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
1. Rule. Heard finally with the consent of the learned Counsel for the parties. The petitioner is the original plaintiff who has filed suit for declaration with regard to his share in the suit property with a further prayer for a preliminary decree of partition, separate possession and perpetual injunction.
2. The respondent No. 1 herein filed her written statement opposing the claim as made in the suit. During pendency of the suit, the plaintiff moved an application under provisions of Order VI, Rule 17 of the Code of Civil Procedure, 1908 (for short, the Code) seeking leave to amend the plaint. By said amendment, the schedule of the suit property and some paragraphs after para 13 were sought to be amended. The trial Court by the order dated 1-4-2015 allowed the said application and also permitted the defendants to consequentially amending their pleadings. Pursuant to the aforesaid order, the defendant No. 1 moved an application below Exhibit-139 praying that the consequential amendment to the written statement be allowed. In this application besides the reply to the amended plaint, para 37A was also sought to be amended in the written statement. The trial Court by order dated 27-7-2015 partly allowed the said application. It permitted the defendant No. 1 to carry out the consequential amendment to paras 35B, 35C and 35D. The amendment in the other paras was not granted but liberty was granted with to move a separate application in that regard. An application for review filed by the defendant No. 1 came to be rejected.
3. Thereafter the defendant No. 1 moved another application below Exhibit-149 and sought to add para 37A to the written statement. The trial Court by order dated 17-10-2015 allowed the said application. In response thereto the plaintiff filed an application below Exhibit-151 seeking to reply to the averments made in para 37A of the written statement. The trial Court by the impugned order dated 26-10-2015 rejected the said application on the ground that as the plaintiff had amended the plaint and the defendant had also carried out the consequential amendment, there could not be any further amendment to the pleadings.
4. Shri Masood Shareef, the learned Counsel for the petitioner submitted that the trial Court was not justified in rejecting the application for amendment below Exhibit-151. According to him, the trial Court while permitting the defendant No. 1 to amend her written statement consequentially had specifically refused permission to add para 37A in the written statement on the ground that the pleadings in said paragraph were not of a consequential nature and had therefore granted liberty to move a separate application. Pursuant thereto, the application moved by the defendant No. 1 to add aforesaid paragraph was allowed by the trial Court by passing order below Exhibit-149. According to him, the plaintiff could not have been denied the permission to respond to these averments inasmuch as the amendment carried out vide para 37A was not consequential in nature but it was a fresh pleading. He therefore, submitted that the entire basis on which the amendment was disallowed was legally unsustainable. In support of his submissions the learned Counsel placed reliance on the decision of the Hon'ble Supreme Court in Gurdial Singh and others v. Raj Kumar Aneja and others, MANU/SC/0077/2002 : (2002) 2 SCC 445.
5. Dr. R.S. Sundaram, the learned Counsel for the respondent No. 1 supported the impugned order. According to him, the trial Court was justified in rejecting the application moved by the petitioner. He submitted that pursuant to the initial amendment carried out by the plaintiff, the defendant had amended he pleadings. What was sought to be added thereafter in para 37A were merely averments in support of the pleadings that were already on record and that there could not be any denial of the averments made in the written statement by amending the plaint. According to him, if such an application is allowed, the same would amount to permitting further consequential amendment to the amendment carried out by the defendant in response to the amended plaint. He referred to the provisions of Order VI, Rule 1, Order VII and Order VIII, Rule 2 of the Code in support of his submissions. He then submitted that if the plaintiff intended to rebut the case of the defendant, the same could be only by way of evidence and not by further amending the plaint. He relied upon the decision of the Hon'ble Supreme Court in Usha Balasaheb Swami and others v. Kiran Apparao Swami and others, MANU/SC/7318/2007 : 2007 (5) Mh.LJ. 593 and the judgment of learned Single Judge in Narayan v. Sumanbai, MANU/MH/0912/2011 : 2012 (1) Mh.LJ. 316.
