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Parbati Dei Vs. Alupati Dukhishyam Patra and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 227 of 1964
Judge
Reported inAIR1966Ori6
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rules 7 and 17 - Order 8, Rule 9
AppellantParbati Dei
RespondentAlupati Dukhishyam Patra and ors.
Appellant AdvocateH.G. Panda, Adv.
Respondent AdvocateH. Sen, Adv.
DispositionRevision allowed
Cases ReferredIn Namburi Subbayya v. Chandrayya
Excerpt:
.....(db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - and (4) in the fresh written statement, she partly advances the plaintiff's case in admitting the original title as belonging to her father who is the vendor of the plaintiff, though she asserts that prior to the alleged transaction of sale in favour of the plaintiff on 10-3-1961, the father bad no subsisting title. it is a well established principle that the object of courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. no right has also vested in the plaintiff by lapse of time which could be defeated by allowing the new defence. the test laid down by the supreme court and lord..........site was purchased and the house was constructed with the funds of the third defendant though the title deed stood in the name of the second defendant the lease set up by the plaintiff was challenged as untrue. the petitioner and her mother claimed to be in possession of the suit house. thus the petitioner claims no title in herself in the original written statement. her case is that after the joint written statement was filed she learnt from her neighbours that the suit house had been conveyed to her by her father. she made necessary enquiries and applied for a copy of the registered document. the recitals read out to her revealed that the suit house was gifted to the petitioner by her father by a registered deed on 2-6-1955. on further search of her belongings she also traced out the.....
Judgment:
ORDER

G.K. Misra, J.

1. Plaintiff (opposite party No. 1) filed a title suit No. 75 of 1963 in the Court of the Munsif. Aska for recovery of arrears of 'rent and possession of the suit house from defendant No 1 (opposite party No. 2) on the allegation that the house was leased out to him on 10-3-1961. Plaintiff's title to the suit house is based on a registered deed of sale dated 10-3-61 by the defendant No. 2 (opposite party No. 3) in his favour Defendant No. 2 is the father of the fourth defendant (petitioner) and husband of the third defendant The first defendant denied relationship of landlord and tenant and pleaded that nominally he executed a rent deed on the pressing request of the plaintiff and that he was never inducted as a tenant. The petitioner and her mother engaged one Advocate and filed a joint written statement drafted on the instructions of the mother. The petitioner is a young lady twenty years old and knew nothing about the case. In the joint written statement filed on 4th of May 1964 it was pleaded that the suit house belonged to the third defendant; that the site was purchased and the house was constructed with the funds of the third defendant though the title deed stood in the name of the second defendant The lease set up by the plaintiff was challenged as untrue. The petitioner and her mother claimed to be in possession of the suit house. Thus the petitioner claims no title in herself in the original written statement. Her case is that after the joint written statement was filed she learnt from her neighbours that the suit house had been conveyed to her by her father. She made necessary enquiries and applied for a copy of the registered document. The recitals read out to her revealed that the suit house was gifted to the petitioner by her father by a registered deed on 2-6-1955. On further search of her belongings she also traced out the original deed of gift. On 14-9-64, the petitioner filed both the original and the certified copy of the deed of gift, engaged another advocate and asked for permission of the Court to file a separate written statement setting up her title to the suit house on the strength of the deed of gift executed by her father A fresh written statement was filed on her behalf and an amendment of the written statement was not sought for as initially a joint written statement had been filed and her case in the fresh written statement was opposed to the case of her mother in the original written statement. In substance the prayer was for amendment of her own written statement. The learned Munsif did not grant permission and rejected the written statement by his order dated 19-9-1964 against which the civil revision has been filed

2. Trial of the suit has not yet commenced. It is not disputed that the defence in the fresh written statement is contrary to the earlier one in one material aspect. There is no difference in the averments made in the two written statements that plaintiff has no title and is not entitled to recovery of possession or arrears of rent. The change in the defence lies in the fact that initially plaintiff's stand was that the title to the property vested in her mother and not her father By the subsequent written statement, the petitioner accepts the title of the father and claims her independent title even against the mother on the basis of the registered deed of gift. Another important feature to be noticed is that the conduct of the petitioner does not appear to be mala fide. Her subsequent claim is based on a registered deed of gift of the year 1955 which could not be manufactured subsequent to the filing of the original written statement. The trial Court rightly does not discard the petition' version that on enquin she same to kno of the registered document as being untrue. Thus the following features stand in favour of the petitioner in asking for permission of the Court to file a fresh written statement.

