State Of Bihar vs Modern Tent House

The State of Bihar & Ors. ….Appellant(s)

VERSUS

Modern Tent House & Anr. …Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1) This appeal is filed by the defendants against

the final judgment and order dated 17.04.2006

passed by the High Court of Patna in C.R. No. 1249

of 2005 whereby the High Court disposed of the civil

revision filed by the appellants herein while giving

them liberty to raise such question in appeal in case

Signature Not Verified the decision of the Trial Court goes against them. Digitally signed by ANITA MALHOTRA Date: 2017.08.19 12:48:29 IST Reason: 1

2) Facts of the case need not be mentioned in

detail except to the extent necessary for the disposal

of this appeal.

3) The respondents (plaintiffs) have filed a money

suit (Suit No.28 of 2002) in the Court of

sub-Judge-1 Chhabra against the appellants

(defendants) for recovery of Rs.41,59,418/-. The

appellants filed their written statement and denied

therein the respondents' claim by joining issues on

facts. Issues have accordingly been framed on the

basis of the pleadings. It appears that the evidence

of respondents (plaintiffs) is over and that of the

appellants (defendants) remains.

4) The appellants filed an application under

Order 6 Rule 17 of the Code of Civil Procedure 1908

(hereinafter referred as “the Code”) seeking

amendment in their written statement by adding

two Paragraphs in their written statement. The

respondents (plaintiffs) opposed the application.

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5) The Trial Court dismissed the application and

the High Court in revision filed by the appellants

upheld the dismissal giving rise to filing of this

appeal by the defendants.

6) The short question involved in this appeal is

whether the two Courts below were justified in

rejecting the appellants’ (defendants) application for

amendment sought in their written statement under

Order 6 Rule 17 of the Code?

7) It is not in dispute that the suit filed by the

respondents against the appellants out of which

this appeal arises is still pending. It is also not in

dispute that the evidence of the parties is not yet

over. In other words, the trial in the suit is going on.

8) We have perused the amendment application

filed by the appellants. We find that firstly, the

proposed amendment is on facts and the appellants

in substance seek to elaborate the facts originally

pleaded in the written statement; secondly and in

other words, it is in the nature of amplification of

3 the defense already taken; thirdly, it does not

introduce any new defense compared to what has

originally been pleaded in the written statement;

fourthly, if allowed, it would neither result in

changing the defense already taken nor will result

in withdrawing any kind of admission, if made in

the written statement; fifthly, there is no prejudice

to the plaintiffs, if such amendment is allowed

because notwithstanding the defense or/and the

proposed amendment, the initial burden to prove

the case continues to remain on the plaintiffs; and

lastly, since the trial is not yet completed, it is in the

interest of justice that the proposed amendment of

the defendants should have been allowed by the

Courts below rather than to allow the defendants to

raise such plea at the appellate stage, if occasion so

arises.

9) In view of foregoing discussion, the appeal

succeeds and is allowed. The impugned order is set

aside. The application (M.A. No.28 of 2002) dated

4 07.04.2005(Annexure P-4) filed by the appellants

under Order 6 Rule 17 of the Code is allowed. The

appellants (defendants) are permitted to amend

their written statement and incorporate the

amendment as prayed in their application.

10) The respondents (plaintiffs) are also given an

opportunity to amend their plaint and adduce any

further evidence, if they so desire before defendants

are called upon to adduce their evidence.

11) Since the suit is quite old, we direct the Trial

Court to ensure its expeditious disposal in

accordance with law preferably within 6 months

from the date of parties appearance. Parties to

appear before the Trial Court on 04.09.2017.

………...................................J. [R.K. AGRAWAL]

…...……..................................J. [ABHAY MANOHAR SAPRE] New Delhi;

August 16, 2017

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