Ram Niwas Singhal v. A.D.J. (FT), Rajsamand

Order

: 29th January 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Mohd. Aslam for Mr. Manish Shishodia, for the petitioner. Mr. Rakesh Arora ] Mr. Mahaveer Bishnoi ], for the respondent No.2. ..... BY THE COURT: By way of this writ petition, the petitioner-defendant has questioned the order dated 04.08.2007 as passed by the learned Additional District Judge (Fast Track), Rajsamand in Civil Suit No.98/2006 rejecting his application to amend the written statement. Briefly put, the relevant aspects of the matter are that the

respondent No.2-plaintiff has filed the suit against the petitioner for money recovery on the basis of a document stated to be an agreement dated 25.03.2003 with the averments in the plaint (Annex.1) that the defendant took a loan of Rs.1,00,000/- from the plaintiff and executed the said document in his favour; and that interest was agreed to be paid @ Rs.1.50 per cent per month. The plaintiff has alleged that the defendant-petitioner has not made payment despite demands and has, therefore, sought a decree in the sum of Rs.1,54,000/- with future interest at the rate agreed. The defendant-petitioner in his written statement (Annex.2) has 2 denied any such transaction between the parties; has denied execution of any such agreement; and has specifically denied taking of any loan from the plaintiff. The petitioner has also taken the plea that the plaintiff was a money-lender and the suit was not maintainable for want of money lending licence with him; and that there were several other directors in the defendant-firm and in their absence, the suit was not maintainable. It has also been stated that some other disputes are already pending between the son of the plaintiff and the defendant and the present suit has been filed because of such enmity. After framing of issues, the petitioner moved an application on 09.07.2007 (Annex.3) seeking to amend the written statement and sought insertion of several pleas as stated in sub-paragraph 1 to 7 of paragraph 1 of the application. The pleas as sought to be inserted related to the objections that the agreement was not on proper stamp and the defendant has not executed any receipt in favour of the plaintiff; that the agreement was type-written in Hindi language whereas the names of the witnesses on the agreement were scribed in handwriting and that demonstrates the agreement to be a false one; that the agreement was a forged one; that the agreement was not on requisite stamp papers and Stone Camp India Private Limited was a Private Limited Company and if it be assumed that the plaintiff had extended any loan then there was no Board resolution to that effect; that the plaintiff has not 3 produced his balance sheet and income-tax returns to show advancing of any loan to the defendant; that the agreement does not carry signatures of the plaintiff and the defendant; and that the son of the plaintiff is brother-in-law of the defendant and they had business transactions and defendant's signed papers remained with the son of the plaintiff and the same are being sought to be misused. The learned trial court by its impugned order dated

04.08.2007 (Annex.5) has proceeded to reject the said application seeking amendment with the observations that the plea regarding the agreement being unstamped has already been taken in the written statement and other pleadings as stated in sub-paragraphs 2 to 7 relate to the matters of evidence and the defendant was not prejudiced by not allowing such pleas in the written statement. The learned trial court has also observed with reference to proviso to Order 6 Rule 17 CPC that after commencement of trial, the amendment is not required to be allowed unless the party seeking amendment establishes that the proposed pleadings could not have been taken earlier despite due diligence. The trial court has further observed that none of the pleas as sought to be taken by way of amendment could be said to be not in the knowledge of the defendant earlier. Assailing the order aforesaid, learned counsel appearing for the petitioner has read over the contents of the written statement 4 and submitted that the observations as made by the learned trial court, of the petitioner having already taken the plea regarding the agreement not carrying requisite stamp, is not correct and rejection of the application by the learned trial court has been on a complete misreading of the material available on record. Learned counsel submitted that the application was moved immediately after framing of the issues and no evidence having been recorded, the amendment could have been allowed without causing any prejudice to the plaintiff. Learned counsel for the respondent- plaintiff has strenuously opposed with the submissions that the defendant has totally failed to show that such pleadings were not taken earlier despite exercise of due diligence and essentially all the proposed pleadings are either irrelevant or relate to the matters of evidence. Learned counsel also submitted that objection relating to the agreement as sought to be taken by way of amendment stand contrary to the pleadings earlier taken by the petitioner wherein execution of such agreement has been denied altogether. Having given a thoughtful consideration to the rival submissions and having perused the material placed on record, this Court is clearly of opinion that so far sub-paragraphs 2 to 7 of paragraph 1 of the application are concerned, such pleas have rightly been refused by the trial court being either irrelevant or having already been taken in the written statement or relating only 5 to the matters of evidence. However, the plea as stated in sub- paragraph 1 of the paragraph 1 of the application cannot be said to be totally irrelevant for determination of the real questions in controversy between the parties and the learned trial court has acted illegally in observing that such plea already exists in the written statement. Thus, to this extent, the impugned order dated

