PLJ 2010
AJ&K 141
Present:
Rafiullah Sultani, J.
AZAD JAMMU
AND KASHMIR COUNSIL throught its Secretary, AJ&K
Council Secretariat,
versus
Messer's
PAIDAR BUILDERS (PVT.)
LIMITED through Engineer Chief Executive Gulberg--Non-petitioner
R.P. No. 18
of 2009, decided on 4.2.2010.
Civil
Procedure Code, 1908 (V of 1908)--
----O.VI, R.
17--Application for amendment in written statement--Suit for declaration, for settlement
of accounts and for cancellation of order--Trial Court rejected amendment
application while partly allowing to extent of preliminary objection--Courts
are liberal and lenient while allowing amendment of
pleadings--Validity--Amendment should not be allowed where amendment sought to
alter the nature of defence or wholly displace written statement
originally--Amendment in written statement like plaint cannot be allowed to be
amended so as to introduce a inconsistent defence which would change nature of
defence originally taken in written statement--Amendment sought for, is for
withdrawal of admission made in earlier written statement--Amendment cannot be
allowed. [P. 147] A
Admission
Made in Written Statement--
----Question
of--Different character and legal significance than admission made in
generally--Validity--Admission made in written statement cannot be allowed to
withdraw through amendment. [P. 147]
B
Civil
Procedure Code, 1908 (V of 1908)--
----O. VI,
R. 17--Application for amendment in written statement--Petitioners were seeking
amendment in almost of written statement, introducing inconsistent defence
which would change nature of defence originally taken by the petitioners in
their earlier written statement--Such like amendment cannot be allowed under
Order 6, Rule 17 of CPC. [Pp.
147 & 148] C
Written
Statement--
----No
substance in eyes of law--Written statement without consulting to their clients
has no substance in the eye of law--Trial Court has neither sworned his own
affidavit nor medical certificate has been placed on record regarding the
accident. [P. 149] D
Civil
Procedure Code, 1908 (V of 1908)--
----S. 115
& O. VI, R. 17--Partly amendment--Grant of--Cancelled in non-compliance of
order of Court to produce the verification of revision--Revision of the
petitioners had been dismissed, needless to decide the maintainability of the
application, according to law--Revision was dismissed. [P. 149] E
Sardar M.R.
Khan, Advocate for Petitioners.
Mr. Mushtaq
Ahmed Janjua, Advocate for Non-Petitioner.
Date of
hearing: 4.2.2010.
Order
This
revision petition is directed against the order of District Judge Bhimber dated
24.11.2008, whereby the application for amendment in written statement filed by
the applicants herein has been rejected partly.
Brief facts
giving rise to instant revision are that non-applicants herein filed a
declaratory suit for settlement of accounts and for cancellation of Order No.
P-1/8/2002/AJKC dated 26.06.2007 alongwith recovery of the amount of Rs. 16,91,500/- against the applicants herein in the Court of
District Judge Bhimber on 23.07.2008. Applicants/defendants appeared before the
Court and submitted written statement and points of issues were framed by the
Court in the light of pleadings of the parties. Later on, an application for
amendment in written statement was filed by the applicants in which it has been pleaded that their counsel filed written
statement without their consultation and on account of that details facts could
not be incorporated in the written statement. When the matter came into the
knowledge of the applicants, they filed an application for amendment in written
statement. Non-applicants have submitted objections on the said application.
Learned District Judge Bhimber, after due course of law, rejected the
application for amendment in written statement filed by the applicants herein
while partly accepted the same to the extent of preliminary Objection No. 5 on
24.11.2008, hence this revision petition.
The learned
counsel for the petitioners argued that the trial Court had fell in error while
rejecting the application for amendment in written statement of applicants. It
is argued that under Order VI, Rule 17 CPC proposed amendment can be allowed
and the same (amendment) is necessary to resolve the controversy between the
parties. It is argued that counsel of the applicants got injuries due to a car
accident which is an act of nature and beyond the control of applicants. On
account of said reason the written statement was submitted without
consultation. It is next argued that proposed amendment would not change the
nature of original defence taken in earlier written statement. In support of
his version, he cited following case law:--2007 MLD 1110.
While
controverting the arguments of the learned counsel for the petitioners, the
learned counsel for the non-petitioner defended the impugned order and argued
that the impugned order passed by District Judge Bhimber is in accordance with
law which requires no interference by this Court in its revisional jurisdiction.