(1) The subsequent claim is based on the regd. deed of gift of the year 1955 which could not be manufactured in between the filing of the two written statments, i.e.. 4-5-1964 and 14-9-1964:

(2) Her story as to how she could not advance the subsequent defence in the original written statement due to ignorance of the basis of her claim is believable and has been discarded:

(3) She asked the permission of the Court to file the fresh written statement before commencement of the trial and thus no injury can be caused to the plaintiff by this new defence: and

(4) In the fresh written statement, she partly advances the plaintiff's case in admitting the original title as belonging to her father who is the vendor of the plaintiff, though she asserts that prior to the alleged transaction of sale in favour of the plaintiff on 10-3-1961, the father bad no subsisting title.

On these features, the question whether the fresh written statement should be accepted or not must he decided

3. Relevant provisions of C. P. C. may be examined. 'Pleading' shall mean plaint or written statement, (Order VI. Rule 1). No pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same (Order VI, Rule 7). No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off shall he presented except by the leave of the Court and upon such terms as the Court thinks lit. but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same. (Ordinance VIII, Rule 9). It is only at the stage of such subsequent pleading enacted in Order 8, Rule 9 that the provisions enacted in Order VI. Rule 7 apply for the first time against what is called 'a departure in the pleading'. A departure takes place when in any pleading, the party deserts the ground that he took up in his previous pleading and resorts to another on different grounds. This is exactly what has happened in this case and the question is whether Order VI, Rule 7 would stand in the way of the petitioner in not accepting the fresh written statement.

It would appear from the language of Order VI, Rule 7 that a new ground of claim or allegation of fact inconsistent with the previous pleading of the party cannot be accepted except by way of amendment. Order VI, Rule 7 is thus subject to Order VI, Rule 17 under which amendments are made. It lays down that the Court may at any stage of the proceeding 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 determining the real questions in controversy between the parties The Court must therefore, keep provisions of Order VI, Rule 17 in mind while accepting fresh pleading raising new ground of claim or containing allegations of tact inconsistent with the previous pleading of the party. It is thus necessary to examine the true scope of this rule. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, (S) AIR 1957 SC 363 their Lordships observed that all amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. The dictum of Lord Justice Bowen in Cropper v Smith, (1884) 26 Ch. 0 700 at pp. 710, 711 on this aspect of the matter cannot be bettered. The same may be quoted:

'It is a well established principle that the object of Courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. ...... .1 know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace....... . . ..It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.' ..

This dictum embodies the quientessence of the principle governing amendment of pleading.

4. Applying the aforesaid test, it is clear that the real case of the petitioner is that she has title in the disputed house on the strength of the registered deed of gift of the year 1955 and that the father had no further title to be conveyed to the plaintiff in 1961. The real controversy between the plaintiff and the petitioner centres round the question whether the father had subsisting title in 1961. The revelation of such a case to the petitioner was subsequent to the filing of the original written statement. Unless the amendment is allowed, the real matter in controversy between the parties cannot be determined. Such a conclusion by itself is not however sufficient to allow the amendment if injustice would be caused to the plaintiff. In this case, trial has not commenced and the evidence has not been 'gone into. 11 cannot therefore be said that any injustice would be meted out to the plaintiff if the fresh defence is permitted to be pleaded. No right has also vested in the plaintiff by lapse of time which could be defeated by allowing the new defence. The test laid down by the Supreme Court and Lord Justice Bowen are fully satisfied in this case and the fresh written statement must he accepted.

