SHISHIR KUMAR,J. - (1.) HEARD the learned Counsel for the petitioner. This writ petition has been filed by the petitioner to quash the orders dated 16.9.2009 and the order dated 18.2.2006 (Annexures-7 and 5 to the writ petition) by which an amendment application filed by the petitioner in a suit pending before the Judge Small Causes Court has been rejected. The revision filed by the petitioner has also been dismissed.
(2.) LEARNED Counsel for the petitioner submits that in view of the averment made in the application for amendment, it does not change the nature of the suit or no new pleading has been stated by way of filing the amendment application. In the written statement filed by the petitioner a specific averment has already been made that Smt. Jainab Sakina is not a Mutwalli and has no right to sign the plaint. But in spite of the aforesaid fact, the said application has been rejected. He has stated that the plaintiff has got no right or title to file the suit. Reliance has been placed upon a judgment of the Apex Court in the case of Baldev Singh and Ors. Etc. v. Manohar Singh and Anr. reported in A.I.R. 2006 SC 2832 : 2006 SCFBRC 520: 2006 (3) ARC 253 and reliance has been placed upon paragraphs 16 and 17 of the said judgment which are quoted below: "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. And Anr. v. M/s. Ladha Ram and 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. 17. Before we part with this order, we may also notice that proviso to Order VI, Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the 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 VI, 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 hereinafter, 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 VI, 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."
(3.) FURTHER reliance has been placed upon a judgment of the Apex Court ren­dered in the case of Olympic Industries v. Mulla Hussainy Bhai Mulla Akberally 6 Ors. reported in JT2009 (12) SC 545 and reliance has been placed upon para 7 of the said judgment which is quoted as under: "7. Having heard the learned Counsel for the parties and after going through the additional counter statement as well as the original counter state­ment and the application for fixation of fair rent and other materials on record, we are of the view that the High Court was not justified in interfer­ing with the concurrent orders of the rent Control Authorities in the exer­cise of its revisional power. A plain reading of the impugned order of the High Court would show that two grounds were given by the High Court to reject the application for acceptance of the additional counter statement filed by the appellant. The first ground was that the appellant had filed a belated application for acceptance of an additional counter statement when examination of P.W.1 was already over. So far as this ground is concerned, we do not find that delay is a ground for which the additional counter statement could not be allowed, as it is well settled that mere delay is not sufficient to refuse to allow amendment of pleadings or filing of additional counter statement. At the same time, delay is no ground for dismissal of an application under Order VIII, Rule 9 of the Code of Civil Procedure where no prejudice was caused to the party opposing such amendment or acceptance of additional counter statement which could easily be compensated by cost. That apart, the delay in filing the addi­tional counter statement has been properly explained by the appellant. The averments made in the additional counter statement could not be raised by the appellant earlier since the appellant was under the impres­sion that the lease agreement was destroyed in a fire accident and that he incidentally discovered the lease files in an old trunk only in October 1996 while he was cleaning the house for Pooja celebration. This expla­nation, in our view, cannot be rejected. Therefore, the first ground on which the additional counter statement sought to be rejected by the High Court in the exercise of its revisional power, in our view, cannot be sus­tained. The second ground on which the High Court had interfered with the concurrent orders of the tribunal below in accepting the additional counter statement was that a new pleas was raised in the same in re­spect of which there was no slightest basis in then original counter a statement filed by the appellant. According to the High Court, the plea that vacant land was let out to the appellant is a fundamental alteration of the pleadings already put forth by the appellant and the appellant cannot be permitted to introduce totally a new case. The additional counter statement alleging that there was written agreement and that the appel­lant is only a lesseee of vacant site introduces totally a new case which would totally displace the landlord. The High Court held that such a new piea cannot be permitted to be taken by permitting the appellant to file additional counter statement. In our view, this is also not a ground for which the High Court could interfere with the concurrent orders of the Rent Control Tribunal and reject the application for permission to file ad­ditional counter statement. In our view, even by filing an amendment or additional counter statement, it is open to the appellant to add a new ground of defence or substituting or altering the defence or even taking inconsistent pleas in the counter statement as long as the pleadings do not result in causing grave injustice and irretrievable prejudice to plaintiff or displacing him completely. (See : Usha Balasaheb Swami and Ors. v. Kiran Appaso Swami and Ors. (JT2007 (5) SC 476:2007 (5) SCC 602: 2007(2) ARC 402). Therefore, we are unable to agree with the High Court on this ground as well. It is also well settled that the courts should be more generous in allowing the amendment of the counter statement of the defendant then in the case of plaint. The High Court in its impugned order has also observed that in order to file an additional counter state­ment, it would be open to the defendant to take inconsistent plea. The prayer for acceptance of the additional counter statement was rejected by the High Court on the ground that while allowing such additional counter statement to be accepted, it has to be seen whether it was expedient with reference to the circumstances of the case to permit such a pleas being put forward at that stage. As noted herein earlier, the only ground on which the High Court had rejected the acceptance of the additional counter statement was (i) by filing of such additional counter statement, the appellant was introducing a new case and (2) the entire trial was to be reopened causing great prejudice to the respondents whose examination was completed. It was also observed by the High Court that the appellant cannot be able to take such inconsistent plea by filing addi­tional counter statement after cross-examination of the appellant. In our view, the High Court was in error interfering with the concurrent orders of the Rent Control Tribunal, as from the fact stated we find that no preju­dice was caused to the respondents and even if some prejudice was caused that could be compensated by cost. As noted herein earlier, the appellant had already stated in his application for acceptance of addi­tional counter statement the reasons for taking such new plea, viz. He could trace out the lease deed pertaining tot he lease only when he was cleaning the boxes. The respondents have also not disputed as to the existence of the lease deed only they are disputing the filing of the addi­tional counter statement at such a belated stage. This being the position, we are of the view that even if the examination of PW-1 or his cross-examination was over, then also, it was open to the Court to accept the additional counter statement filed by the appellant by awarding some cost against the appellant. It is also well settled that while allowing addi­tional counter statement or refusing to accept the same, the Court should only see that if such additional counter statement is not accepted, the real controversy between the parties could not be decided. As noted herein earlier, by filing an additional counter statement in the present case, in our view, would not cause injustice or prejudice to the respon­dents but that would help the Court to decide the real controversy be­tween the parties. In our view, the High Court was, therefore, no justified in rejecting the application for permission to file additional counter state­ment as no prejudice could be caused to the respondent which would otherwise be compensated in terms of cost." ;