Judgment · High Court · 2007
Case at a glance
Provisions considered
- Constitution of India art. 227
- Code of Civil Procedure, 1908 O. 6 r. 17; O. 8 r. 9
Key paragraphs
- Para 44. This Court carefully considered by the counsel for both sides andperused the records placed. A prayer for amendment of the plaint and aprayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so…
- Para 55. Applying the above said ratio laid down by the Honourable SupremeCourt to the case on hand, this Court is of the view that the petitionerhas taken a plea that his signatures were obtained by the respondent inblank pronotes, papers and cheques and he want…
Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 22-11-2007CORAM :THE HONOURABLE MR. JUSTICE A.KULASEKARANC.R.P. (PD) No. 1700 of 2006andM.P. No. 1 of 2006-o-K. Balaraman... PetitionerVersusP. Renuka... RespondentPetition under Article 227 of The Constitution of India against the Order dated 21.07.2006 made in I.A. No. 193 of 2006 in O.S. No. 299 of2003 on the file of Principal Subordinate Judge, Cuddalore. For Petitioner :Mr. R. GururajFor Respondent :Ms. R. MeenalORDERThe defendant in O.S. No. 299 of 2003 on the file of PrincipalSubordinate Judge, Cuddalore is the revision petitioner. The said suitwas filed by the respondent herein for recovery of money based on twopromissory notes and one cheque. In the said suit, the petitioner hasfiled his written statement stating that he borrowed only Rs.9,000/- on10.10.2000 for which the respondent insisted to pay interest at the rateof 60% per annum and also obtained a blank cheque and a promissory note. Thereafter, the petitioner herein has filed an application in I.A. No. 193of 2006 under Order 8 Rule 9 CPC seeking permission of the Court to fileadditional written statement to the effect that he executed two mortgagedeeds on 19.03.1998 and 28.12.1999 and borrowed a sum of Rs.25,000/- andRs.20,000/- respectively and on the date of execution of the mortgagedeeds, the respondent has obtained the signature of the petitioner inblank papers and also in two blank cheques. The trial court was of theview that the said pleas taken by the petitioner herein are inconsistentdismissed the said application.
The learned counsel appearing for the petitioner submitted thatthe petitioner has borrowed Rs.9,000/- on 10.10.2000 and the respondentinsisted to pay 60% interest per annum and obtained his signatures inblank cheques and blank promisory notes. The blank promisory note wasmade use of by the plaintiff illegally as if a sum of Rs.1,00,000/- waspaid to the defendant and filed the suit. The blank cheque was filled upillegally for Rs.35,000/- based on which C.C. No. 16 of 2000 was filed. Similarly, on 20.10.2000, a sum of Rs.5,000/- was received by thepetitioner and at that time, she obtained the petitioner's signature inblank promissory notes, cheques etc., which were used to falsely prepare apromissory note for Rs.50,000/- to show that the petitioner received that https://hcservices.ecourts.gov.in/hcservices/ amount and a cheque was filled up for Rs.20,000/- as if the petitioner hasdrawn the same in favour of the respondent for acknowledging receipt ofRs.20,000/- from her. Prior to this transaction, the petitioner executedtwo mortgage deeds dated 19.03.1998 and 28.12.1999 for Rs.25,000/- andRs.20,000/- respectively, on that date also the respondent obtained hissignature in two blank papers and two blank cheques as security forrepayment of interest. The above said facts were omitted to be mentionedin the written statement already filed, hence, in order to bring properfacts, he intended to file additional written statement; that the courtbelow failed to take note of the above said facts and erroneously heldthat it is not open to the petitioner, as a defendant to take inconsistentplea and dismissed the application.
The learned counsel for the respondent submitted that thepetitioner has taken a totally different stand in the additional writtenstatement sought to be filed by him, which is contrary to the writtenstatement filed by him earlier, hence, the court below has rightlydismissed the application seeking leave to file additional writtenstatement and prayed for dismissal of the revision petition.
This Court carefully considered by the counsel for both sides andperused the records placed. A prayer for amendment of the plaint and aprayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so asto alter materially or substitute the cause of action or the nature ofclaim applies to amendments to plaint. It has no counterpart in theprinciples relating to amendment of the written statement. In a case ofamendment of a written statement the courts would be more liberal inallowing the application than that of a plaint as the question ofprejudice would be far less in the former than in the latter. Moreover, in the event of allowing the amendment the other party can be compensatedin money. Technicality of law should not be permitted to hamper thecourts in the administration of justice between the parties. Hence, addition of a new ground of defence or substituting or altering a defenceor taking inconsistent pleas in the written statement can be allowed aslong as the amended pleadings do not result in causing grave andirretrievable prejudice to the plaintiff or displacing him completely.
