Amendments To A Written Statement Can Be Allowed Even If It Amounts To Addition Of New Grounds Of Defence : JKL High Court

The Jammu and Kashmir and Ladakh High Court recently ruled that while allowing amendment of a written statement the general principle is that the amendment should be allowed even if it amounts to addition of new grounds of defense, substituting or altering a defence or taking inconsistent pleas in the written statement.

A bench comprising Justice Sanjay Dhar however made it clear that "the same principle cannot be applied while considering an application for amendment of a plaint as the same stands on a different footing. Adding, altering or substituting a new cause of action in the plaint is certainly objectionable".

The bench was hearing a plea in terms of which the petitioner had challenged order of Munsiff court whereby application filed by him seeking amendment of the plaint was dismissed.

The petitioner premised his challenge on the ground that the amendment sought is necessary for determining the real controversy between the parties. Petitioner further contended that for the purpose of advancing the cause of justice, the amendment sought by the plaintiff should have been allowed.

Taking recourse to the available record the bench noted that the petitioner/plaintiff had filed a suit against respondents seeking a decree of declaration, declaring the adoption deed by the deceased Salam Bhat in favour of defendant No.1-Mohammad Iqbal, as null and void, so far as rights of the plaintiff are concerned.

A further decree of declaration declaring that the plaintiff is owner in possession of one half of the land left behind by deceased Salam Bhat was also sought and lastly a decree for partition of the suit property in two equal shares had also been sought.

Record further revealed that during the pendency of the suit, the petitioner filed an application seeking amendment of the plaint by virtue of which the plaintiff claimed himself to be the exclusive owner in possession of the landed property left behind by deceased Salam Bhat and also sought substitution of the relief of partition with the relief of possession against the defendants with a permanent injunction restraining the defendants from changing the nature of one half of the suit land, which is in their possession.

The application was contested by the defendants and the trial court passed the impugned order whereby application of the plaintiff was dismissed on the ground that the amendment sought by the plaintiff is not necessary for adjudication of the matter pending before it.

Justice Dhar observed that Order 6 Rule 11 is clear that the pleadings can be amended at any stage of the proceedings and Court has to be liberal in allowing the prayer for amendment. However, the bench clarified the different yardsticks that have to be adopted for making amendments to the plaint and that of the written statement.

Elucidating the difference, Justice Dhar stated that while allowing amendment of a written statement, general principle is that the amendment should be allowed even if it amounts to addition of new grounds of defence,substituting or altering a defence or taking inconsistent pleas in the written statement, however, the same principle cannot be applied while considering an application for amendment of a plaint as the same stands on a different footing.

Applying the law in vogue to the instant matter the bench observed that in the original plaint, the plaintiff claimed a decree of partition in respect of the suit property against the defendants whereas by way of proposed amendment, he has sought substitution of relief of partition by a decree of possession of whole of the property left behind by deceased Salam Bhat and thus, the plaintiff sought to change the very nature of the suit.

"Even the cause of action is sought to be changed by the plaintiff by amending the para of the plaint which relates to the cause of action. In the original suit, the plaintiff has claimed that he had sought partition of the property from defendant No.1 and when he refused,he filed the suit but by way of proposed amendment, the plaintiff has pleaded that he had sought possession of the property from defendant No.1 which he refused", the court recorded.

The bench further added that inconsistent pleas can be taken and even subsequent events can be allowed to be incorporated by way of amendment but not when the total cause of action is going to be changed. There is no doubt that liberal approach has to be adopted while considering an application for amendment of the pleadings in order to avoid multiplicity of litigation but it does not mean that the plaintiff should be permitted to set up a total new cause of action or incorporate new pleas which are inconsistent with the pleadings of the original plaint, the bench explained.

Accordingly the bench found the petition devoid of any merit and dismissed the same.

Case Title : Abdul Aziz Bhat Vs Mohammad Iqbal Bhat & Ors.

Citation : 2022 LiveLaw (JKL) 256

Coram : Justice Sanjay Dhar

Counsel For Petitioner : Mr Rizwan ul Zaman Bhat

Counsel For Respondent : Mr Mubashir Gatoo

Click Here To Read/Download