04.08.2007 deserves to be modified and the application deserves to be partly allowed. The plea as stated in sub-paragraph 1 of the paragraph 1 of the application reads as under:- “(1) य(cid:2)(cid:3)(cid:2)क(cid:5)(cid:2)इ(cid:5)र(cid:8)रन(cid:8)म(cid:8)(cid:2)प(cid:12)पर(cid:2)स(cid:15)(cid:8)मप(cid:2)पर(cid:2)न(cid:3)(cid:17)(cid:18)(cid:2)(cid:3)(cid:19), न (cid:3)(cid:17)(cid:2) पत(cid:21)व(cid:8)द(cid:17)(cid:2) (cid:5)(cid:24) (cid:2) द(cid:8)र(cid:8)(cid:2) ल(cid:24)नद(cid:24)न(cid:2) (cid:5)(cid:27)(cid:2) (cid:5)(cid:12)ई(cid:2) रस(cid:30)द व(cid:8)द(cid:17)(cid:2)(cid:5)(cid:24) (cid:2)पक(cid:2)म (cid:2)द(cid:17)(cid:2)गय(cid:30)(cid:2)(cid:3)(cid:19)(cid:2)।" It is true that the defendant-petitioner has altogether denied having executed any such agreement and has asserted the same to be a forged one and has taken other pleas but the plea aforesaid is not found taken in the written statement, neither directly nor indirectly; and the observations as made by the learned trial court, of such plea already existing in the written statement, clearly turn out to be of total misreading of the material available on record. Then, merely because the defendant has taken the plea in denial of the agreement, that does not by itself put a bar on the defendant to take other plea on the validity, admissibility and probative value of the alleged agreement. 6 So far the provisions of Order 6 Rule 17 CPC are concerned, it is true that after commencement of the trial, the trial court may not allow amendment unless it comes to the conclusion that even after due diligence, the party could not have raised the matter before commencement of the trial. However, in the present case, the issues have of course been framed but, admittedly, the plaintiff's evidence has not begun. Moreover, the plea as sought to be taken by the petitioner-defendant pertains essentially to the operation of the provisions of law and so far the petitioner is concerned, it cannot be concluded with all certainty that such plea was in his knowledge at the time of filing of the written statement. In an overall comprehension of the matter, this Court is clearly of opinion that there was no justification for disallowing such amendment that could have been allowed without causing any prejudice to the plaintiff; and delay could have been compensated by awarding adequate costs to the plaintiff. In the interest of justice, the aforesaid amendment as proposed in sub- paragraph 1 of paragraph 1 of the application deserves to be allowed and the plaintiff deserves to be allowed costs quantified at Rs. 1,500/-. In order to avoid further delay in the matter, it appears appropriate that herein such amendment be allowed on such costs. 7 This writ petition is, therefore, partly allowed to the extent indicated above. The impugned order dated 04.08.2007 is modified and while rejection of the application in relation to the averments as stated in sub-paragraphs 2 to 7 is maintained, the rejection of the pleadings as stated in sub-paragraph 1 of the paragraph 1 of the application is set aside and the application is allowed only to the extent that the plea as stated in the said sub- paragraph 1 of paragraph 1 of the application is permitted to be incorporated by way of amendment to the written statement. It shall be required of the petitioner to file amended pleadings and so also to make payment of costs of Rs. 1,500/- to the plaintiff within 14 days from today. It is made clear that on the failure on the part of the petitioner to make payment of the costs and to file the amended pleadings within 14 days from today, the petitioner shall not be permitted to take the amended pleadings and trial shall proceed further. There shall be no further order as to costs regarding this petition. Mohan/ (DINESH MAHESHWARI), J.