In CS (OS) 252 OF 2013- DEL HC- Amendment of pleading was to be done only with prior permission of Court under Order VI Rule 17 of CPC and any variation from that was in violation of statutory provisions, says Delhi High Court even as it allows the amendment stating that changes incorporated were somewhat related to facts and statements mentioned in the plaint 
Justice Chandra Dhari Singh [12-06-2023]

Read Order : Yogesh Kumar v Davender Kumar Relan

Simran Singh

New Delhi, June 13, 2023- The Delhi High Court, while reiterating a precedent set by the Supreme Court, held that the power to strike out pleadings was extraordinary in nature and must be exercised by the Court with extreme care, caution and circumspection.

The Single Judge Bench of Justice Chandra Dhari Singh, while dealing with a petition alleging incorporating new paragraphs and contents in the written statement without the leave of the Court -- which may have caused prejudice to the plaintiff -- stated that the Bench was not inclined to strike out the pleadings as prayed because the Court found them necessary as stated above. However, in view of the fact that the defendants had violated the rules of pleadings under the provisions of Code of Civil Procedure,1908 , the Court imposed cost on the defendants as a deterrent, while taking the amended written statement on record.

“Accordingly, the amended written statement of the defendant/non-applicant is directed to be taken on record subject to a cost of Rs. 25,000/- to be deposited in the name of  ‘DHCBA Lawyers Social Security and Welfare Fund’ within two weeks.”

In the matter at hand, the petition prayed for striking off the pleadings in the written statement dated 04-12-2019. The applicant was allowed to amend the plaint by the Coordinate Bench of Delhi High Court and accordingly the defendants had filed a written statement to the amended plaint, wherein they ought to have replied to the newly added paragraphs in the amended plaint. However, the defendants, instead of filing written statement only with respect to the amended portion of the plaint, chose to file a fresh written statement, incorporating new paragraphs and contents in place of their previously filed written statement, without seeking the permission or leave of the Court.

It was averred that the unwarranted changes in the written statement were prejudicial to the plaintiff as these were an afterthought of the defendant and in the garb of that written statement to amended plaint, some new facts and defences had been incorporated without the permission of the Court. Hence, the present application.

The issue for consideration before the Bench was-

1. Whether the amendments and alterations made by the defendants in their written statement were violative of the rules of pleadings and were subject matter of object of this Court under Order VI Rule 16 of Code of Civil Procedure Code, 1908?

b. Whether all the amendments made by the defendants were unnecessary?

Court Analysis

The Bench stated that the Courts had sufficient reach to grant permission for amendment of pleadings, be it a plaint or a written statement. “The Courts, on various occasions, have confidently narrated that the defendant does have a right to get the relief of amendment of written statements. It is to be noted that the same principles apply to amending the written statements as to amending the plaint. In instances where prejudice is less likely to play a role, the Courts have taken a more lenient view in permitting the amendment of a written statement.”

The Bench further stated that the right of the defendant to enter an alternative plea in defence was subject to the conditions that the proposed amendment did not subject the opposing party to inequity and that any admission made in favour of the plaintiff was not revoked. “All amendments to the pleadings that were necessary for facilitating resolution of the actual issues in the case should be permitted, provided that the proposed amendment does not alter or substitute the original cause of action or defence. Inconsistent and contradictory factual allegations that negate the confessed position of the facts or factual allegations that are mutually destructive should not be permitted to be amended into the pleadings. The proposed amendment should not result in a disadvantage for the opposing party that cannot be compensated by costs. No amendment should be permitted that defeats a legal right accruing to the other party due to the passage of time.”

The Court noted that the defendants had amended its written statement in such a way that not only the corresponding paragraphs with respect to the amended portion of plaint was altered, which by far was tenable and permissible. But, other such content which did not correspond to the amended plaint was also altered, modified, edited and redrafted. Thus, the allegations levelled by the plaintiff upon the defendants were found to be true. The defendants had, to some extent, amended its written statement beyond the scope of permissible limits. It was found that various paragraphs had been added, altered, edited, removed and omitted in the written statement which were not corresponding to the amended plaint filed on behalf of the plaintiff.

“The rule and the observation of Courts w.r.t the grant of leave to amend the pleadings is clear. The amendment of pleading can be allowed, but only on an application under Order VI Rule 17 of CPC. The same is considered to be within the four corners of law. But, as it has been seen in the present matter, the defendants have amended its written statement beyond the scope of law defined in Order VI Rule 16 of CPC. The amendments done which are beyond the corresponding amendments of the plaint causes prejudice and embarrassment. It disturbs the fair trial of the suit as it gives the defendants an undue advantage over the plaintiff since the defendants have included new defences and information which were not present in their original written statement before. The defendants have, very cleverly and frivolously, omitted its written statement without obtaining the due permission of law.’’

The Court, while navigating through the second issue, stated that Order VI Rule 16 of CPC permit the Court, at any stage of the proceedings, to strike out any contents / submissions / contentions in the pleading which may be unnecessary, scandalous, frivolous, vexatious or prejudicial or otherwise appeared to be an abuse of the process of the Court.

The Bench held that the defendants in the present case, had acted in malafide and that their blunder had caused injury to his opponent which could be compensated for by an order of cost. It was clearly a negligence, inadvertence or even infraction of rules of procedure on their part. The Court might have taken a sympathetic stand in case the defendants had followed the due process of law for amendment of pleadings.

“The statements in paragraph No. 5 are the omitted, edit and altered statements are carried from the new written statement filed by the defendants. Comparing the same with amended plaint and old written statement, it seems that some of the alterations done by the defendant are done by way of concealing and hiding it in plain sight. New and fresh facts and defences have been included which are not just corresponding to the amended paragraphs of the plaint”

The Bench stated that the same was believed to be done to hamper the arguments and merits of the plaintiff as the plaintiff would be left with no option to respond to the new defences and facts narrated by the defendants in its written statement. This implied the intention of the defendants to be malafide. It was reiterated that the parties had the freedom to make appropriate averments and raise arguable issues until and unless they did not violate the statutory provisions.

It was further held that the parties had not violated the rules of pleadings by making appropriate averments or raising arguable issues, thus, the Court should not order the pleadings to be struck off. It was concluded that amendment of any pleadings was to be done only with the prior permission of the Court under Order VI Rule 17 of CPC, which was the general due process and was an important rule of pleadings prescribed in the CPC, any variation from that was a violation of the rules and statutory provisions. However, the Court was of the view that the changes incorporated were somewhat related to the facts and statements mentioned in the plaint. “The same are found to be necessary as it brings related facts and developments that might be necessary to decide upon the issues involved in the captioned suit.”

The Court perused the amended written statement, filed in reply to the amended plaint, the amendments carried out seem necessary for the adjudication of the instant suit. “The question as to whether the arguments/contentions so raised by defendants in their amended written statement had any merit could be dealt with at a later stage when the suit was adjudicated by the Court, however, at this stage the amendments sought were necessary to be included into the pleadings."