Decided on February 21,2006



P.K.Deb, - (1.) THIS appeal has been preferred against the part of the order dated 9.3.2005 passed by the learned Presiding Officer, DRT, Allahabad in T.A. No. 507/2000, whereby and whereunder the prayer of the respondent Bank for amendment sought of their plaint have been allowed.
(2.) There is a history behind the case. Originally a suit was filed by the respondent Bank against the defendant-appellants for realization of dues. After the Tribunal was set up, firstly the original suit was transferred to DRT, Jabalpur and then to DRT, Allahabad and the case was renumbered as T.A. No. 507/2000. Once the case was decided in favour of the respondent Bank and the counter claim made by the defendant-appellants have been rejected. The appeal was filed against such judgment and order before this Appellate Tribunal, which was numbered as Appeal No. R-294/03. The then Chairperson of this Appellate Tribunal heard the appeal and by order dated 24.3.2004 had set aside the issuance of recovery certificate against the defendant-appellants, but upheld the dismissal of the set-off/counter-claim. The case was remanded back to the Tribunal with some directions. Against the remand order as has been stated in the Bar, the appellants had preferred a writ petition before the Hon'ble Allahabad High Court and that writ petition is still pending, but no stay order has been passed and as such on the basis of remand order T. A. No. 507 /2000 was proceeded for fresh disposal. At this stage the respondent Bank filed a petition supported by affidavit on 28.4.2004 seeking some amendment in the plaint itself. In the amendment petition it was mentioned that some typographical error and mistake could be detected in the plaint, which caused the respondent Bank to come up with the amendment petition. Amendment sought for although seems to be of voluminous nature, but if read between the lines, it appears that the same is restricted to interchange of the number of defendants not only in the title page but also in the respective averments in the plaint itself. Some more amendments have been sought by forming another paragraph as 8-A in the plaint and also some more amendments in the paragraph No. 9 of the plaint. But those averments in the amendment do not relate to any new plea, rather those were for giving better particulars about the documents which have been alleged to be executed by the defendants while taking loan, etc. Although vehement objection was made from the side of the defendant-appellants, but the amendment as sought for from the side of the respondent Bank has been allowed and hence the present appeal has been preferred. It is the contention of the learned Counsel for the appellants that such amendment cannot be allowed in view of the direction being given in the remand order. His further submission is that the amendment has been sought and allowed by the impugned order changes totally the nature of the suit. His further submission is that the amendment has been sought very belatedly after about 8 years of filing of the suit and the delay has not been explained properly. All the submissions of the appellants' side have been averted from the side of the respondent stating that the amendment allowed has not in any way changed the nature of the suit. Interchange of the name of the defendants was due to typographical error and mistake and the other amendments relate to give better particulars regarding the claim of the Bank, which is necessary for the purpose of proper and just adjudication.
(3.) ON the submission of the learned Counsel for both the parties, I have perused the judgment of my predecessor by which the case has been remanded to the Tribunal for fresh disposal and also the contents of the amendment sought and the objection raised from the side of the appellants. The appellate judgment does not reveal that remand order was made for consideration of one particular matter, rather it was open remand and regarding fresh disposal on the issues crept up in the case itself. In that way, it cannot be said that the remand order had any debarring clause/ sense in not making any amendment in the plaint. The amendment sought from the side of the respondent Bank do not contain any new or fresh plea nor contended any fresh facts, nor any attempt was made to infringe any right already accrued in favour of the appellants. In that way the amendment have been rightly termed as formal in nature by the DRT in the impugned order. The amendment in the pleadings are governed under Order 6 Rule 17 of the C.P.C. Amendment under that order and rule had been made by the amendment of the CPC in year 2002 and a proviso had been added creating a bar in amendment of the pleadings after the trial being commenced. Here in the present case trial has not yet been commenced after the remand order was made. In that way, it cannot be said that the amendment has been debarred under any provisions of law. In that way amendment allowed cannot be said to be illegal on the face of it. It is true that the amendment has been sought at a very belated date i.e. after 8 years, no explanation has been given from the side of the Bank as to why delay was caused so there is some lacuna on part of he respondent in seeking amendment at a belated date. But when the amendment does not show to have put the appellants in inconvenient and embarrassing position, such delay can be condoned/compensated by money value. The two judgments as cited by the learned Counsel for the appellant are not much relevant in the present circumstances of the case. AIR 1971 SC 2177 relates to amendment being sought in the plaint regarding some other matter, when remand order was restricted to a fresh decision on the ground of resjudicata and hence the Apex Court had rejected such amendment, but in the present case I have already stated that remand order was an open one for fresh , disposal regarding all issues and not a particular-issue or a particular point, hence that judgment has got no relevance in the present case. Other judgment i.e. Suma Devi v. Gain Devi AIR 2003 HP 158, related to negligence/due diligence as contemplated under Order 18 Rule 17-A for the purpose of additional evidence. The principle relating to additional evidence is totally different than provision of Order 6 Rule 17 of the CPC relating to amendment of pleadings. Regarding due diligence I have already stated that the delay although not being explained from the side of the respondent, the same can be compensated by money value.;

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