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).
4. He placed paragraphs 15 and 16 of the proposed amended written statement to indicate that crystal clear admissions had been made therein by the defendants and the attempt to change the word "plaintiffs" to "plaintiff no. 1" would result in withdrawal of an admission made by the defendants in favour of the "plaintiff no. 2".
5. Mr. Roychowdhury thereafter placed his affidavit in opposition to indicate the two orders that had been passed by the Single Bench and the Division Bench of this Court in the application made by the defendants for deletion of plaintiff no. 2 from the array of parties. He submitted that having failed to get the plaintiff no. 2 deleted from the array of parties, the defendants are now attempting to circumvent the orders passed by this Court by carrying out the particular amendments in the written statement.
6. At this juncture, I would like to examine the law in relation to amendment of pleadings and quote the relevant paragraphs of the judgments cited by both the parties. The relevant paragraphs in Baldev Singh and Others (supra) are delineated below:
"8. It is well settled by various decisions of this Court as well as the High Courts in India 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. In this connection, reference can be made to a decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung, (1922) AIR PC 249 : (1920-21) 48 IA 214 ] in which the Privy Council observed: (IA pp. 216-17)
"All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit."
15. Let us now take up the last ground on which the application for amendment of the written statement was rejected by the High Court as well as the trial court. The rejection was made on the ground that inconsistent plea cannot be allowed to be taken. We are unable to appreciate the ground of rejection made by the High Court as well as the trial court. After going through the pleadings and also the statements made in the application for amendment of the written statement, we fail to understand how inconsistent plea could be said to have been taken by the appellants in their application for amendment of the written statement, excepting the plea taken by the appellants in the application for amendment of written statement regarding the joint ownership of the suit property. Accordingly, on facts, we are not satisfied that the application for amendment of the written statement could be rejected also on this ground. That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. 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. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case.
16. This being the position, we are therefore of the view that inconsistent pleas can be raised by the defendants in the written statement although the same may not be permissible in the case of plaint. In Modi Spg. and Wvg. Mills Co. Ltd. v. Ladha Ram & 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 the defendant-appellants are not allowed to take inconsistent pleas in their defence."
7. In Sushil Kumar Jain (supra) the Supreme Court relied on Panchdeo Narain Srivastava (supra) while considering the issue with regard to amendment of admissions. The relevant paragraphs 12, 13 and 15 are provided below:
"12. In our view, having considered the averments made in the application for amendment of the written statement, it cannot be said that in fact neither any admission was made by the appellant in his original written statement nor had the appellant sought to withdraw such admission made by him in his written statement. That apart, after a careful reading of the application for amendment of the written statement, we are of the view that the appellant seeks to only elaborate and clarify the earlier inadvertence and confusion made in his written statement. Even assuming that there was admission made by the appellant in his original written statement, then also, such admission can be explained by amendment of his written statement even by taking inconsistent pleas or substituting or altering his defence.
13. At this stage, we may remind ourselves that law is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle.
"15. 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."
15. Keeping these principles in mind, let us now take up the question raised before us by the learned counsel for the parties. As stated hereinearlier, the admission made by a defendant in his written statement can be explained by filing the application for amendment of the same. This principle has been settled by this Court in Panchdeo Narain Srivastava v. Jyoti Sahay, (1983) AIR SC 462: 1984 Supp SCC 594 ] , while considering this issue, held that the admission made by a party may be withdrawn or may be explained. It was observed in para 3 of the said decision as follows: (SCC p. 595)
"3. An admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn."
8. In M/s Modi Spinning & Weaving Mills Co. Ltd. and Another (supra), the Supreme Court had held that admissions made in the written statement could not be withdrawn as the same would cause irretrievable prejudice to the plaintiff. The relevant paragraphs are delineated below:
"6. The defendants-appellants approximately 3 years after the filing of the written statement made an application for amendment of the written statement. The proposed amendments were for deletion of paragraphs 25 and 26 and for substitution of two new paragraphs 25 and 26. The proposed amendment in para 25 was that by virtue of the agreement the plaintiff was appointed a mercantile agent and the plaintiff acted in that capacity in placing orders on the defendants. The defendants further denied the allegation of the plaintiff that the plaintiff placed orders with the defendants in the plaintiff's capacity as a purchaser. The defendants also alleged that the plaintiff throughout acted as an agent of the defendants. In paragraph 26 of the proposed amendment it was alleged by the defendants that being a mercantile agent and an agent of the defendants in accordance with the terms of the agreement, the plaintiff has no locus standi to file the suit.
