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mahesan (Advocate)     01 November 2017

Additional written statement

the case posted for defendant side further witnesses. now the defendants are filed additional written statement. same is maintainable or not in this stage.



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 6 Replies

Vijay Raj Mahajan (Advocate)     01 November 2017

Amendment of the pleadings (in this case the written statement of the defendent) can be allowed at any stage before the finalisation of the case by final order of the court.

manoj   01 November 2017

The amendment of written statement should not be allowed after commencement of trail. The Provision of Order 6 Rule 17 CPC to amend the pleadings the petitioner should prove that whether there is any due dilignece on petitioner side, otherwise such amendments should not be allowed. There are number of supreme court judgments after commencement of trail, the amendments should not be allowed. If you want I will provide Judgments on this issue.

manoj

advocate

8686159292

 


(Guest)

Thanks  I was also thinking on this point.

  In one case when trial started and one witness cross completed but Act under whose provision the suit was filled that act was  amended and Hon. Court can not grant the relief claimed in the plaint hencefoth. 

So at this point I was thinking of moving application to amend Written Statement and I am pretty sure it will be allowed looking at circumstances of the case. 

But now Question
1) Which arose in such case after the amendment of the written statement is done in this fashion whether the preliminary issue can be framed regarding maintainability of the suit at this stage and decided ?  or we need to add Issue with other Issue ?

Because it will be  a waste of dates and case can run for years and at last, the case will be dismissed for non-maintainability and required relief cannot be given as it is now prohibited in the act

mahesan (Advocate)     02 November 2017

Thanku sir Pls provide me some judgements sir

Vijay Raj Mahajan (Advocate)     02 November 2017

If you so insist here is the Supreme Court case law in Rajesh Kumar Aggarwal & Others vs K K Modi & Others Appeal (civil) 5350-5351 of 2002 decided on 22.03.2006, where amendment should be allowed at any stage: Order 6 Rule 17 of CPC reads thus: "17) Amendment of Pleadings - The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." This rule declares that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The proviso enacts that no application for amendment should be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter for which amendment is sought before the commencement of the trial. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. Order VI Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case.

Azhagananth (Lawyer)     04 November 2017


ORDER 8 RULE 9 of C.P.C. Subsequent pleadings.- No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit: but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.


- it gives discretion to the Court concerned to allow the subsequent pleadings, for which it is not necessary whether that defence was available on the date of filing of the original written statement or not - The Courts shall exercise their discretion liberally, when it will not affect the right of the party -

https://indiankanoon.org/doc/43952799/ - Check the link to view the judgment squarely appicable to ur question.


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