It is argued that proposed amendment would change the nature of original
defence. It is next argued that admission made in written statement cannot be
withdrawn and amendment application has been filed with malafide intention just
to prolong the case and to deprive the non-petitioner from legal right which
has been accrued in his favour after filing of written statement. In support of
his version, he cited following case law:- PLJ 1986 SC
AJK 7 4 & PLJ 1978 SC 314.
I have heard
the learned counsel for the parties and gone through the record of the case
carefully. Plaintiff (non-petitioner herein) filed suit for declaration, for
settlement of accounts and for cancellation of Order No. P-1/8/2002/AJKC dated
26.06.2007 along with recovery of the amount of Rs. 16,91,500/-
against the defendant (petitioner herein) in the Court of District Judge
Bhimber on 16.08.2007. Non-petitioners filed written statement before the trial
Court on 26.05.2008, after availing a lot of opportunities including
opportunity on payment of cost of Rs.200/-. An application for amendment was
filed before the trial Court on 23.07.2008 and objections were submitted by the
non-petitioner on aforesaid application on 18.08.2008. The petitioners sought
proposed amendment in following manner:--
"1. Against para 1 after the word
"Action" aid the words "to file the
instant suit".
2. a. Against
para 2 after the word "Maintainable" aid the words "in the
present form".
b. After the word "present form"
and before the word "Plaintiff" new para 3 may be aided.
3. For para 4 read as under:--
"The plaintiff is liable to pay
special costs under Section 35-A of the Code of Civil procedure".
4. For para 5 read as under:--
"That the plaintiff entered
into contract agreement with defendants for "Construction of Office
Building of Audit and Account Office and Income Tax, Bhimber, AK". On 14.10.03 with a completion period of one year. The
plaintiff did not comply with the terms and conditions of contract agreement as
for as the completion period of one year was concerned. However, on the request
and submitting undertaking by the plaintiff, the completion period of the
project was extended on the request of the plaintiff by 31.12.2006 being last
and final extension (Copy of undertaking and extension order are enclosed as
annex-I/II). The plaintiff was provided another chance to complete the project
by 26.5.2007 by the defendants as gesture of grace (Copy of which is enclosed
as annex-III). However, the plaintiff has miserable failed to complete the
project within the initial as well as extended stipulated period. Rather the
plaintiff has informed the defendant that there firm is not able to complete
the project within the stipulated period. Such refusal was tantamount to the
breach of contract agreement. The plaintiff abandoned the project site.
Therefore, the delinquent firm/plaintiff was served with the impugned order and
informed that the project will be completed at risk and cost of the plaintiff
as per clause 17.1 of the contract agreement (Copy of relevant page of
agreement is enclosed as annex-IV). At present the project has been completed
and detail of amount spent is as under:--
1. Remaining
work completed: Rs.4.739
million
2. 25%
Overhead charges under agreement
clause 17.1g(iii): Rs.
1.185 million
3. Consultant
supervision fee @ 15000/month under clause
16 of Special Conditions of Contract: Rs.0.180
million
Total: Rs.6.104 million
The defendants are entitled to claim
and recover the aforementioned amount of Rs.6.104 million under rule of
set-off.
On Facts
1. For
2. For
3. For
4. For
"The contents of Para No. 4 are
partially correct. The plaintiff was duty hound to mobilize its labour on the
project site within 15 days as per the contract agreement (Copy of relevant
page of agreement is enclosed as annex-V). The plaintiff requested for
provision of drawings on 10.1.2004 and the same was provided, accordingly.
However, the plaintiff cannot agitate these matters at this stage because he
has accepted the changes/transformation of drawings and size etc. without any
protest at appropriate time. He has stopped by his own conduct".
5. For Para 5 read as "The contents
of Para No. 5 are correct to the extent that the Defendant No. 5 was appointed
as consultant for the project; however, it was not obligatory for the answering
defendants to appoint a project Director for the project".
6. For
7. For
8. For Para 8 read as "The contents
of Para No. 8 are incorrect, the date of commencement recorded in Measurement
Book describes the actual date of start of work at site whereas the plaintiff
had to start work at site within 15 days of signing of contract".
9. For
10. For
11. For
12. For
13. For
14. For
15. For
16. For
17. For
18. For
19. For
20. For
21. For
22. For
23. For
24. For
25. For
Prayer:--
It is prayed
that the above amendments may kindly be made in the written statement submitted
on 09.5.08."
Defendant
Through Counsel
Khawaja Amer Rasool Butt
Advocate High Court.
The learned
trial Court rejected the said amendment application while partly allowing the
same to the extent of preliminary Objection No. 5 vide order dated 24.11.2008.