6. I have heard the respective Counsel for the parties at length and I have given due consideration to their respective submissions. It is not in dispute that in response to the amendment carried out in the plaint, the defendant No. 1 was permitted to consequentially amend her pleadings. On such pleadings being sought to be amended the trial Court permitted only those amendments which according to it were consequential in nature. Specific liberty was granted to the defendant to apply for amendment in respect to para 37A as proposed as the averments made therein were not found to be in the nature of a consequential amendment. It is on the basis of this liberty that the subsequent application below Exhibit-149 came to be moved by the defendant No. 1. While considering this application, the trial Court while allowing the same observed that the said amendment was necessary for deciding the real controversy between the parties and that it was permissible for the defendant to take an additional defence. It is in response to this amendment that the plaintiff sought to amend her pleadings so as to bring on record her stand in that regard. The trial Court merely by observing that the said amendment would amount to consequential amendment of the plaint rejected the application.
7. 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 present case, the trial Court had specifically denied the permission to consequentially amend and incorporate in para 37A to the defendant No. 1. On the basis of the liberty granted by the trial Court, the subsequent application came to be moved which was thereafter allowed. It was in response to this amendment that the plaint was sought to be amended. Considering aforesaid observations of the Hon'ble Supreme Court, I find that the trial Court was not justified in rejecting the application below Exhibit-151. The observations made in the aforesaid decision would apply to amendment of pleadings of either of the parties and the same cannot be restricted to either the plaintiff or the defendant.
8. The legal position as laid down in Usha Swami (supra) does not admit of any doubt. In the present case, the amendment as sought was in response to amended para 37A and therefore, the ratio of aforesaid judgment cannot be made applicable in the present facts. Similarly, the decision in Narayan (supra) also does not support the submission made on behalf of the respondent No. 1.
9. The reference to various provisions of the Code by the learned Counsel for the respondent No. 1 does not in any manner bar an amendment of the present nature. The same is only in response to the amendment carried out by the defendant No. 1. The trial Court having failed to allow the same acted with material irregularity and therefore, a case for interference has been made out. In view of aforesaid, the following order is passed:
(a) The order dated 26-10-2015 passed below Exhibit-151 is set aside.
(b) The application below Exhibit-151 is allowed.
(c) In the facts of the case, the proceedings in Special Civil Suit No. 766 of 2012 are expedited and the trial Court shall decide the suit by the end of April, 2017.
(d) The writ petition is allowed in aforesaid terms. No costs.
"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
1. Rule. Heard finally with the consent of the learned Counsel for the parties. The petitioner is the original plaintiff who has filed suit for declaration with regard to his share in the suit property with a further prayer for a preliminary decree of partition, separate possession and perpetual injunction.
2. The respondent No. 1 herein filed her written statement opposing the claim as made in the suit. During pendency of the suit, the plaintiff moved an application under provisions of Order VI, Rule 17 of the Code of Civil Procedure, 1908 (for short, the Code) seeking leave to amend the plaint. By said amendment, the schedule of the suit property and some paragraphs after para 13 were sought to be amended. The trial Court by the order dated 1-4-2015 allowed the said application and also permitted the defendants to consequentially amending their pleadings. Pursuant to the aforesaid order, the defendant No. 1 moved an application below Exhibit-139 praying that the consequential amendment to the written statement be allowed. In this application besides the reply to the amended plaint, para 37A was also sought to be amended in the written statement. The trial Court by order dated 27-7-2015 partly allowed the said application. It permitted the defendant No. 1 to carry out the consequential amendment to paras 35B, 35C and 35D. The amendment in the other paras was not granted but liberty was granted with to move a separate application in that regard. An application for review filed by the defendant No. 1 came to be rejected.
3. Thereafter the defendant No. 1 moved another application below Exhibit-149 and sought to add para 37A to the written statement. The trial Court by order dated 17-10-2015 allowed the said application. In response thereto the plaintiff filed an application below Exhibit-151 seeking to reply to the averments made in para 37A of the written statement. The trial Court by the impugned order dated 26-10-2015 rejected the said application on the ground that as the plaintiff had amended the plaint and the defendant had also carried out the consequential amendment, there could not be any further amendment to the pleadings.
