Can amend my late father ws
SIVA KUMAR
(Querist) 18 August 2017
This query is : Resolved
Sir,
My deceased father filed written statement on 2005 in the trial court, after his demise on 2008 I & my brother are impleaded as legal heirs of him in the trial court even though we have independent right over the suit property through registered partition deed 16 years prior to filing of suit, at present only plaintiff’s side witness completed, Kindly let me know now can we amend my late fathers written statement in the trial court ? if so how
R.K Nanda
(Expert) 18 August 2017
yes, u can amend ur late father WS by filing application in concerned court for amendment of Ws.
R.K Nanda
(Expert) 18 August 2017
you can file said application under order 6 rule 17 of cpc with section 151 of cpc.in court.
SIVA KUMAR
(Querist) 18 August 2017
Thanking you very much sir
can i get any citation
Kumar Doab
(Expert) 18 August 2017
You can benefit from the above post.....
Ms.Usha Kapoor
(Expert) 19 August 2017
the fundamental difference in the approach of Courts whilUsha Balashaheb Swami & Ors vs Kiran Appaso Swami & Ors. explained the law relating to The Bench comprising Justice Tarun Chatterjee and Justice R.V. Raveendran have, in Usha Balashaheb Swami & Ors vs Kiran Appaso Swami & Ors. explained the law relating to The amendment of pleadings. The Bench has highlighte e dealing with a prayer for amendment of the Written Statement vis-a-vis amendment of the Plaint. The bench has observed as under;
Before dealing with the question whether the amendment sought for was rightly rejected by the High Court or not, we may first consider the principles under which amendments of pleadings can be allowed or rejected. The principle allowing or rejecting an amendment of the pleadings has emanated from Order 6 Rule 17 of the Code of Civil Procedure, which runs as under:
"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 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"
(Underlining is ours)
From a bare perusal of Order 6 Rule 17 of the Code of Civil Procedure, it is clear that the court is conferred with power, at any stage of the proceedings, to allow alteration and amendments of the pleadings if it is of the view that such amendments may be necessary for determining the real question in controversy between the parties. The proviso to Order 6 Rule 17 of the Code, however, provides that no application for amendment shall be allowed after the trial has commenced unless the court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. However, proviso to Order 6 Rule 17 of the Code would not be applicable in the present case, as the trial of the suit has not yet commenced.
It is now well-settled by various decisions of this Court as well as those by High Courts that the courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bonafide one. In this connection, the observation of the Privy Council in the case of Ma Shwe Mya v. Maung Mo Hnaung [AIR 1922 P.C. 249] may be taken note of.
The Privy Council observed:
"All rules of courts 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."
(Underlining is ours)
It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.
Such being the settled law, we must hold that in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case [see B.K. Narayana Pillai v. Parameswaran Pillai (2000(1) SCC 712) and Baldev Singh & Ors. v. Manohar Singh (2006 (6) SCC 498)]. Even the decision relied on by the plaintiff in Modi Spinning (supra) clearly recognises that inconsistent pleas can be taken in the pleadings. In this context, we may also refer to the decision of this Court in Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (Dead) [1995 Supp (3) SCC 179]. In that case, the defendant had initially taken up the stand that he was a joint tenant along with others. Subsequently, he submitted that he was a licensee for monetary consideration who was deemed to be a tenant as per the provisions of Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This Court held that the defendant could have validly taken such an inconsistent defence. While allowing the amendment of the written statement, this Court observed in Basavan Jaggu Dhobi's case (supra) as follows :-
"As regards the first contention, we are afraid that the courts below have gone wrong in holding that it is not open to the defendant to amend his statement under Order 6 Rule 17 CPC by taking a contrary stand than was stated originally in the written statement. This is opposed to the settled law open to a defendant to take even contrary stands or contradictory stands, the cause of action is not in any manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action."
As we have already noted herein earlier that in allowing the amendment of the written statement a liberal approach is a general view when admittedly in the event of allowing the amendment the other party can be compensated in money. Technicality of law should not be permitted to hamper the Courts in the administration of justice between the parties. In the case of L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357], this Court observed "that the Courts are more generous in allowing amendment of the written statement as the question of prejudice is less likely to operate in that event". In that case this Court also held "that the defendant has right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to serious injustice."
Keeping these principles in mind, namely, that in a case of amendment of a written statement the Courts would be more liberal in allowing than that of a plaint as the question of prejudice would be far less in the former than in the latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed, we may now proceed to consider whether the High Court was justified in rejecting the application for amendment of the written statement.
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Ms.Usha Kapoor
(Expert) 19 August 2017
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SIVA KUMAR
(Querist) 19 August 2017
Sir / Madam thanking you very much for your valuable reply,
My main question is I & my brother are impleaded as legal heirs of my deceased father,
1) can court permit us to amend deceased defendant's (my father) Written Statement in the trial court who filed WS during his life time in the trial court ?
2) can legal heirs amend death person's Written Statement in the trial court ?
Ms.Usha Kapoor
(Expert) 19 August 2017
Yes! you are allowed to file amended additional written statement in place of your deceased father original written statement in trial court unless you take a completely contradictory stand from that of the original written statement if new facts come to light. As I said in my above judgment courts are allowing amendment t of written statement quite liberally compared to plaints even if some contradictions and inconsistencies are there.
Please recall the following lines in the above Judgement:
"
It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable."
SIVA KUMAR
(Querist) 19 August 2017
MADAM !
THANK YOU VERY MUCH FOR YOUR VALUABLE REPLY AND IMMEDIATE RESPONSE
REGARDS