It is correct that Courts are liberal and lenient while allowing the amendment
of pleadings subject to certain conditions. It is settled principle of law that
amendment should not be allowed where amendment sought to alter the nature of
defence or wholly displace written statement originally filed. Amendment in
written statement like plaint cannot be allowed to be amended so as to introduce
a inconsistent defence which would change nature of
defence originally taken in earlier written statement. Coming to the instant
case, I see that amendment sought for, is for the withdrawal of admission made
in earlier written statement, such an amendment cannot be allowed. According to
law, admission made in written statement have
different character and legal significance than admission made in generally.
Admission made in written statement cannot be allowed to withdraw through
amendment. The question of admission has been resolved by the Apex Court of
Pakistan in case titled Secretary to Government (West Pakistan) Now N.W.F.P.
Department of Agriculture and Forests, Peshawar and 4 others Vrs. Kazi Abdul
Kafil, reported in PLD 1978 SC page 242, cap. (e), relevant page
"(d)
Civil Procedure Code;
O. VI, R.
17--Written Statement--Amendment--Both Courts below refusing permission to
appellant Government to amend its written statement so as to enable it to
withdraw an admission made in written statement--View taken by Courts below not
shown to be either perverse or unreasonable but in light of circumstances of
cases appearing to be only possible view--Supreme Court in circumstances
declined to interfere."
I have
reproduced the application for amendment in written statement in earlier part
of judgment which reveals that petitioners are seeking amendment in almost
paragraphs of written statement; introducing
inconsistent defence which would
change nature of defence originally taken by the petitioners in their earlier
written statement. Such like amendment cannot be allowed under Order VI, Rule
17 of CPC.
It was held
in case titled Allah Wasaya and another Vrs. Abdul Rahim, reported in PLD 1953
B.J. 77, which reads as under:--
"It would
therefore be against the interest of justice to allow the defendants which will
introduce an entirely different, new and inconsistent case. I admit that mere
delay is no ground for refusing an amendment but when the amendment is being
proposed with the object of making out a new and inconsistent case, it cannot
be allowed."
It was held
in case titled Hardia Singh and others Vrs. Sardarni Jaswant Kaur, reported in
AIR 1913 Lahore, which reads as under:--
"While
under the terms of Order VI, Rule 17 of CPC leave to amend will be usually
granted for the purpose of determining the real question in controversy between
the parties and a delay by a party is not a sufficient ground for refusing
permission to amend even at a late stage of a trial, yet he cannot be permitted
to do so, if the proposed amendment happens to introduce a totally inconsistent
case and the application for leave to amend made after a great deal of
delay."
It is held
in case titled G Meknezie & Co (1919) Ltd. Vrs. Tatanlal Surajmall,
reported in AIR 1935 Pat. page 463, which reads as
under:--
"The
significance of delay lies not in the quantity of time that has elapsed but in
what has transpired during that time. The main point in consideration whether
leave should be granted to any party to amend his pleadings is whether in the
words of Order VI, Rules 17 CPC, the amendment is necessary for the purpose of
determining the real questions in controversy between the parties.
On the
question of amendment of pleadings two complimentary propositions arise;
Firstly, that the determination of the real questions in controversy is the
prime object of the frame and settlement of the pleadings, and, on the other
hand, that leave to amend should not be granted if the amendment would convert
the case set up into another of a different and inconsistent character. The
Court will not allow an amendment that would involve a complete change of front
in the defence."
The argument
of the learned counsel for the petitioners that learned counsel for
the petitioners in
trial Court submitted written
statement without consulting to their clients/petitioners due to injuries in
road accident; has no substance in the eye of law. Even otherwise, the learned
counsel for the petitioner in trial Court has neither sworned his own affidavit
nor the medical certificate has been placed on the record regarding the
accident.
There is
also an application on the record for consideration of order of District Judge
Bhimber dated 02.03.2009 through which the order dated 24.11.2008 regarding
grant of partly amendment has been cancelled in non-compliance of order of the
Court to produce the verification of revision. The aforesaid order has been not
challenged properly before this Court. Even otherwise, the revision of the
petitioners has been dismissed, needless to decide the maintainability of the
aforesaid application, according to law.
In view of
above discussion, findings of the learned trial Court have been stand in
accordance with law and supported by sound reasons which cannot be disturbed in
revisional jurisdiction of this Court. I find no merit in instant revision
petition which is hereby dismissed.
Revision
petition dismissed.
(R.A.) Revision
dismissed.