Nor by seeking amendment to the written statement would it be open to aparty to wriggle out of an admission as admission is a material piece ofevidence which would be in favour of a person who would be entitled totake advantage of that admission. However, the admission can be explainedand it would be permissible to add a rider and/or proviso thereto whilekeeping the admission intact. Followed (Usha Balashaheb Swami and othersvs. Kiran Appaso Swami and others) (2007) 5 Supreme Court Cases 602wherein the Honourable Supreme Court in Para Nos. 19, 20, 21 and 22, heldthus:-"19. It is equally well-settled principle that aprayer for amendment of the plaint and a prayer foramendment of the written statement stand on differentfootings. The general principle that amendment ofpleadings cannot be allowed so as to alter materiallyor substitute cause of action or the nature of claimapplies to amendments to plaint.
It has no counterpartin the principles relating to amendment of the writtenstatement. Therefore, addition of a new ground of https://hcservices.ecourts.gov.in/hcservices/ defence or substituting or altering a defence or takinginconsistent pleas in the written statement would notbe objectionable while adding, altering or substitutinga new cause of action in the plaint may beobjectionable. 20. Such being the settled law, we must hold that inthe case of amendment of a written statement, thecourts are more liberal in allowing an amendment thanthat of a plaint as the question of prejudice would befar less in the former than in the latter case (seeB.K. Narayana Pillai vs. Parameswaran Pillai and BaldevSingh vs. Manohar Singh) Even the decision relied onby the plaintiff in Modi Spg clearly recognises thatinconsistent pleas can be taken in the pleadings. Inthis context, we may also refer to the decision of this Court in Basavan Jaggu Dhobi vs.
Sukhnandan RamdasChaudhary. In that case, the defendant had initiallytaken up the stand that he was a joint tenant alongwith others. Subsequently, he submitted that he was alicensee for monetary consideration who was deemed tobe a tenant as per the provisions of Section 15-A ofthe Bombay Rents, Hotel and Lodging Houses RatesControl Act, 1947. This Court held that the defendantcould have validly taken such an inconsistent defence. While allowing the amendment of the written statement, this Court observed in Basavan Jaggu Dhobi case asfollows:- (SCC p.180, para 3)3.As regards the first contention, we are afraidthat the courts below have gone wrong in holdingthat it is not open to the defendant to amend hiswritten statement under Order 6 Rule 17 CPC bytaking a contrary stand than what was statedoriginally in the written statement. This isopposed to the settled law. It is open to adefendant to take even contrary stands orcontradictory stands, thereby the cause of actionis not in any manner affected.
That will applyonly to a case of the plaint being amended so as tointroduce a new cause of action. 21. As we have already noted herein earlier thanin allowing the amendment of the written statement aliberay approach is a general view when admittedly inthe event of allowing the amendment the other party canbe compensated in money. Technicality of law shouldnot be permitted to hamper the courts in theadministration of justice between the parties. In L.J.Leach & Co. Ltd v. Jardine Skinner & Co, this Courtobserved"that the courts are more generous in allowingamendment of the written statement as the questionof prejudice is less likely to operate in thatevent. https://hcservices.ecourts.gov.in/hcservices/ In that case this Court also held"that the defendant has right to take alternativeplea in defence which, however, is subject to anexception that by the proposed amendment theother side should not be subjected to seriousinjustice.
" 22. Keeping these principles in mind, namely, that in a case of amendment of a written statement the Courts would be more liberal in allowing than that of aplaint as the question of prejudice would be far lessin the former than in the latter and addition of a newground of defence or substituting or altering a defenceor taking inconsistent pleas in the written statementcan also be allowed, we may now proceed to considerwhether the High Court was justified in rejecting theapplication for amendment of the written statement. "
Applying the above said ratio laid down by the Honourable SupremeCourt to the case on hand, this Court is of the view that the petitionerhas taken a plea that his signatures were obtained by the respondent inblank pronotes, papers and cheques and he want to extend the same plea tosay that even at the time of execution of two mortgage deeds stated abovethe respondent has taken his signatures in blank papers etc., by filingadditional written statement, which do not result in causing grave andirretrievable prejudice to the respondent herein or displacing hercompletely and the respondent take advantage of inconsistency, ifpermissible under law. 5. In view of the above discussion, the Order dated 21.07.2006 madein I.A. No. 193 of 2006 is set aside. The revision petition is ordered asprayed for. No costs. The trial court is directed to give reasonableopportunity to the respondent herein to file her reply to the additionalwritten statement of the petitioner. Consequently, connectedmiscellaneous petition is closed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.rsh https://hcservices.ecourts.gov.in/hcservices/ ToThe Principal Subordinate JudgeSub CourtCuddalore+ 1 CC To Mr.P.Gunraj, Advocate SR NO.69740+ 1 CC To Mr. R.Subramanian, Advocate SR NO.69436CRP PD No. 1700 of 2006ssk[co]gp/4.12.
Questions this judgment answers
Which statutory provisions did this judgment involve?
Constitution of India — art. 227; Code of Civil Procedure, 1908 — O. 6 r. 17; O. 8 r. 9.
Which court decided this case, and when?
Madras High Court, on 22 Nov 2007. The bench was A KULASEKARAN, K BALARAMAN.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.