1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 19 TH DAY OF JUNE, 2012 BEFORE: THE HON’BLE MR. JUSTICE ARAVIND KUMAR W.P.NO.19333/2012(L-TER) & W.P.NO.19334/2012 (L-RES) W.P.NO.19333/2012: BETWEEN: M/s.Automobile Service Centre No.108, Victoria Road, Agram Post, Bangalore – 560 007 Now at No.111, Sadaramangala Industrial Area, Whitefield Road, Near ITPL, Bangalore – 560 048 Represented by its Managing Partner Sri.V.P.Thiruvengadaswamy ..PETITIONER (BY SRI.B.G.SURYAKUMAR, ADVOCATE FOR ESSKHAY ASSOCIATES) AND: Sri.S.Selvaraj No.117, Old Madras Road,
Transcript
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF JUNE, 2012
BEFORE:
THE HON’BLE MR. JUSTICE ARAVIND KUMAR
W.P.NO.19333/2012(L-TER)&
W.P.NO.19334/2012 (L-RES)
W.P.NO.19333/2012:
BETWEEN:
M/s.Automobile Service CentreNo.108, Victoria Road,Agram Post,Bangalore – 560 007
Now at No.111,Sadaramangala Industrial Area,Whitefield Road,Near ITPL,Bangalore – 560 048Represented by its
THIS WRIT PETITION IS FILED UNDER ARTICLES 226& 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALLFOR THE ENTIRE RECORDS FROM THE IT BANGALORE INSL APLN.NO.25/94. SET ASIDE THE ORDER DATED08.06.2012 ON THE FILE OF IT BANGALORE IN SL APLN.
NO.25/94 AT ANNEXURE-H AS BEING ILLEGAL,ARBITRARY, NULL AND VOID WITHOUT JURISDICTION ANDIS VIOLATIVE OF SETTLED PRINCIPLES OF LAW.
W.P.NO.19334/2012:
BETWEEN:
M/s.Automobile Service CentreNo.108, Victoria Road,Agram Post,
Represented by itsManaging PartnerSri.V.P.Thiruvengadaswamy ..PETITIONER
(BY SRI.B.G.SURYAKUMAR, ADVOCATE FOR ESSKHAYASSOCIATES)
AND:
Sri.M.Muniyappan
3
C/o S.Babu,No.12/1, III Cross,Laxmipuram,
Ulsoor,Bangalore – 560 008. ..RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLES 226& 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR THE ENTIRE RECORDS FROM THE IT BANGALORE INSL APLN.NO.24/94. SET ASIDE THE ORDER DATED08.06.2012 ON THE FILE OF IT BANGALORE IN SL APLN.NO.24/94 AT ANNEXURE-H AS BEING ILLEGAL,ARBITRARY, NULL AND VOID WITHOUT JURISDICTION ANDIS VIOLATIVE OF SETTLED PRINCIPLES OF LAW.
THESE WRIT PETITIONS COMING ON FORPRELIMINARY HEARING THIS DAY, THE COURT MADE THEFOLLOWING:
O R D E R
Petitioner-management seeks for quashing of the order
passed by Industrial Tribunal in SL application No.25/94 &
24/94 dated 08.06.2012 at Annexure-H in both the writ
petitions.
2. Facts in brief which has necessitated the petitioner
to approach this court invoking extraordinary jurisdiction are
as under:
4
For an alleged misconduct respondents were issued
with articles of charge and domestic enquiry was conducted
and they came to be dismissed from service. Since an
industrial dispute in I.D.39/91 with regard to charter of
demands was pending before Labour Court applications were
filed by petitioner under section 33(2)(b) of Industrial
Disputes Act seeking approval of Industrial Tribunal.
Objections came to be filed to said applications and evidence
of parties came to be recorded. Tribunal held domestic
enquiry conducted was fair and proper and passed an order
rejecting the applications. Aggrieved by the same, petitioner
challenged said orders in W.P.13111/2007 before this court
and order of rejection of application came to be set aside by
this court by remanding the matter back to the Tribunal for
fresh disposal. Thereafter during the pendency of
proceedings before Tribunal an application for amendment of
statement of objections was filed by respondent-workmen
which came to be opposed by petitioner-management.
