil Revision case.
7. Feeling aggrieved, the appellant has filed a Special
8 Leave Petition, which on grant of leave, was heard in presence
of the learned counsel for the parties.
8. We have heard the learned counsel for the parties and
examined the impugned order as well as the order of the
C learned Rent Controller. We have also examined the pleadings
in the ejectment proceeding under section 13 of the Act, the
original written statement and the application for amendment
of the written statement. In our view, the High Court had acted
illegally and with material irregularity in the exercise of its
o jurisdiction in rejecting the application for amendment of the
written statement on the ground as stated hereinabove. After
going through the pleadings in the amendment petition as well
as the original written statement, we fail to understand why such
amendment should not be allowed. In our view, having
E considered the averments. made in the application for
amendment of the written statement, it cannot be said that in
fact neither any admission was made by the appellant in his
original written statement nor the appellant had· sought to
withdraw such admission made by him in his written statement.
F 9. That apart, a careful reading of the application for
amendment of the written statement, we are of the view that the
appellant seeks to only elaborate and clarify the earlier
inadvertence and confusion made in his written statement. Even
assuming that there was admission made by the appellant in
G his original written statement, then also, such admission can
be explained by amendment of his written statement even by
taking inconsistent pleas or substituting or altering his defence.
10. At this stage, we may remind ourselves that law is now
H well settled that an amendment of a plaint and amendment of
SUSHIL KUMAR JAIN v. MANOJ KUMAR & ANR. 951
[TARUN CHATTERJEE, J.]
a written statement are not necessarily governed by exactly the A
same principle. Adding a new ground of defence or substituting
or altering a defence does not raise the same problem as
adding, altering, substituting a new cause of action (See
Baldev Singh & Ors. vs. Manohar Singh & Anr. AIR 2006 SC
2832). B
11. Similar view has also been expressed in Usha
;. Balashaheb Swami & Ors. Vs. Kiran Appaso Swami & Ors. ·
Al R 2007 SC 1663. It is equally well settled that in the case of
an amendment of a written statement, the Courts would be
more liberal in allowing than that of a plaint as the question of
c
prejudice would be far less in the former than in the latter and
addition of a new ground of defence or substituting or altering
a defence or taking inconsistent pleas in the written statement
can also be allowed.
D
12. Keeping these principles in mind, let us now take up
the que_stion raised before us by the learned counsel for the
parties. As stated herein earlier, the admission made by a
defendant in his written statement can be explained by filing the
application for amendment of the same. This principle has been E
-- settled by this Court in Panchdeo Narain Srivastava Vs. K.
_, Jyoti Sahay AIR 1983 SC 462, while considering this issue,
held that the admission made by a party may be withdrawn or
J may be explained. It was observed in paragraph 3 of the said
decision as follows:- F
"An admission made by a party may be withdrawn or may
be· explained away. ·Therefore, it :annot be said that by
amendment, an admission of fact cannot be
withdrawn .......... "
G
.) 13. In view of our discussions made hereinabove and
applying the principles laid down by this court in the aforesaid
decisions, we are therefore of the view that the High Court as
well as the learned Rent Controller had acted illegally and with
material irregularity in the exercise of its jurisdiction in not H
952 SUPREME COURT REPORTS [2009) 9 S.C.R.
A allowing the application for amendment of the written statement-
of the appellant.
14. Before parting with this judgment, a short submission
as advanced by the learned counsel for the respondents may
be dealt with. Referring to the proviso to Order 6 Rule 17 of
8
the CPC, the learned counsel for the respondents argued that
the proviso clearly bars that any application for amendment
either of plaint or of written statement can be allowed after trial
has commenced unless the Court comes to the conclusion that
C in spite of due diligence, the party could not have raised the
matter b~fore the commencement of the trial. Therefore, the
learned counsel for the respondents submitted that in view of
t~e proviso to Order 6 Rule 17 of the CPC, the High Court as
well as the Rent Controller had acted within their jurisdiction in
rejecting the application for amendment of the written statement
D on the ground that the trial has already commenced and,
therefore, no interference can be made in respect of the same.
15. We are unable to agree with this submission of the
_learned counsel for the respondents. In this case, in our view,
E the trial has not yet commenced. In para 17, of Baldev Singh
(Supra), this Court observed :- '
~·
"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
F conclusion as found by the High Court and the 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
G documents and addressing of arguments. As noted
hereinafter, parties are yef to file their documents, we do
not find any reason to reject the 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
H discretion to the Court to allow an amendment of the written
SUSHIL KUMAR JAIN v. MANOJ KUMAR & ANR. 953
[TARUN CHATTERJEE, J.]
statement at any stage of the proceedings." A
... 16. In view of the aforesaid decision and in view of the
admitted fact that not even the issues have yet been framed,
documents have not yet been filed, evidence has not yet been
adduced, we are of the view that the proviso to Order 6 Rule 8
17 of the CPC has no manner of application as the trial has
not yet commenced.
17. Accordingly, the impugned order of the High Court as
well as that of the Rent Controller, Chandigarh, is set aside. The
application for amendment of the written statement is thus C
allowed. The Rent Controller, Chandigarh, is directed to permit
amendment of the written statement and, thereafter, proceed
with the hearing of the eviction proceeding. The Rent Controller,
Chandigarh is directed to dispose of the ejectment proceeding
within six months from the date of supply of a copy of this ordsr D
to it.
18. Accordingly, the appeal is allowed to the extent
indicated above. There will be no order as to costs.
R.P. Appeal allowed. E
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