9. The decision of the trial court is correct. The defendants cannot be allowed to change completely the case made in paragraphs 25 and 26 of the written statement and substitute an entirely different and new case.
10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial court."
9. The Supreme Court in a very recent judgment in Ram Niranjan Kajaria (supra), upon examination on various precedents on the subject laid down the law with respect to amendment of written statement. While doing so, the Supreme Court overruled the judgment in Panchdeo Narain Srivastava (supra) in relation to withdrawal of an admission. The relevant paragraphs 18 to 24 are delineated below:
"18. The learned counsel appearing for the appellant mainly referred to three judgments of this Court. In Modi Spg. and Wvg. Mills Co. Ltd. v. Ladha Ram & Co., (1976) 4 SCC 320 , it was held as follows at para 10: (SCC p. 321)
"10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paras 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial court."
19. In Gautam Sarup v. Leela Jetly, after considering Panchdeo Narain Srivastava [Panchdeo Narain Srivastava v. Jyoti Sahay,1984 Supp SCC 594] and Modi Spg. and Wvg. Mills Co. Ltd. v. Ladha Ram & Co., (1976) 4 SCC 320 and several other decisions dealing with the amendment on withdrawal of admissions in the pleadings, it was held at para 28 as follows: (Gautam Sarup case [Gautam Sarup v. Leela Jetly, (2008) 7 SCC 85 , SCC p. 94)
"28. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other."
20. On amendments generally, in the decision reported in Revajeetu Builders and Developers v. Narayanaswamy and Sons, (2009) 10 SCC 84 : (2009) 4 SCC (Civ) 37] , after referring to Gautam Sarup [Gautam Sarup v. Leela Jetly, (2008) 7 SCC 85] , the principles on amendment have been summarised at para 63. It has been held as follows: (Revajeetu Builders case, (2009) 10 SCC 84: (2009) 4 SCC (Civ) 37] , SCC p. 102)
"63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and
(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule
17. These are only illustrative and not exhaustive."
21. In the case before us, we are afraid, many of the factors referred to above, have not been satisfied. It is significant to note that Defendants 5 and 12, after moving an application for amendment withdrawing the admissions made in the written statement, have filed a substantive suit attacking the alleged relinquishment of their claim in the family property and we are informed that the trial is in progress. In that view of the matter, we do not propose to deal with the matter any further lest it should affect the outcome of the suit filed by Defendants 5 and 12 since the declaration sought in the suit filed in 2005 is to take away the basis of the said relinquishment of the claim in the suit property. However, as far as amendment is concerned, the attempt to wholly resile from the admission made after twenty-five years, we are afraid, cannot be permitted.
22. Delay in itself may not be crucial on an application for amendment in a written statement, be it for introduction of a new fact or for explanation or clarification of an admission or for taking an alternate position. It is seen that the issues have been framed in the case before us, only in 2009. The nature and character of the amendment and the other circumstances as in the instant case which we have referred to above, are relevant while considering the delay and its consequence on the application for amendment. But a party cannot be permitted to wholly withdraw the admission in the pleadings, as held by this Court in Nagindas Ramdas v. Dalpatram Ichharam, (1974) 1 SCC 242 . To quote para 27: (SCC pp. 251- 52)
"27. From a conspectus of the cases cited at the Bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could [Ed.: The word "could" has been emphasised in original.] be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong."
23. We agree with the position in Nagindas Ramdas, (1974) 1 SCC 242 and as endorsed in Gautam Sarup [Gautam Sarup v. Leela Jetly, (2008) 7 SCC 85] that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment. To that extent, the proposition of law that even an admission can be withdrawn, as held in Panchdeo Narain Srivastava [Panchdeo Narain Srivastava v. Jyoti Sahay,1984 Supp SCC 594] , does not reflect the correct legal position and it is overruled.