Tribunal by order dated 08.06.2012 (in both the writ
5
petitions) allowed the applications for amendment of
statement of objections and it is these orders namely dated
08.06.2012 Annexure-H which has been impugned in these
writ petitions by petitioner-management.
3. Heard the arguments of Sri.B.G.Surya Kumar,
learned advocate for petitioner and perused the impugned
orders as also the pleadings of the parties filed before
Industrial Tribunal which is annexed to the petitions.
4. Tribunal after considering rival contentions raised
by parties has allowed the applications by assigning the
following reasons:
(a) By proposed amendment opposite party wants to take up
the plea regarding maintainability of the application and
this being purely a question of law same can be urged at
any stage.
(b) No prejudice would be caused to applicant by allowing the
amendment.
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(c) While considering the amendment application court
cannot examine the merits of amendment, which has been
raised by management.
(d) That proposed amendment is necessary for effective and
complete adjudication of the main application.
5. Learned counsel for petitioner has argued the matter
in extenso by contending that Industrial Tribunal committed
a serious error in allowing the applications without
considering the objections raised by petitioner-management
in proper perspective. He would submit that amendment
should have been refused since the management would be
wholly displaced if the proposed amendment is allowed, since
it would take away the legal right which has been accrued to
management by lapse of time and by operation of law. When
the amendment sought is not in good faith and when it lacks
bonafides allowing such amendment would take away the
admission made by a party in the original proceedings. He
would also elaborate his submission by contending that even
7
otherwise respondent has waived his right by virtue of which
certain rights having accrued to petitioner-management and
on this ground also application for amendment sought should
have been dismissed. He would contend that workmen had
waived their right if any to raise a plea of maintainability of
application by virtue of not raising the same at earlier point of
time and as such they cannot now question the same that too
at this length of time. He would contend that there is
inordinate and abnormal delay of 18 years in filing the
application and as such Industrial Tribunal committed a
serious error in allowing these applications and seeks for
setting aside the order of Tribunal by dismissing the
application for amendment. In support of his submissions he
has relied upon the following Judgments:
(1) AIR 1979 SC 1701 –Union of India Vs Surjit Singh Atwal
(2) AIR 2008 SC 2234 – Chander Kanta Bansal Vs RajinderSingh Anand
(3) 2004(3) AWC 2162 – Devendra Mohan and ors Vs State ofU.P. and others
8
(4) Unreported Judgment from Hon’ble Apex Court in CivilAppeal Nos.4791-4887/2006 dated 10.11.2006 –Chairman, U.P.Jal Nigam and anr Vs Jaswant Singh and
anr.
6. Having heard learned advocate appearing for
petitioner and on perusal of impugned orders it would emerge
that on a order of remand was passed by this court in
W.P.13111/2007 dated 19.09.2007 by consent of learned
advocates appearing for both the parties and order dated
05.12.2006 passed by Industrial Tribunal rejecting the
application filed by petitioner-management, Industrial
Tribunal, Bangalore came to be set aside. Thereafter Tribunal
has taken up applications for consideration afresh. During
the pendency of the proceedings an application under section
11(1) of Industrial Disputes Act, 1947 was filed by workmen
seeking amendment of statement of objections by proposing
to insert paragraph 15 after paragraph 14 whereunder they
have sought to place certain facts which have taken place by
way of amplification. The thrust of the amendment sought for
is to contend that very application made by petitioner-
9
management under section 33(2)(b) was not maintainable
since there was contravention of section 33(1)(b) of the
Industrial Disputes Act. This application came to be resisted
by petitioner-management and as narrated herein supra,
Industrial Tribunal has allowed these applications for the
reasons stated in the impugned order.
