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CASE NO.:

Appeal (civil) 6327 of 2001

PETITIONER:

M/S. ESTRALLA RUBBER

Vs.

RESPONDENT:

DASS ESTATE (PRIVATE) LTD.

DATE OF JUDGMENT: 12/09/2001

BENCH:

D.P. Mohapatra & Shivaraj V. Patil

JUDGMENT:

WITH

CIVIL APPEAL NO. OF 2001

(Arising out of SLP (C) No. 8737 of 2001)

J U D G M E N T

Shivaraj V. Patil, J.

CIVIL APPEAL NO. OF 2001

(Arising out of SLP (C) No.3581 of 2001)

Leave granted.

This appeal by the defendant in the suit, aggrieved by

and directed against the order dated 15th September, 2000 made

in CO 665 of 2000. The plaintiff filed suit against the

defendant in respect of suit property for eviction on the

ground of reasonable requirement for building or rebuilding and

on the ground of default in payment of rent. The defendant

filed an application under Section 17(2) and 17(2A) of the West

Bengal Premises Tenancy Act, 1956 (for short the Act) raising

certain contentions including that the relationship of landlord

and tenant did not exist between the parties. Thereafter the

defendant filed an application for amendment under Order VI

Rule 17 of the Code of Civil Procedure. The said amendment

application was contested by the plaintiff. The Trial Court

rejected the application, taking a view that the proposed

amendment would be inconsistent and it will have the effect of

displacing the plaintiff from admission made by the defendant.

The defendant filed a revision petition against the said order

under Section 115A of the CPC before the District Judge who

allowed the revision petition, reversed the order of the trial

court and allowed the amendment application filed by the

defendant. It is, thereafter, the plaintiff filed petition

under Article 227 of the Constitution of India before the High

Court. The High Court set aside the order of the District

Judge. Hence this appeal.

The learned counsel for the appellant strongly contended

that the High Court was not right and justified in exercising

power under Article 227 of the Constitution of India as an

appellate or a revisional court without bearing in mind that

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the power under Article 227 is one of the superintendence; it

was not correct to say that the defendant wanted to withdraw

the so-called admission said to have been made in favour of the

plaintiff, when no such admission was there as a matter of

fact. He added that the proposed amendment was only to support

the defence already taken by elaboration based on the revenue

records. It was not shown as to how any prejudice would be

caused to the plaintiff by allowing the amendment; a mere delay

in filing application for amendment is itself not a ground to

reject the same; the proposed amendment was necessary to

adjudicate the dispute between the parties and to avoid further

litigation.

Per contra, the learned counsel for the respondent made

submissions supporting the impugned order passed by the High

Court. He urged that in the proposed amendment application,

the defendant has taken inconsistent plea; he wanted to take

away the effect of admission made earlier in favour of the

plaintiff.

We have considered the submissions made on behalf of

either side. The High Court set aside the order passed by the

learned District Judge stating that the proposed amendment will

have the effect of displacing the plaintiff from admission made

by the defendant in its petition filed under Sections 17(2) and

17(2A) of the Act and that such admission could not be

permitted to be withdrawn. We have perused the relevant

records including the original application and the proposed

amendments. We are not able to see any admission made by the

defendant as such, which was sought to be withdrawn. By the

proposed amendment the defendant wanted to say that Ala Mohan

Das was a permissive occupier instead of owner. The further

amendment sought was based on the entries made in the revenue

records. It is not shown how the proposed amendment prejudiced

the case of the plaintiff. It is also not the case of the

plaintiff that any accrued right to it was tried to be taken

away by the proposed amendment. The proposed amendment is to

elaborate the defence and to take additional plea in support of

its case. Assuming that there was some admission indirectly,

it is open to the defendant to explain the same. Looking to the

proposed amendments it is clear that they are required for

proper adjudication of the controversy between the parties and

to avoid multiplicity of judicial proceedings. The High Court

also found fault with the defendant on the ground that there

was delay of three years in seeking amendment to introduce new

defence. From the records it cannot be said that any new

defence was sought to be introduced. Even otherwise, it was

open for the defendant to take alternate or additional defence.

Merely because there was delay in making the amendment

application, when no serious prejudice is shown to have been

caused to the plaintiff so as to take away any accrued right,

the application could not be rejected. At any rate, it cannot

be said that allowing amendment caused irretrievable prejudice

to the plaintiff. Further, the plaintiff can file his reply to

the amended written statement and fight the case on merits.

The impugned order passed by the High Court exercising

jurisdiction under Article 227 of the Constitution to set aside

the order passed by the learned District Judge in revision

under Section 115A of the CPC allowing the amendment

application filed by the defendant, is patently erroneous and

unsustainable. In the impugned order the High Court observed

that the order of the learned District Judge was apparently

wrong but in our view it is otherwise.

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The scope and ambit of exercise of power and jurisdiction

by a High Court under Article 227 of the Constitution of India

is examined and explained in number of decisions of this Court.

The exercise of power under this Article involves a duty on the

High Court to keep inferior courts and tribunals within the

bounds of their authority and to see that they do duty expected

or required by them in a legal manner. The High Court is not

vested with any unlimited prerogative to correct all kinds of

hardship or wrong decisions made within the limits of the

jurisdiction of the courts subordinate or tribunals. Exercise

of this power and interfering with the orders of the courts or

tribunal is restricted to cases of serious dereliction of duty

and flagrant violation of fundamental principles of law or

justice, where if High Court does not interfere, a grave

injustice remains uncorrected. It is also well settled that

the High Court while acting under this Article cannot exercise

its power as an appellate court or substitute its own judgment

in place of that of the subordinate court to correct an error,

which is not apparent on the face of the record. The High

Court can set aside or ignore the findings of facts of inferior

court or tribunal, if there is no evidence at all to justify or

the finding is so perverse, that no reasonable person can

possibly come to such a conclusion, which the court or Tribunal

has come to.