4. Shri Masood Shareef, the learned Counsel for the petitioner submitted that the trial Court was not justified in rejecting the application for amendment below Exhibit-151. According to him, the trial Court while permitting the defendant No. 1 to amend her written statement consequentially had specifically refused permission to add para 37A in the written statement on the ground that the pleadings in said paragraph were not of a consequential nature and had therefore granted liberty to move a separate application. Pursuant thereto, the application moved by the defendant No. 1 to add aforesaid paragraph was allowed by the trial Court by passing order below Exhibit-149. According to him, the plaintiff could not have been denied the permission to respond to these averments inasmuch as the amendment carried out vide para 37A was not consequential in nature but it was a fresh pleading. He therefore, submitted that the entire basis on which the amendment was disallowed was legally unsustainable. In support of his submissions the learned Counsel placed reliance on the decision of the Hon'ble Supreme Court in Gurdial Singh and others v. Raj Kumar Aneja and others, MANU/SC/0077/2002 : (2002) 2 SCC 445.
5. Dr. R.S. Sundaram, the learned Counsel for the respondent No. 1 supported the impugned order. According to him, the trial Court was justified in rejecting the application moved by the petitioner. He submitted that pursuant to the initial amendment carried out by the plaintiff, the defendant had amended he pleadings. What was sought to be added thereafter in para 37A were merely averments in support of the pleadings that were already on record and that there could not be any denial of the averments made in the written statement by amending the plaint. According to him, if such an application is allowed, the same would amount to permitting further consequential amendment to the amendment carried out by the defendant in response to the amended plaint. He referred to the provisions of Order VI, Rule 1, Order VII and Order VIII, Rule 2 of the Code in support of his submissions. He then submitted that if the plaintiff intended to rebut the case of the defendant, the same could be only by way of evidence and not by further amending the plaint. He relied upon the decision of the Hon'ble Supreme Court in Usha Balasaheb Swami and others v. Kiran Apparao Swami and others, MANU/SC/7318/2007 : 2007 (5) Mh.LJ. 593 and the judgment of learned Single Judge in Narayan v. Sumanbai, MANU/MH/0912/2011 : 2012 (1) Mh.LJ. 316.
6. I have heard the respective Counsel for the parties at length and I have given due consideration to their respective submissions. It is not in dispute that in response to the amendment carried out in the plaint, the defendant No. 1 was permitted to consequentially amend her pleadings. On such pleadings being sought to be amended the trial Court permitted only those amendments which according to it were consequential in nature. Specific liberty was granted to the defendant to apply for amendment in respect to para 37A as proposed as the averments made therein were not found to be in the nature of a consequential amendment. It is on the basis of this liberty that the subsequent application below Exhibit-149 came to be moved by the defendant No. 1. While considering this application, the trial Court while allowing the same observed that the said amendment was necessary for deciding the real controversy between the parties and that it was permissible for the defendant to take an additional defence. It is in response to this amendment that the plaintiff sought to amend her pleadings so as to bring on record her stand in that regard. The trial Court merely by observing that the said amendment would amount to consequential amendment of the plaint rejected the application.
7. 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 present case, the trial Court had specifically denied the permission to consequentially amend and incorporate in para 37A to the defendant No. 1. On the basis of the liberty granted by the trial Court, the subsequent application came to be moved which was thereafter allowed. It was in response to this amendment that the plaint was sought to be amended. Considering aforesaid observations of the Hon'ble Supreme Court, I find that the trial Court was not justified in rejecting the application below Exhibit-151. The observations made in the aforesaid decision would apply to amendment of pleadings of either of the parties and the same cannot be restricted to either the plaintiff or the defendant.
8. The legal position as laid down in Usha Swami (supra) does not admit of any doubt. In the present case, the amendment as sought was in response to amended para 37A and therefore, the ratio of aforesaid judgment cannot be made applicable in the present facts. Similarly, the decision in Narayan (supra) also does not support the submission made on behalf of the respondent No. 1.
9. The reference to various provisions of the Code by the learned Counsel for the respondent No. 1 does not in any manner bar an amendment of the present nature. The same is only in response to the amendment carried out by the defendant No. 1. The trial Court having failed to allow the same acted with material irregularity and therefore, a case for interference has been made out. In view of aforesaid, the following order is passed:
(a) The order dated 26-10-2015 passed below Exhibit-151 is set aside.
(b) The application below Exhibit-151 is allowed.
(c) In the facts of the case, the proceedings in Special Civil Suit No. 766 of 2012 are expedited and the trial Court shall decide the suit by the end of April, 2017.
(d) The writ petition is allowed in aforesaid terms. No costs.
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