7. Before delving upon as to whether Industrial
Tribunal was justified in allowing the application or not I
would like to consider the case laws relied upon by learned
counsel for petitioner since the order of amendment passed
by Industrial Tribunal allowing the applications for
amendment is questioned on the ground it is against the
principles laid down therein:
1. AIR 1979 SC 1701 – Union of India Vs Surjit SinghAtwal
“5. Shri.Bhatt, learned counsel for the appellant
submitted that the suit was based on the agreementof November, 1947 and that this agreement was voidas the provisions of Section 175(3) of the Governmentof India Act, 1935, were not complied with. We do not
10
prima facie agree that the suit was based on anyagreement arrived at in November, 1947. We do not,however, desire to go into the question as we are
satisfied that the Appellate Court was right in holdingthat the defendant was not entitled to raise the plea ofillegality of the agreement, not having so pleaded inthe written statement and not having raised any issuewith regard to it. We agree with the learned Judges ofthe Calcutta High Court that to permit such a plea to
be raised several years after the institution of the suitwould greatly prejudice the plaintiff. If such a pleahad been raised at the appropriate stage, the plaintiffmight have come out with a suitable answer. Hemight have had his own pleadings amended either byseeking to rest his case on the original agreement or
under Section 65 or Section 70 of the Indian ContractAct. We do not wish to speculate on the possiblealternate cases which the plaintiff might have putforward had the plead been raised. We only wish toobserve that the plea that the provisions of Section175(3) of the Government of India Act had not been
complied with is a mixed plea of fact and law. Wefurther agree with the view expressed by the learnedJudges of the Calcutta High Court that the illegality ofa contract must be specifically pleaded as much asthe denial of a contract. Order VI, rule 8 providesthat where a contract is alleged in any pleading, a
bare denial of the same by the opposite party shall beconstrued only as a denial in fact of the expresscontract alleged or of the matters of fact from whichthe same be implied, and not as a denial of thelegality or sufficiency in law of such contract. OrderVIII, Rule 2 Civil Procedure Code prescribes that the
defendant must raise by his pleading all matterswhich show the suit not to be maintainable, or thatthe transaction is either void or voidable in point oflaw. In Kalyanpur Lime Works Ltd., Vs State of Bihar
11
and anr. the Supreme Court reversed the judgment ofthe High Court on the ground that the High Courtwas not justified in allowing to be raised at the same
time of argument the question whether there was acontravention of Section 30 of the Government ofIndia Act, 1915. Reliance was placed upon Order VI,Rule 8 and Order III, Rule 2 of the Civil ProcedureCode 1908. We are, therefore, of the view that theDivision Bench of the High Court was right in holding
that the learned Single Judge was not justified inpermitting the defendant to take up the plea that thecontract was hit by the failure to comply with therequirements of Section 175(3) of the Government ofIndia Act. In the result the appeal is dismissed withcosts.
In this matter, Union of India which was defendant in
the suit filed by plaintiff seeking for payment of amount due
under the bills raised by plaintiff and certain letter which was
contended to be a contract between the parties sought for
amendment of written statement. In the written statement
which was filed initially there was no reference to agreement
which had taken place between the parties. But after filing of
counter statement by defendant, plaintiff sought for
amendment of the plaint and sought to incorporate a plea
with reference to agreement between parties and it was also
12
contended by plaintiff that subsequent to completion of work
there was a conference between parties and an agreement
was entered between parties regarding rates and claimed
certain amounts are due to him came to be allowed.
Thereafter defendant who had agreed or admitted about
contract of execution of work having been entrusted to
plaintiff and work having been completed denied the aspect of
any subsequent conference having been held and agreement
entered into as plea sought to be raised by way of amendment
to written statement was contract in question was hit by
failure of compliance with provision of 175(3) of Government
of India Act, 1935 which application was dismissed. However
suit came to be dismissed on several questions of fact. It was
also held that for want of compliance of section 175(3) of the
Government of India Act, 1935 suit is liable to be dismissed.