This Court in Ahmedabad Mfg. & Calico Ptg. Co. Ltd vs.

Ramtahel Ramanand and Ors. [AIR 1972 SC 1598] in para 12 has

stated that the power under Article 227 of the Constitution is

intended to be used sparingly and only in appropriate cases,

for the purpose of keeping the subordinate courts and tribunals

within the bounds of their authority and, not for correcting

mere errors. Reference also has been made in this regard to the

case Waryam Singh & Anr. vs. Amarnath & Anr. [1954 SCR 565].

This court in Babhutmal Raichand Oswal vs. Laxmibai R. Tarte

and Anr. [AIR 1975 SC 1297] has observed that the power of

superintendence under Article 227 cannot be invoked to correct

an error of fact which only a superior court can do in exercise

of its statutory power as a court of appeal and that the High

Court in exercising its jurisdiction under Article 227 cannot

convert itself into a court of appeal when the legislature has

not conferred a right of appeal. Judged by these pronounced

principles, the High Court clearly exceeded its jurisdiction

under Article 227 in passing the impugned order.

It is fairly settled in law that the amendment of

pleadings under Order 6, Rule 17 is to be allowed if such an

amendment is required for proper and effective adjudication of

controversy between the parties and to avoid multiplicity of

judicial proceedings, subject to certain conditions such as

allowing amendment should not result in injustice to the other

side; normally a clear admission made conferring certain right

on a plaintiff is not allowed to be withdrawn by way of

amendment by a defendant resulting in prejudice to such a right

of plaintiff, depending on facts and circumstances of a given

case. In certain situations a time barred claim cannot be

allowed to be raised by proposing an amendment to take away

valuable accrued right of a party. However, mere delay in

making an amendment application itself is not enough to refuse

amendment, as the delay can be compensated in terms of money.

Amendment is to be allowed when it does not cost serious

prejudice to the opposite side. This Court in recent judgment

in B.K. Narayana Pillai vs. Parameswaran Pillai and another

[(2000) 1 SCC 712], after referring to number of decisions, in

para 3 has stated, thus: -

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3. The purpose and object of Order 6

Rule 17 CPC is to allow either party to

alter or amend his pleadings in such

manner and on such terms as may be just.

The power to allow the amendment is wide

and can be exercised at any stage of the

proceedings in the interests of justice on

the basis of guidelines laid down by

various High Courts and this Court. It is

true that the amendment cannot be claimed

as a matter of right and under all

circumstances. But it is equally true

that the courts while deciding such

prayers should not adopt a hyper technical

approach. Liberal approach should be the

general rule particularly in cases where

the other side can be compensated with the

costs. Technicalities of law should not

be permitted to hamper the courts in the

administration of justice between the

parties. Amendments are allowed in the

pleadings to avoid uncalled-for

multiplicity of litigation.

In para 4 of the same judgment this Court has quoted the

following passage from the judgment in A.K. Gupta and Sons Ltd.

Vs. Damodar Vally Corporation [1966 (1) SCR 796]: -

The general rule, no doubt, is that a

party is not allowed by amendment to set

up a new case or a new cause of action

particularly when a suit on new case or

cause of action is barred: Weldon v. Neal

[(1887) 19 QBD 394 : 56 LJ QB 621]. But

it is also well recognized that where the

amendment does not constitute the addition

of a new cause of action or raise a

different case, but amounts to no more

than a different or additional approach to

the same facts, the amendment will be

allowed even after the expiry of the

statutory period of limitation: See Charan

Das v. Amir Khan [AIR 1921 PC 50 : ILR 48

Cal 110] and L.J. Leach and Co. Ltd. V.

Jardine Skinner and Co. [AIR 1957 SC 357 :

1957 SCR 438].

This Court in the same judgment further observed that the

principles applicable to the amendment of the plaint are

equally applicable to the amendment of the written statement

and that the courts are more generous in allowing amendment of

the written statement as the question of prejudice is less

likely to operate in that event. It is further stated that the

defendant has a right to take alternative plea in defence

which, however, is subject to an exception that by the proposed

amendment the other side should not be subjected to serious

injustice and that any admission made in favour of the

plaintiff conferring right on him is not withdrawn.

Applying the above stated principles to the case on hand

we have no hesitation to state that the impugned order of the

High Court is unsustainable.

In view of what is stated above this appeal is entitled

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to succeed. Accordingly it is allowed, the impugned order is

set aside and the order passed by the learned District Judge is

restored. No Costs.

CIVIL APPEAL NO. 6328 OF 2001

(Arising out of SLP (C) No. 8737 of 2001)

Leave granted.

The facts stated and contentions raised in this appeal

are similar to those in Civil Appeal No...../2001 (Arising out

SLP(C) No. 3581/2001) relating to amendment. Hence this appeal

is also allowed. The impugned order of the high Court

confirming the order of the courts below is set aside and the

amendment application filed by the defendant is allowed. No

costs.

..................J.

[D.P. Mohapatra]

..................J.

[Shivaraj V. Patil]

September 12, 2001