Union of India v. Shalimar Tar Products (1935) Ltd.. AIR 1953 Pat 131 covered a case in which plaintiff's suit was for damages. Originally the defendants filed a written statement in which they merely denied negligence on their part hut did not deny the title of the plaintiff to the laboratory which was damaged. Subsequently, the defendants asked for amendment of the written statement stating that they learnt on enquiry that the land on which the laboratory was constructed did not belong to the plaintiff-company and it belonged to the defendants. Thus initially plaintiff's title was not disputed and by subsequent written statement not only plaintiff's title was disputed but the defendants claimed a title in themselves. Their Lordships allowed this amendment observing that merely because the amendment sought is alleged to be inconsistent with the previous case of the defendant is by itself not a good reason for rejecting it. Leave to amend ought to be granted unless the party applying is acting mala fide or by his blunder has done some injury to his opponent which cannot be compensated by award of costs. Whether the original omission arose from negligence, carelessness or accidental error, the defect may be allowed to be remedied if no injustice is done to the other side. Amolakchand Mohanlal v. Firm of Sadliuram Tularam, AIR 1954 Nag 200 related to a case for redemption of mortgage and the defendants in their written statement admitted plaintiff's right for redemption. Later on when notices for inspection of documents were exchanged by the parlies, the defendants filed application for amendment of the written statement by which they claimed ownership and exclusive title to the property in suit bv denying the plaintiff's right of redemption. The amendment was allowed. These two decisions support my conclusion

It is unnecessary to examine a plethora of authorities in support of my view.

5. It only remains to consider some of the decisions cited by Mr. Sen in opposing the amendment. Narayanappa v. Suryanarayana, AIR 1950 Mad 46 supports his contention inasmuch as it rules that there is no provision in C. P. C. to enable the Court to permit the substitution of one written statement for another in toto. With great respect to the learned Single Judge, I am constrained to say that the view expressed therein is contrary to the accepted principles of law which I have already discussed, 1 am unable to accept it laying down good law. In this case the mother and the daughter originally filed one written statement. The fresh written statement is found to be a completely different one on separate pieces of paper though in essence it amounts to amendment of her own written statement under Order 6. Rule 17 C. P. C. In Chunnilal v. Deoram, AIR 1948 Nag 119 in the original written statement, the transferors were described as licensees. In the amended written statement, they were set up as owners. This complete change of front was disallowed as the amendment for the first time was sought in appeal. Thus a new question of controversy was raised for the first time in appeal and if it would have been allowed it would have caused injustice to the party opposing the amendment The case was rightly decided and comes within the principles laid down by me and is distinguishable and has no application to the facts of this case. In Namburi Subbayya v. Chandrayya, AIR 1941 Mad 811, a new case was attempted to be set up at the stage of argument at the trial and was disallowed. All these cases are therefore clearly distinguishable, I find no substance in Mr. Sen's contention.

6. The only other question for consideration is whether in allowing the amendment costs should be awarded to the plaintiff. Ordinarily, costs should be allowed. Lord Justice Bowen observed that there is one panacea which heals every sore in litigation and that is costs. For special reasons in this case, I am disinclined to grant cost. Petitioner is hardly 20 years old. The fact that the registered deed of gift stands in her name is not disputed and it was not unusual that she could know about it in time. The subsequent written statement is filed about 4'/2 months before the trial commenced. In such circumstances, plaintiff should not have vehemently opposed the amendment but should have insisted on payment of costs. Not only the amendment was opposed in the trial court, but the opposition: has been carried on vigorously to the High Court. For all these reasons. 1 consider this to be a fit case in which the amendment should be allowed without payment of costs. On the, same principle, I am not also inclined to grant costs against the plaintiff in the Civil Revision.

7. In the result, the order of the Munsif dated 19-9-1964 disallowing the amendment is quashed and the fresh written statement is accepted. The Civil Revision is allowed, but in the circumstances, parties are to bear their own costs.

Records be transmitted hack forthwith.


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