On an appeal Division Bench reversed the finding and held
that defendant not having pleaded in the written statement
the contract contravened Section 175(3) of the Government of
India Act, 1935 and no issue having been framed such a plea
13
ought not to have been entertained at a belated stage and
accordingly it decreed the suit. On further appeal by Union
of India this technical plea which had been raised by way of
amendment in the written statement was sought to be put
forward before the Apex Court and same came to be negatived
on the ground that the suit was not based on agreement
alone arrived at in November, 1947 as pleaded in the plaint
but on certain correspondence/letters and as such Apex
Court confirmed the order of Appellate Court since that was
not the plea raised originally. Infact their Lordships have
observed that it is a matter not merely of surprise but
shocking that such a blatant false plea was raised by a
Government in solemn proceedings before Court of law. It
was also observed by Apex Court that the Government which
should set an example as an ideal litigant went to the extent
of raising a false and untenable plea as often raised on behalf
of Government. Judgment of Division Bench that suit was
based on letters originally filed by plaintiff, decree passed by
Division Bench was not interfered by Apex Court. The issue
14
regarding delay was also taken note of by the Apex Court. It
is this observation which is sought to be contended by
learned counsel for petitioner to request this court to take
note of the fact that there has been delay of 18 years in
raising such a plea. At this juncture it requires to be noticed
as to whether such delay would defeat the nature of defence
or the plea of the management. What is sought to be raised
by way of amendment by workman in the statement of
objections is amplification of existing pleadings and nothing
beyond it and thereby questioning the very jurisdiction of the
Tribunal to entertain the application. The issue of jurisdiction
being a question of law can be gone into by the courts even at
the appellate stage though not raised. As such the said
judgment relied upon by the learned counsel for petitioner is
inapplicable to the facts of the present case.
AIR 2008 SC 2234 – CHANDER KANTA BANSAL VS
RAJINDER SINGH ATWAL
In a suit filed for mandatory injunction, an application
for amendment of the written statement came to be filed
15
contending that there was a written agreement entered into
between the parties on 10.9.1992. The suit was filed in the
year 1996 taking note of the fact that even prior to the filing
of the suit, the alleged agreement was in existence and was
available with the defendant and same having not pleaded,
High Court dismissed the application, which came to be
affirmed by the Apex Court.
8. Learned counsel for the petitioner has contended
that the principles enunciated in the said judgment is
squarely applicable to the facts on hand and when the trial is
concluded and the matter is at the stage of arguments, an
application for amendment of statement of objections ought
not to have been allowed. At this juncture itself, it would be
appropriate to state that the amendment of the plaint and
amendment of the written statement stand on two different
footings. In an amendment of the plaint, if a prayer is sought
for, which is time barred, cannot be allowed. Whereas when
amendment of the written statement is sought, the defendant
16
is permitted to even to raise all pleas either by way of
alternative pleas or even inconsistent pleas. This is fortified
by the judgment of the Apex Court in the case of Usha
Balashaheb Swami and Others Vs. Kiran Appaso Swami
and Others reported in AIR 2007 SC 1663. In fact, the
Hon’ble Apex Court has held in the said judgment that
interference by the High Court in the writ jurisdiction under
Article 227 should not be made and it has been held by the
Apex Court as under:
“18. It is equally well settled principle that a
prayer for amendment of the plaint and a prayer for
amendment of the written statement stand on
different footings. The general principle that
amendment of pleadings cannot be allowed so as to
alter materially or substitute cause of action or the
nature of claim applies to amendments to plaint. It has
no counterpart in the principles relating to amendment
of the written statement. Therefore, addition of a new
ground of defence or substituting or altering a defence
or taking inconsistent pleas in the written statement
would not be objectionable while adding, altering or
17
substituting a new cause of action in the plaint may
be objectionable.
19. Such being the settled law, we must hold
that in the case of amendment of a written statement,
the courts are more liberal in allowing an amendment
than that of a plaint as the question of prejudice
would be far less in the former than in the latter case
[see B.K.Narayana Pillai v. Parameswaran Pilllai
(2000 (1) SCC 712) and Baldev Singh & Ors. v.
Manohar Singh (2006 (6) SCC 498)]. Even the decision
relied on by the plaintiff in Modi Spinning (supra)
clearly recognises that inconsistent pleas can be taken
in the pleadings. In this context, we may also refer to
the decision of this Court in Basavan Jaggu Dhobi v.