24. However, the admission can be clarified or explained by way of amendment and the basis of admission can be attacked in substantive proceedings. In this context, we are also mindful of the averment in the application for amendment that:
"11. Mahabir Prasad Kajaria died at the age of 24 years on 7-5-1949 when Defendant 5 was only 2 years and Defendant 12 was only 21 years. Till the death of Mahabir and even thereafter, the petitioners had been getting benefits from income of the joint properties. Defendant 5 and his two sisters, namely, Kusum and Bina were brought up and were maintained from the income of the joint family properties. The petitioners after the death of Mahabir, they continued to live in the joint family as members and till now as members of the joint family. In the marriage of the two sisters of Defendant 5 Kusum and Bina (now after marriage Smt Kusum Tulsian and Smt Bina Tulsian) the expenses were wholly borne out from the incomes of the joint family properties. The said facts are well known to all the family members and their relations."
10. To encapsulate the judgments discussed above, it is clear that the courts are liberal in granting amendments of written statements as compared to amendments of plaints. Furthermore, amendments with regard to raising inconsistent and new pleadings may be allowed in a written statement. However, it is to be noted that an admission once made in the written statement cannot be permitted to be withdrawn by way of an amendment.
11. I have examined the proposed amendments sought for by the applicants herein and am of the opinion that the amendments in paragraphs 10, 17 and 24 are amendments for the purpose of further explanation of the averments already made in the written statement. Secondly, the amendment sought for in paragraph 13 is an obvious typographical error. Furthermore, the addition of point 4 and 5 in the 'Document relied upon by Defendants' are also by way of explanation and accordingly the said amendment is allowed. In light of the same, I see no reason why such amendments cannot be allowed. Hence, the proposed amendments in paragraphs 10, 13, 17 and 24 and point 4 and 5 in the 'Document relied upon by Defendants' are allowed.
12. With regard to the amendments in paragraphs 15 and 16, wherein the defendants wish to amend the word "
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plaintiffs" with "plaintiff no. 1", I am of the view that these are categorical admissions that have been made by the defendants and cannot be allowed to be withdrawn. It is also clear that having not succeeded in deleting plaintiff no. 2 from the array of parties, the defendants has now sought for these amendments. At this stage, allowing the amendment would result in an admission made by the defendants in favour of plaintiff no. 2 to be resiled/withdrawn. In my view, this would definitely prejudice and cause irreparable injury to the plaintiff no. 2. In light of the same the amendments sought for in paragraphs 15 and 16 are disallowed. This shall of course not prevent the defendants to raise issues with regard to these paragraphs at the time of framing of the issues. 13. The amendment sought in paragraph 20 is a paragraph added at the end of paragraph 20 and is required to be delineated below for a clear understanding of the said amendment. The said proposed amendment is provided below: "These defendants state that inspite of having knowledge regarding the said Appeal the said Jay Pee Brothers Medical Publisher by a letter dated 2/1/2019 have threatened these defendants to initiate civil/criminal proceeding on the alleged ground of printing/publishing and/or selling of the aforesaid text books. These defendants shall rely upon the said letter dated 2/1/2019 at the time of hearing. These defendants submit that Jay Pee Brothers Medical Publisher is a necessary party in this Suit." 14. As is clear from the above, the defendants have sought to introduce a letter dated 2nd January, 2019 filed by a third party in the written statement long after filing of the first written statement. The same cannot be allowed as the letter is an event that has taken place subsequent to the filing of the written statement in the suit. However, the last sentence in the paragraph that reads as "These defendants submit that Jay Pee Brothers Medical Publisher is a necessary party in this Suit." relates to an additional defence being taken by the defendants in relation to Jay Pee Brothers Medical Publisher. As the first part of the paragraph 20 has already referred to Jay Pee Brothers Medical Publisher, the amendment seeking addition of Jay Pee Brothers Medical Publisher as a necessary party in the suit is allowed. Ergo, only the statement "These defendants submit that Jay Pee Brothers Medical Publisher is a necessary party in this Suit." in paragraph 20 of the proposed amended written statement is allowed to be added as an amendment. 15. Accordingly G.A. No. 298 of 2019 is disposed of. 16. All parties are to act on the basis of this order to be downloaded from the official website of this High Court.