Shekhar B. Saraf, J. - (1.) The present matter relates to an application for amendment of the written statement filed by the defendants. The factual matrix of the case is as follows: a. The plaintiffs have filed this suit in the month of August, 2016 seeking a decree for various sums of money on account of payment of royalty and compensation. b. The brief facts in the plaint are that one Dr. Durlav Chandra Dutta, since deceased, was the original owner of the copyright of certain literary works as also various artistic works. Upon his demise, his daughter being the plaintiff no. 1 became the sole owner of the copyright and was, therefore, solely entitled to receive all royalty thereon. The plaintiff no. 2, the husband of plaintiff no. 1 being a well known doctor had edited the literary works and made valuable contributions to several editions of the text books for a number of years. Owing to differences between the plaintiffs and the defendants, the agreement between them allowing the defendants to publish the literary works were terminated and thereafter the suit was filed for recovery of outstanding royalty and compensation. c. The defendants entered appearance and filed the written statement in the month of March, 2017. Thereafter, the defendants moved an application being G.A. No. 3881 of 2017 for deleting the name of the plaintiff no. 2 from the array of parties. This Court after hearing both the parties, by order dated 19th September, 2018 was pleased to dismiss the said application. Thereafter, being aggrieved and dissatisfied with the order dated 19th September, 2018 the defendants preferred an appeal before the Division Bench of the High Court, and after hearing both the parties, by an order dated 19th December, 2018, the Division Bench dismissed the appeal. The operative portion of the order dated 19th December, 2018 is delineated below: "There appear to be two sets of cause of action pursued in the plaint; one, by the daughter as the heir of the author for outstanding royalty in respect of the book and the other by way of damages for the perceived wrongful conduct of the appellants herein. It is possible that neither cause of action may result in any relief being granted or one of them being declined; but the prayer for deletion of the second plaintiff amounts to a prayer for the dismissal of the suit on merits qua the second plaintiff, which is impermissible ahead of the trial unless the plaint altogether discloses no cause of action. Even in a scenario where the plaint may not disclose any right of some of the plaintiffs, the Court may not entertain a defendant's application for deletion of the names of such plaintiffs; but at the time of the grant of relief, the Court may confine the reliefs to some of the plaintiffs and exclude the reliefs to the other plaintiffs. For the reasons aforesaid, the other impugned dated September 19, 2018 does not call for any interference as no prejudice has been suffered by the appellants thereby. The appellants are left free to canvass whatever grounds they may be entitled to on the merits of the claim or of the individual plaintiffs at the trial. APO No. 381 of 2018 is dismissed. GA No. 3326 of 2018 and GA No. 3382 of 2018 are disposed of. There will be no order as to costs." d. The present application by way of a master summons was affirmed on 17th January, 2019. This Court had directed exchange of affidavits and the parties have filed their respective affidavit in opposition and reply.
(2.) Mr. Siddhartha Banerjee, Advocate appearing on behalf of the defendants submitted that the amendments in the written statement are for correction of certain bonafide mistakes as certain material facts had not been included in the original written statement and such material facts were relevant and necessary to prove the defendants' case. He further submitted that due to some typographical mistakes, some errors were present in the written statement that required correction. He further submitted that some of the amendments were for the purpose of clarifying the statements already made in the written statement. Lastly, he submitted that a new defence for non-joinder of a necessary party has been included in the amended written statement. He, thereafter, relied upon the Supreme Court judgment in Baldev Singh and Others v- Manohar Singh and Another, 2006 6 SCC 498 and Sushil Kumar Jain v- Manoj Kumar and Another, 2009 14 SCC 38 in support of his contention that courts should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. He further submitted that courts are more liberal in allowing the amendment of a written statement as adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. He also submitted that the present amendment application was hit by the proviso to Order 7 Rule 16 of the Code of Civil Procedure, 1908 as the trial in the suit had not commenced.
(3.) Mr. Soumya Roychowdhury, Advocate appearing on behalf of the plaintiffs vehemently opposed the amendments sought to be carried out in the written statement. He submitted that even though courts are required to be liberal in their approach in the matter of amendment to written statement, the court cannot allow the defendants to resile from an admission made in the written statement. He submitted that raising alternative pleas or defences by way of an amendment is permissible but the defendants are not allowed to delete and or correct an admission made in the written statement. He submitted that such a course of action would result in irreparable loss and injury to the plaintiffs. To buttress his argument he placed reliance on the Supreme Court judgment in M/s. Modi Spinning & Weaving Mills Co. Ltd. and Another v- M/s. Ladha Ram & Co., 1976 4 SCC 320 and Ram Niranjan Kajaria v- Sheo Prakash Kajaria and Others, 2015 10 SCC 203. Relying on the aforesaid judgments he submitted that the judgments cited by the defendants in Sushil Kumar Jain (supra) has been overruled in the recent judgment of Ram Niranjan Kajaria (supra) wherein the Supreme Court has held that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment. He further submitted that the proposition of law that even an admission can be withdrawn as held in Panchdeo Narain Srivastava v- Jyoti Sahay,1984 Supp SCC 594 had been overruled in Ram Niranjan Kajaria (supra).;