Sukhnandan Ramdas Chaudhary (Dead) [1995 Supp
(3) SCC 179]. In that case, the defendant had initially
taken up the stand that he was a joint tenant along
with others. Subsequently, he submitted that he was
a licensee for monetary consideration who was
deemed to be a tenant as per the provisions of Section
15A of the Bombay Rents, 1947. This Court held that
the defendant could have validly taken such an
inconsistent defence. While allowing the amendment
18
of the written statement, this Court observed in
Basavan Jaggu Dhobi’s case (supra) as follows:-
“As regards the first contention, we are afraid
that the courts below have gone wrong in holding that
it is not open to the defendant to amend his statement
under Order 6 Rule 17 CPC by taking a contrary stand
than was stated originally in the written statement.
This is opposed to the settled law open to a defendant
to take even contrary stands or contradictory stands,
the cause of action is not in any manner affected. That
will apply only to a case of the plaint being amended
so as to introduce a new cause of action.
29. For the reasons aforesaid, we are unable to sustain
the judgment of the High Court rejecting the application
for amendment of written statement on the ground that
if such amendment was allowed it would seriously
prejudice the plaintiff. There is yet another aspect of the
matter. The trial court on consideration of the written
statement as well as the application for amendment of
the written statement. The High Court ought not to have
reversed the said order of the trial court, rejecting the
application for amendment of the written statement,
19
when the trial court has exercised its discretion in
allowing the amendment of the written statement on
consideration of the principles of law and the material
on record.”
In view of the law laid down by the Apex Court, the
judgment in the case of Chander Kanth Bansal referred to
supra would not come to the rescue of the petitioner in this
case.
9. Learned counsel for the petitioner has raised a plea
that delay itself is sufficient for rejection of the application for
amendment. No doubt, the question as to whether on account
of such delay any right is accrued to the opposite party, so as
to reject the application for amendment, is a question of fact
which has to be examined on case to case basis and no
universal application of law is laid down or can be laid down
in this regard. In fact, the Hon’ble Apex Court in the case of
Andhra Bank Vs. ABN Amro Bank N.V. & others reported
in AIR 2007 SC 2511 has categorically held that delay in
20
seeking the amendment is not a ground and it has also held
while examining such ground, if it encroaches upon
entertaining or considering the merits of such claim, same
should not be permitted. It has been held in the said
judgment as under:
“5. We have heard Mr. Rohit Kapadia, learned
senior counsel appearing for the appellant and Mr.
S.Ganesh, learned senior counsel for the respondent.
We have perused the original written statement as
well as the application for amendment of the written
statement. After going through the written statement
and the application for amendment of the written
statement, we are of the view that the amendment
sought to be introduced by the appellant must be
allowed. From a perusal of the impugned order of the
Special Court we find basically that two grounds
have been taken by the Special Court for rejecting
the prayer for amendment of the written statement.
The first ground is that considerable delay has been
caused by the appellant in filing the application for
amendment of the written statement. It is well
settled that delay is no ground for refusal of prayer
for amendment. Mr.Ganesh, appearing for ABN Amro
21
Bank submits before us that by filing of such an
application for amendment of the written statement
which has been filed with long delay, the appellant
sought to stall the hearing of the suit which has been
fixed on 13th July, 2007. In response to this
Mr.Kapadia, learned counsel for the appellant,
submits that in the event the prayer for amendment
is allowed by us his client undertakes to file the
amended written statement by day after tomorrow,
i.e., 12th July, 2007 before the Special Court. Since,
we are of the view that delay is no ground for not
allowing the prayer for amendment of the written
statement and in view of the submissions made by
Mr.Kapadia, we do not think that delay in filing ten
statement can stand in the way of allowing the
prayer for amendment of the written statement. So
far as the second ground is concerned, we are also
of the view that while allowing an application for
amendment of the pleadings, the Court cannot go
into the question of merit of such amendment. The
only question at the time of considering the
amendment of the pleadings would be whether such
amendment would be necessary for decision of the
real controversy between the parties in the suit.
From a perusal of the amendment application we
22
find that the appellant in their prayer for amendment
has only taken an additional defence that in view of
Section 230 of the Indian Contract Act, the suit itself
is not maintainable. It is well settled, as noted herein
earlier, that at the time of considering the prayer for
amendment of the written statement it would not be
open to the Court to go into the fact whether in fact
the suit in view of Section 230 of the Indian Contract
Act was or is not maintainable.
7. In view of the reasons stated herein above
we are of the view that the order of the Special Court
rejecting the application for amendment of the
written statement filed by the appellant is liable to
be set aside and the prayer for amendment of the
written statement must be allowed. Accordingly, the
application for amendment of the written statement
is allowed and the impugned order is set aside. We
are informed by the learned counsel for the parties
appearing before us, as noted herein earlier, that the
suit has been fixed for hearing on 13th July, 2007
and the parties will not seek any adjournment on
that date. In that view of the matter we direct the
appellant to file the amended written statement by
12th July, 2007 positively and thereafter, the Special
23
Court shall proceed with the hearing of the suit. The
appeal is allowed to the extent indicated above.
There will be no order as to costs”.
In the very same judgment, the Hon’ble Apex Court has
also held that even if there is a new plea raised by way of
defence such amendment is permissible and said conclusion
arrived at by the Hon’ble Apex Court reads as under:
“6. That apart it is permissible in law to amend
a written statement of the defendant by which only
an additional ground of defence has been taken”.
10. In the background of the law laid down by the Apex
Court in ABN Amro Bank’s case, let me now examine as to
whether question of waiver raised by the petitioner herein and
the judgment of the Apex Court in U.P.Jal Nigam and
Another Vs. Jaswant Singh and Another relied upon
would in any way assist the petitioner. In the said case,
Apex Court has held that in the event of acquiescence on the
part of a claimant has resulted in change of position which
occurred on account of defendant’s part, the court can take
24
into consideration the acquiescence for the purpose of
rejecting the claim. In this background when the facts
namely the plea that is sought to be put in the written
statement when examined would clearly go to show that
workmen is questioning the very jurisdiction or
maintainability of the application on the ground of pendency
of I.D.No.39/91, which was pending even as on the date of
application filed by the petitioner. There cannot be any
dispute with regard to pendency of I.D.No.39/91 as on the
date of dismissal of respondent-workmen and as to whether
the said pendency is having any nexus to the present
proceeding or not is a question, which requires to be
examined and it is this precise plea which was sought to be
put forward by the workmen. The management also does not
dispute with regard to the pendency of I.D.No.39/91 and as
such question of acquiescence does not arise and there
cannot be any estoppel against law, the provision of Section
33(1)(b) is mandatory and any amount of waiver or consent
does not confirm jurisdiction on the Industrial Tribunal. Such
25
consent or acquiescence is alien to Section 33(1)(b). In view of
the same judgment relied upon by the learned counsel for the
petitioner in the case of Chairman, Jal Nigam stated supra
does not tilt the scale of balance in favour of the petitioner.
11. The judgment of the Hon’ble High Court of
Allahabad in the case of Devendra Mohan and Others Vs.
State of U.P. and Others reported in 2004 3 AWC 2162
relied upon by the learned counsel for the petitioner to
contend that amendment of pleadings cannot be allowed so
as to completely alter the nature of the suit and the principles
enumerated therein cannot be doubted as held in a catena of
judgments referred therein. As noticed hereinabove, in the
instant case, the very jurisdiction namely the maintainability
of the application filed by the petitioner is sought to be raised
by way of amendment in order to avoid any technical plea
being taken in this regard. Infact, in almost identical
circumstances namely as to whether dispute regarding
amendment of the written statement at a belated stage came
26
up for consideration before the Apex Court in the case of
Baldev Singh and Others Vs. Manohar Singh reported in
AIR 2006 SC 2832, whereunder the application for
amendment of the written statement was filed, which came to
be dismissed on the ground that said issue cannot be raised
and there cannot be inconsistent plea raised by defendant.
However, it came to be set aside by the Hon’ble Apex Court by
holding that amendment of written statement stands on a
different footing as that of the amendment of the plaint and
allowed the application by holding that raising of inconsistent
plea cannot be a ground for rejection of the amendment and
while considering the actual interpretation to be given to the
words “Commencement of Trial” used in Order 6 Rule 17 it
has been held as follows:
“13. In view of this decision, it can
be said that the plea of limitation can be
allowed to be raised as an additional defence
by the appellants. Accordingly, we do not find
any reason as to why amendment of the
written statement introducing an additional
27
plea of limitation could not be allowed. The
next question is that if such amendment is
allowed, certain admissions made would be
allowed to be taken away which are not
permissible in law. We have already
examined the statements made in the written
statement as well as the amendment sought
for in the application for amendment of the
written statement. After going through the
written statement and the application for
amendment of the written statement in depth,
we do not find any such admission of the
appellants which was sought to be
withdrawn by way of amending the written
statement.
14. As noted herein earlier, the
case set up by the plaintiff/respondent No.1
was that his parents had no money to
purchase the suit property and it was the
plaintiff/respondent No.1 who paid the
consideration money. In the written
statement, this fact was denied and further it
was asserted in the written statement that
the suit property was in fact purchased by
28
their parents and they had sufficient income
of their own. In the application for
amendment of written statement it was
stated that the plaintiff/respondent No.1 did
not have any income to pay the consideration
money of the suit property and in fact the
parents of the plaintiff/respondent No.1 had
sufficient income to pay the sale price. It was
only pointed out in the application for
amendment that after the death of their
parents, the suit property was mutated in the
joint names of the plaintiff/respondent No.1
and the defendants in equal shares.
Therefore, the question whether certain
admissions made in the written statement
were sought to be withdrawn is concerned,
we find, as noted herein earlier, there was no
admission in the written statement from
which it could be said that by filing an
application for amendment of the written
statement, the appellants had sought to
withdraw such admission. It is true in the
original written statement, a statement has
been made that it is the defendant
No.1/appellant No.1 is the owner and in
29
continuous possession of the suit property but
in our view, the powers of the Court are wide
enough to permit amendment of the written
statement by incorporating an alternative
plea of ownership in the application for
amendment of the written statement. That
apart, in our view, the facts stated in the
application for amendment were in fact an
elaboration of the defence case. Accordingly,
we are of the view that the High Court as well
as the Trial Court had erred in rejecting the
application for amendment of the written
statement on the ground that in the event
such amendment was allowed, it would take
away some admissions made by the
defendants/appellants in their written
statement. That apart, in the case of Estralla
Rubber vs. Dass Estate (P) Ltd. [(2001) 8 SCC
97], this Court held that even there was some
admissions in the evidence as well as in the
written statement, it was still open to the
parties to explain the same by way of filing
an application for amendment of the written
statement. That apart, mere delay of three
years in filing the application for amendment
30
of the written statement could not be a
ground for rejection of the same when no
serious prejudice is shown to have been
caused to the plaintiff/respondent No.1 so as
to take away any accrued right.
16. This being the position, we are
therefore of the view that inconsistent pleas
can be raised by defendants in the written
statement although the same may not be
permissible in the case of plaint. In the case
of M/s. Modi Spinning and Weaving Mills
Co.Ltd. & Anr. Vs. M/s. Ladha Ram & Co.
[(1976) 4 SCC 320], this principle has been
enunciated by this Court in which it has been
clearly laid down that inconsistent or
alternative pleas can be made in the written
statement. Accordingly, the High Court and
the Trial Court had gone wrong in holding
that defendants/appellants are not allowed
to take inconsistent pleas in their defence.
18. Before we part with this order,
we may also notice that proviso to Order 6
Rule 17 of the CPC provides that amendment
of pleadings shall not be allowed when the
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trial of the Suit has already commenced. For
this reason, we have examined the records
and find that, in fact, the trial has not yet
commenced. 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
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 documents and
addressing of arguments. As noted herein
after, parties are yet 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 discretion to the Court to allow an
amendment of the written statement at any
stage of the proceedings”.
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12. As noted hereinabove, in the instant case, the
Industrial Tribunal has allowed the application in question on
the ground that workman intends to take up a plea regarding
maintainability of the application and if permitted to be
raised, the said plea can be examined and no prejudice would
be caused to the petitioner-Management. I do not find any
infirmity in the said reasoning adopted by Industrial Tribunal.
13. It has also held that parties would be at liberty to
argue or plead as to how such a plea would not have any
bearing on the pending application in order to have an
effective and complete adjudication and thereby has allowed
the applications in question. I do not find any good ground to
interfere for the reasons aforesaid and I do not find any merit
in these petitions. Accordingly, I pass the following
